In this installment of the NRA’s Legal Scholar Interview Series, Joseph G.S. Greenlee interviews David T. Hardy. Dave is an attorney and pioneering Second Amendment scholar. He served for ten years as an attorney in the U.S. Department of the Interior’s Office of the Solicitor and helped draft and advocate for the Firearm Owners’ Protection Act of 1986. Dave has written extensively on the Second and Fourteenth Amendments, including influential articles cited by the U.S. Supreme Court in McDonald v. City of Chicago.
[00:00] JOSEPH GREENLEE: Hello, my name is Joseph Greenlee and this is the latest video in our series in which I interview authors about their Second Amendment scholarship. Our guest today is David Hardy. Dave has been writing about the Second Amendment for over half a century, during which time he’s produced seven books and roughly thirty law review articles. Dave is among the very small handful of scholars who I would say really saved the Second Amendment from the collective rights interpretation of the right that gained prominence during the twentieth century—not so much among the American public, but certainly among elites in the media, academia, and very importantly, among judges across the country. His historical research irrefutably proved that the Second Amendment protects an individual right, which the Supreme Court ultimately agreed with and held in 2008. So I believe that everyone who values the right to keep and bear arms owes a tremendous debt of gratitude to Dave for his incredibly important work.
Today we will be discussing, not his very important research on whether the Second Amendment protects an individual or collective right, but an article that Dave published in 1986 entitled “The Firearms Owners’ Protection Act: A Historical and Legal Perspective.” Thank you very much, Dave, for joining us, especially today on your 75th birthday. And a very happy birthday to you.
[01:27] DAVID HARDY: Yes. Thank you, thank you.
[01:29] JOSEPH GREENLEE: So, to start, we should probably note that you were involved in the passage of the Firearms Owners’ Protection Act of 1986. Can you please provide some background on that?
[01:40] DAVID HARDY: Well, I worked with NRA from 1979 onward as a consultant, specifically organizing congressional hearings into misconduct by the Bureau of Alcohol, Tobacco and Firearms, which was going wild in those days. I organized several congressional hearings into the abuses. And then ultimately, I had some role in the negotiations that led up to the 1986 Firearms Owners’ Protection Act, because we would go over to Treasury headquarters in the evenings—I was working in D.C. at the time—and negotiate with them: “How do we solve this problem?” They would say, “We have a problem. How do we solve it?” So I was pretty heavily involved. Yeah, that would be correct. And I was present during the Senate debates on it and its passage, although I wasn’t watching it; I was listening over a loudspeaker in the Capitol Building. So, yes, I’m fairly exposed to the Firearms Owners’ Protection Act.
[02:51] JOSEPH GREENLEE: All right. Good. So you’ll know what you’re talking about here.
[02:54] DAVID HARDY: Yep.
[02:55] JOSEPH GREENLEE: So you start the article by stating that understanding the 1986 amendments made by the Firearms Owners’ Protection Act to the Gun Control Act of 1968 is critical to a comprehension of federal firearms laws as they now exist. Why is that? And does it still hold true today?
[03:14] DAVID HARDY: Yes. In fact, within the last month or so, I was doing some research on the Gun Control Act and I was forcibly reminded of how relevant it is because in certain sections, you’ll take an annotated version of the statute with little notes as to different interpretations. Large portions of it—the history—are just of the Gun Control Act. You can’t cite those cases. They were pre-1986 cases. So you have court cases construing the law, and they’re still being published. But you have to know that before ‘86, in ‘86 we changed the whole law. So you can take all the cases before ‘86 and just cross them off, for very significant portions of the Gun Control Act. That is true. I forget how many Supreme Court decisions we basically overruled in the legislation, but I think it was five, six, or seven—and wiped out entire bodies of case law from lower courts, that sort of thing. I mean, it was a dramatic change in the statute.
