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Other Civil Liberties Problems

Although gun control advocates trust the police to know whom to arrest, the experience of gun control leads one to doubt police judgment. A Pennsylvania resident was visiting Brooklyn, New York, to help repair a local church when he spotted a man looting his truck. The Pennsylvania man fired a warning shot into the air with his legally registered Pennsylvania gun, scaring off the thief. The police arrived too late to catch the thief but arrested the Pennsylvania man for not acquiring a special permit to bring his gun into New York City.[60] In California a police chief went to a gun show and read to a machine gun dealer the revocation of his license; the dealer was immediately arrested for possessing unlicensed machine guns.[61]


The Bureau of Alcohol, Tobacco and Firearms has been particularly outrageous in its prosecutions. Sometimes the BATF's zeal to inflate its seizure count turns its agents into Keystone Kops. One year in Iowa, for example, the BATF hauled away an unregistered cannon from a public war memorial; in California it pried inoperable machine guns out of a museum's display.
In the early 1970s changes in the price of sugar made moonshining unprofitable. To justify its budget, the BATF had to find a new set of defendants. Small-scale gun dealers and collectors served perfectly. Often the bureau's tactics against them are petty and mean. After a defendant's acquittal, for example, agents may refuse to return his seized gun collection, even under court order. Valuable museum-quality antique arms may be damaged when in BATF custody. Part of the explanation for the refusal to return weapons after an acquittal may lie in BATF field offices using gun seizures to build their own arsenals.[62]
The BATF's disregard for fair play harms more than just gun owners. BATF searches of gun dealers need not be based on probable cause, or any cause at all. The 1972 Supreme Court decision allowing these searches, United States v. Biswell, has since become a watershed in the weakening of the Constitution's probable cause requirement.[63]
Lack of criminal intent does not shield a citizen from the BATF. In United States v. Thomas, the defendant found a 16- inch-long gun while horseback riding. Taking it to be an antique pistol, he pawned it. But it turned out to be short-barreled rifle, which should have been registered before selling. Although the prosecutor conceded that Thomas lacked criminal intent, he was convicted of a felony anyway.[64] The Supreme Court's decision in United States v. Freed declared that criminal intent was not necessary for a conviction of violation of the Gun Control Act of 1968.[65]
The strict liability principle has since spread to other areas and contributed to the erosion of the mens rea (guilty mind) requirement of criminal culpability.[66] U.S. law prohibits the possession of unregistered fully automatic weapons (one continuous trigger squeeze causes repeat fire). Semiautomatic weapons (which eject the spent shell and load the next cartridge, but require another trigger squeeze to fire) are legal. If the sear (the catch that holds the hammer at cock) on a semiautomatic rifle wears out, the rifle may malfunction and repeat fire. Accordingly, the BATF recently arrested and prosecuted a small-town Tennessee police chief for possession of an automatic weapon (actually a semiautomatic with a worn-out sear), even though the BATF conceded that the police chief had not deliberately altered the weapon. In March and April of 1988, BATF pressed similar charges for a worn-out sear against a Pennslyvania state police sergeant. After a 12-day trial, the federal district judge directed a verdict of not guilty and called the prosecution "a severe miscarriage of justice."[67]
The Police Foundation has proposed that law enforcement agencies use informers to ferret out illegal gun sales and model their tactics on methods of drug law enforcement.[68] Taking this advice to heart, the BATF relies heavily on paid informants and on entrapment--techniques originated during alcohol prohibition, developed in modern drug enforcement, and honed to a chilling perfection in gun control. So that BATF agents can fulfill their quotas, they concentrate on harassing collectors and their valuable rifle collections. Undercover agents may entice or pressure a private gun collector into making a few legal sales from his personal collection. Once he has made four sales, over a long period of time, he is arrested and charged with being "engaged in the business" of gun sales without a license.[69]
To the consternation of many local police forces, the BATF is often unwilling to assist in cases involving genuine criminal activity. Police officials around the nation have complained about BATF's refusing to prosecute serious gun law violations.[70]
In 1982 the Senate Subcommittee on the Constitution investigated the BATF and concluded that the agency had habitual engaged in

conduct which borders on the criminal. . [E]nforcement tactics made possible by current firearms laws are constitutionally, legally and practically reprehensible. . . . [A]pproximately 75 percent of BATF gun prosecutions were aimed at ordinary citizens who had neither criminal intent nor knowledge, but were enticed by agents into unknowing technical violations.[71]


Although public pressure in recent years has made the BATF a somewhat less lawless agency, it would be a mistake to conclude that the organization has been permanently reformed.
One need not like guns to understand that gun control laws pose a threat to civil liberties. Explained Aryeh Neier, former director of the

American Civil Liberties Union:

I want the state to take away people's guns. But I don't want the state to use methods against gun owners that I deplore when used against naughty children, sexual minorities, drug users, and unsightly drinkers. Since such reprehensible police practices are probably needed to make anti-gun laws effective, my proposal to ban all guns should probably be marked a failure before it is even tried.[72]




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