[04:23] JOSEPH GREENLEE: So following the structure of your article, it may help listeners to first walk through the first major federal firearms laws, leading up to the Firearms Owners’ Protection Act, known as FOPA. Let’s begin with the National Firearms Act of 1934. Can you please summarize what restrictions the National Firearms Act imposed, the significance of that act, and any background to its passage that you think people should know?
[04:52] DAVID HARDY: Sure. The National Firearms Act of 1934 was passed at a time when the courts had not established a broad federal power over interstate commerce and anything within one hundred yards of interstate commerce. Back then they took a very narrow view of Congress’s Commerce Clause powers. So Congress tried to get around that by using its taxing power. They imposed a $200 excise tax on every sale of certain firearms, basically machine guns, short-barreled shotguns, short-barreled rifles, and “any other weapon.” I’ll get to “any other weapon” in a second. But basically you have to send in a tax return every time you transfer one of those. And the tax return is, of course, used to register it. So they wanted registration and they did so by imposing a tax on it. The “any other weapon” category got in. Originally, there would have been a $5 tax on handguns. So they wanted to register all handguns.
Thanks to NRA’s opposition, that came out and it was originally worded as “handgun or any other concealable weapon.” And once they took the handgun out, they didn’t take out the other weapon section. So if you have a gun that is neither a rifle, a shotgun, nor a handgun, you have to register it and pay your $5 tax. Anyway, that just got in by a quirk in the drafting. It applies to things like cane guns and, you know, circular guns—things that are neither a rifle, a shotgun, nor a pistol. So, yes, anyway, that was the National Firearms Act. And the government keeps track of all the guns on the NFA list, as it’s called, but it did not apply to regular handguns, rifles, and shotguns; those weren’t within the National Firearms Act at all.
[07:01] JOSEPH GREENLEE: And then the next federal law that was passed was the Federal Firearms Act of 1938.
[07:07] DAVID HARDY: Yes.
[07:08] JOSEPH GREENLEE: How did that act regulate the possession or sales—
[07:10] DAVID HARDY: Well that act related to conventional rifle, pistol, and shotgun. So, it imposed basically a requirement for a dealer—or a person who engaged in the business of dealing in them—to get a federal license. And he had to keep very general records. And I think you had to write, basically write down your name and address next to the firearm and serial number, but it wasn’t much more than that. And the licenses were very easy to get, and as I recall, they were only necessary if you engaged in interstate commerce and were engaging in the business. So if you were just selling guns, swapping guns, that sort of thing, but not buying them from a manufacturer interstate, you didn’t have to get a license. So it was the beginning of federal control.
[08:13] JOSEPH GREENLEE: You note that the early versions of the Gun Control Act of 1968 were drafted with the assistance and encouragement of firearms manufacturers. What was their motivation for supporting the early versions?
[08:29] DAVID HARDY: That’s a portion of history that we’d like to forget about. The motivation was, prior to 1968, you could import surplus military rifles from all over the world, and all the nations of the world were going from bolt action to semi-automatic or full automatic. So, all these countries had scrap military guns that they were willing to sell off for almost nothing. People were buying them and setting up major mail-order houses. Chicago was a big hub, and they would sell you— I can remember a Mauser ‘98 for $20. Springfield ‘03, which was what I bought for $40. And everything else you can imagine for prices that even then were incredibly low. So what people were doing was buying a military rifle, then spending a little more money and converting it into a sporterized rifle for deer hunting. They made good deer-hunting guns for about half the cost of buying a, you know, manufacturer-made civilian gun. That was killing their business.
So the first efforts at what became the Gun Control Act of 1968 started out as a ban on buying foreign surplus and importing it, and later became a ban on interstate sales, except through a licensed dealer. Both of those were meant to just basically stop that entire industry. And so that’s why the manufacturers were coming in and they were the ones promoting it initially. I had a quotation from several of Senator Dodd’s staffers, Dodd being the initiator of the Gun Control Act, where they talked about manufacturers’ representatives would come into their congressional offices all the time and suggest changes to the legislation, etc. So, yes, this started out as a gun industry proposal.
[10:35] JOSEPH GREENLEE: The Bureau of Alcohol, Tobacco and Firearms, as it was then known, was responsible for enforcing the Gun Control Act. You explained that roughly 40 percent of the ATF’s manpower previously was directed at enforcing alcohol taxes. But once that problem essentially vanished, the agency sought to kind of prove a need for firearms operations. Agents and supervisors were assigned quotas, and the ultimate result was zealous enforcement of the Gun Control Act. This, perhaps predictably, led to grave injustices, which ultimately led to the enactment of the Firearms Owners’ Protection Act. Can you provide, please, some of the examples of the types of prosecutions that the Firearms Owners’ Protection Act was aimed to prevent?
[11:22] DAVID HARDY: Oh, sure. The two big ones back then were dealing without a license because the Gun Control Act simply said you had to get a federal license if you were engaged in the business of dealing in firearms. No definition of “engaged in the business.” So they took the position and successfully put people in prison for this, that if you sold or swapped, say, four to six guns over a period of a year, you were engaged in the business and didn’t have a license. So that was a federal felony. They would go through and bust gun collectors. Like I say, they’d be stuck with a felony record and they would confiscate their entire collection. So then they could report, you know, “We made, whatever, ten arrests for dealing and seized a thousand guns.” Yeah. It made them look real good in these statistics. But none of these guys were criminals or dealing with criminals. They were collectors.
The other one was a straw-man sale, which is when one guy comes in and buys a gun, meaning to give it to another person, and straw-man sales were then prosecuted as basically giving false information—putting down the wrong guy as the buyer. Well, what they would do would be they would go into a dealership and drop little hints that the guy who’s buying it isn’t the one who’s paying for it. And then they would bust the dealer, or at least take away his license off and prosecute him for aiding and abetting a straw-man sale. So that was the second one.
Then there was a third kind of case. It was done to a dealer named Richard Bolan up in Maryland. He was a dealer out of his house and also owned personally owned guns. So the ATF agents got him to sell them one of his personally owned guns, and then went back and charged him with being a dealer and having made an unrecorded sale.
And, yes, he was saying, “This was my personal gun. This was never part of my inventory.” And their argument was, “Well, the statute says the dealer must record all sales. It doesn’t say of his inventory.” And so they actually got him convicted on a felony. That became a little embarrassing to them since I discovered that the head of ATF had written a senator saying, “This has never been our position. We have never taken the position that a gun dealer must record his personal sales from his personal collection.” And so, in court, the defendant was able to introduce this letter from the head of the agency, saying, “Everything I did was legal.” And then they had to introduce an affidavit from the head of the agency saying, “I guess I was wrong. We’ve always taken the position that it’s illegal.” Anyway, those were the three big forms of abuse.
Coupled with widespread confiscation, if they had a claim against the dealer, they confiscated his entire inventory; if they had a claim against the collector, they confiscated his entire collection, and argued it was intended to be used in violation of law, and therefore we can seize it. I mean, they were seizing some fine collector’s pieces, I can tell you.
[15:03] JOSEPH GREENLEE: So you focus on three areas in which the Gun Control Act dramatically expanded federal control over firearms transactions. The first is which transferors were required to obtain a federal firearms license. The second is transactions between residents of different states, and the third is individuals who were prohibited from acquiring or possessing a firearm. FOPA, you explained, substantially affected all three of these categories of proscribed acts. So, if we can, please walk through those now. Starting with federal firearms licenses, the Gun Control Act significantly expanded the scope of the licensing requirement under the 1938 Federal Firearms Act. A license was required only for those who both engaged in the business of dealing in firearms and ship firearms in interstate commerce. But the Gun Control Act expanded that requirement to reach anyone who was engaged in the firearms business or ship firearms as part of such a business. How did FOPA narrow the dealer licensing requirements created by the Gun Control Act?
[16:09] DAVID HARDY: Well, it took “engaged in the business” and actually gave a definition for the term, I believe, multiple sales of firearms primarily for the purpose of earning a profit. Then there was an exclusion: this does not apply to collectors exchanging or improving or liquidating their collection. So we basically, you know, protected the collector from being busted for his gun show exhibit. Also, the one thing that was really big was we inserted a proof of a state-of-mind requirement into most, if not all of the categories of the Gun Control Act because up until then it was strict liability. It was like speeding: If you do 40 in a 35 zone, you can be cited whether you knew you were doing 40 or not. And they were arguing the Gun Control Act was the same way. So whether you thought you were violating the law had no bearing upon whether you were guilty. And, for some of the violations, we required to be willful.
That is, you have to show the person knew he was breaking the law in some way at the time. And a few of them are “knowingly,” which means you have to show the person knew what he was doing, even if he didn’t know what the law was. But that, too, was a massive change and also helped dealers—or, excuse me, collectors— who were faced with being busted because I believe that one was “willfully.” So you’d have to show the guy knew that he was doing something illegal. If he did it innocently, you can’t prosecute him. So it was a massive help to gun collectors.
[18:15] JOSEPH GREENLEE: So moving next to the interstate sales, as I understand it, the Omnibus Crime Control and Safe Streets Act of 1968 would have allowed certain interstate long-gun sales, so long as the purchaser could lawfully acquire the firearm under the laws of his home state. But the Gun Control Act was passed before that act took effect and generally barred sales to out-of-state residents. How did the Firearms Owners’ Protection Act change the law governing interstate sales?
[18:46] DAVID HARDY: I’d have to go back in my memory, but I believe what we did was put it so that you could sell a gun between states. I think a rifle or shotgun was okay if the transaction met the laws of both states, and a pistol had to go through a licensed dealer in the recipient state. And so you had that capacity. Now, up until then in the Gun Control Act, they had the contiguous state exception, which was weird. Basically, you could transfer to another person in another state, so long as both states had passed laws saying our residents can transfer between each other and the state was contiguous to you; you couldn’t do it one state over. So, I mean, it was a rather strange approach. Lord only knows why they did it that way, but with FOPA it was much broader. Now, of course, you have to find a dealer who can, you know, look up the published statutes of the other state and is willing to go through with it.
But, yes, if you can find such a person, you could handle that sort of transaction.
[20:04] JOSEPH GREENLEE: What effect did FOPA have on the inspection and acquisition of licensees’ records?
[20:11] DAVID HARDY: Well, as I’m trying to think, the original was, you had to turn them in when you went out of business. And there was, I think, a 20-year limit; you could dispose of records more than 20 years back. I don’t recall that FOPA affected that much. They did have a provision saying they could not come up with any new, post-1986 grabs of records from dealers. But the problem was that in 1986, you already had several provisions, such as out-of-business dealers. And they could also send a letter demanding that a specific dealer send back information, but it basically froze it at that point in time. So if they wanted to come up with anything new from 1986 to the current day, they weren’t allowed to do it in terms of requiring a dealer to turn over his records.
[21:09] JOSEPH GREENLEE: And I believe FOPA also changed licensee penalties and revocations. Would you be able to summarize those changes?
[21:23] DAVID HARDY: Oh, sure. On the penalty section, I’ve already mentioned the insertion of knowing and willful requirements for violations so that a simple, innocent transaction couldn’t generally be prosecuted. With revocation of a dealer’s license, the process still isn’t fair at all, but this made more fair. If a dealer gets his license revoked by ATF and he appeals to the federal district court, for example, the federal district court can have what’s called a de novo hearing. That is, from the beginning—basically, not trying was the agency was irrational when it denied the license, but whether it should be denied at all. And so the dealer can bring in information that didn’t come in in the ATF hearing, and that sort of thing. As I say, it’s still unfair, but it’s a lot less unfair today than it was back then.
[22:29] JOSEPH GREENLEE: One of the lesser-known parts of FOPA involves attorney-fee awards against the federal government. Can you please describe FOPA’s attorney-fee provision?
[22:41] DAVID HARDY: Yeah, certainly. The general rule in American law is that you cannot recover attorney’s fees if you win a case. So, as a general rule, everybody who is being prosecuted or sued winds up out of pocket for thousands or tens of thousands of dollars in attorney’s fees, even if they win. So FOPA had two provisions there. One was that, if the legal contest is over the seizure of firearms and the gun owner gets his firearms returned, the court shall award a reasonable attorney’s fee. So it’s mandatory. And as regards any other misconduct that winds up in court, the court can—not has to, but can—award attorney’s fees if it was—I forget the phrase, but “vindictive” is one of them—basically brought totally without any good reason at all or just to get even with the gun owner. The court can award attorney’s fees. The interesting part is that later on, maybe ten or twenty years later, Congress enacted a similar provision with regard to vexatious prosecutions in all other cases.
So in that way, FOPA was the leader. It showed, first of all, how this sort of thing could be done for all federal cases. And I’m constantly telling people, you know, if you’re an attorney and you have a case, itemize your hours for the forfeiture and confiscation separately from your hours for the case in general, because that part is a mandatory attorney’s fee if you win. But if your records weren’t specific enough to tell you how much time was spent on this one type of work versus another, you’re out of luck.
[24:44] JOSEPH GREENLEE: FOPA also addressed interstate transportation of firearms. What was the concern there and how did FOPA address it?
[24:53] DAVID HARDY: Oh yeah. Section 926A, I think. The concern was that a whole bunch of honest gun owners were getting arrested when in the course of traveling from one place where their gun ownership was completely legal to another place where their gun ownership would be completely legal. They passed through New York or New Jersey or something like that, and wound up charged with felonies under the local law because it wasn’t legal there. And so we put a provision that as long as the firearm was, I think, , in a locked container, unloaded, and in a compartment separate from the passenger compartment, if that was possible. That is, if you weren’t riding a motorcycle, that you would be protected. Now, it does have—it’s an affirmative defense. So what can still happen to gun owners is they get arrested and the government just says, well, tell it to the judge. Okay. You go to trial, you prove it. It’s an affirmative defense and are acquitted.
But basically, you wind up sitting in a local jail for quite some time beforehand. That was one thing that we couldn’t get through. We had to make it an affirmative defense to get the votes. But other than that, it’s pretty good protection.
[26:23] JOSEPH GREENLEE: So last but not least, the Hughes amendment has become one of the defining features of FOPA, especially for many younger observers—maybe the only part of the law that they really recognize. Can you explain what the Hughes amendment did and how it made its way into the act?
[26:43] DAVID HARDY: I have some special knowledge there. Getting it through the House. We got it through the Senate. That was enough of a fight. We got it through the House; it was almost a miracle. Representative Volkmer, who was the sponsor on the House side, was facing the fact that the Democratic leadership—the House was then Democratic—was, of course, totally opposed to any bill that would protect gun owners. In fact, after it passed the Senate, they pronounced it dead on arrival. And the only way to get past that was you had to have a discharge petition, which meant you had to get a majority of the entire House to sign a petition to discharge the Judiciary Committee and bring it up for a floor vote. So they got it. They actually got a majority vote, largely from Democrats bucking their own leadership. So it was going to come up in this way. And when it came up, it was still a close call.
And Representative Hughes proposed an amendment which essentially said, you cannot register a machine gun made after the effective date of this act. You can register and you can transfer machine guns that already existed—they were grandfathered in—but no new ones could go to the average civilian collector. The way that got in, I was in Congressman Volkmer’s office before it came up for a vote, and he told me that there were three proposals for amendment. One was to ban silencers—the same thing, grandfather them in. Another was machine guns. I forget what the third one was, and he said they’re going to pass one of them. And I said, which one? And he said, I can’t tell you because they’re going to pass one of them. And it isn’t because they think it’s good. It’s because they want to have something to say. When the opposition—the anti-gunners—come back and say, Congressman or Senator, you caved in to the NRA. Then you’ll be able to say, “No. But I also voted for this amendment over here. See? So I’m not totally their tool.” But, I mean, that’s how laws are made. I mean, they’re going to pass one of the three and I can’t tell you which one. And as it turned out, the one that passed was the Hughes amendment relating to machine guns. But that was ultimately the price of getting the legislation. And I think Hughes, when he got it attached, was counting on the fact that we might see that as a poison pill and turn down the rest of the bill to avoid that. Well, it didn’t happen that way. There were internal fights, but it didn’t happen that way.
[29:41] JOSEPH GREENLEE: So given everything we’ve covered today, all the expanded protections for gun owners, but also the Hughes amendment, would you say that FOPA was a net positive for gun rights?
[29:55] DAVID HARDY: Oh, yes. I mean, the people who think that it wasn’t weren’t around in the years leading up to 1986. I mean, the stuff that was being done by the government was just going hog wild. I mean, in one case in California, they actually shut down a gun show. They came in: nobody leaves, nobody enters; and they passed out things saying, essentially, you know, warning them all that what you’re doing, you may be an illegal dealer, etc. I mean, they literally came in and just shut down the gun show—a total Fourth Amendment violation. Nobody cared. They would go through cities, as they went through mine, Tucson, and bust four or five, six or ten dealers for supposed straw-man sales where they were suckering the dealer into it, or they’d bust ten or twenty gun collectors in a major city. I mean, they were going completely wild and FOPA put an end to that. Without FOPA—well without the Hughes Amendment, you would be able to get cheaper full autos. That’s true.
But on the other hand, everybody who collects or deals in ordinary firearms would probably have been facing felony charges. Congressman Volkmer, toward the end of his life, I heard him say—I think it was at the 20th anniversary of the passage—that firearm ownership as we know it in America would be completely different if that legislation had not gone through. And I think that was an accurate judgment. So, yes, I don’t like having to pay the price, but that was the price. We’d spent seven years getting it that far. And if we were going to preserve firearm ownership in the way we’ve always known it, we had to have this bill. So yes, it was worth it.
[32:02] JOSEPH GREENLEE: So you’ve been researching and writing about firearms for over half a century, and have published many of the most important articles and books ever produced on the topic. Where can listeners find your work?
[32:16] DAVID HARDY: Actually, I’ve got my blog, on which I haven’t made a posting in quite some time, but in the margin, it’s got links to a lot of my works. It’s ArmsAndTheLaw.com. Then I also have a web page specifically for publications, but I’ve never really upgraded it fully. And that’s HardyBooks.net—not dot-com, dot-net: HardyBooks. And you’ll find a lot of links on there. Someday I’m going to upgrade my web page so that it actually sets out all the publications, but that’ll have to be sometime when I have some spare time which is not likely to occur.
[33:03] JOSEPH GREENLEE: Well, thank you so much for joining us today. We’re very grateful for your time and insight.
[33:09] DAVID HARDY: Yes. Thank you. Oh, I should add, I also produced a documentary, In Search of the Second Amendment, a two-hour documentary. Now, it doesn’t have the latest Supreme Court cases because it was made before the Supreme Court decisions came down. But you can find that on the web easily enough. Just look at YouTube. People have pirated the whole thing and put it on YouTube and have never protested since. My object was to get the word out. So, yes, this gets the word out. Yeah, yeah. Access it for free.
[33:46] JOSEPH GREENLEE: Oh, wonderful. Well, that is something. When people are done watching this, they can go on over and watch the documentary.
[33:53] DAVID HARDY: Yeah.
[33:55] JOSEPH GREENLEE: All right. Well, thanks. Thanks again. We really appreciate it.