Cite as U.S. v. One Minneapolis Palm Protector Pistol, etc., Case No. 18450-PH (S.D.Cal., March 31, 1956), reprinted in Federal Firearms Act: Hearings before the Subcommittee to Investigate Juvenile Delinquency, Senate Judiciary Committee, 89th Cong., 1st Sess., at 835-37 (1965). [I have included the introductory material preceding the case, and the letters from Treasury to the NRA following the case, from the Hearing record, as they are also interesting.] STATEMENT OF GEORGE R. WHITTINGTON, AMARILLO, TEX. I am in the investment business and a member of the bar of the Supreme Court of the United States and the State of Texas. I am a past president of the Texas State Rifle Association and of the National Rifle Association of America, and also a civilian member of the National Board for the Promotion of Rifle Practice. I am a qualified competitor with .22 and .30 caliber and the handgun, and an the holder of national records. I am also a gun collector. I feel I am qualified to speak about and against Senate bill 1592. In past years in hearings before the Congress and government agencies, which I have been privileged to attend, I have heard a person of high place in our society today, a former Congressman and Senator, declare, "You do not examine legislation in the light of the benefits it will convey if properly administered, but in the light of the wrongs it would do and the harms it would cause if improperly administered." Senate bill 1592 reaches for a utopia which it cannot attain inasmuch as its success and enforceability are based, upon criminal cooperation, a cooperation it will not receive. It has many objectionable features that have been or will be covered by witnesses before this committee. One of the great objections I have is to section 1, subsection 14, which reads: "The term 'Secretary of the Treasury' means the Secretary of the Treasury or his delegate." This is an amendment to the Federal Firearms Act, and the agency of the Treasury Department which has been administering that act is the Alcohol and Tobacco Tax Division of the Internal Revenue Service, U.S. Treasury Department. Senate bill 1592 does not spell out in detail the procedures for its enforcement. It leaves it to the Secretary or his delegate. This is asking the Congress to abdicate or forfeit its right to legislate and place in the hands of an administrative body the power that constitutionally belongs only to the Congress. You gentlemen know better than I the procedures that such agencies follow in making rulings that have the same force and effect of a law passed by the Congress, so I won't go into that. I will, however, call your attention to some of the past actions of the Alcohol and Tobacco Tax Division of the Treasury and the records thereof. First, let's look at the proposed regulations which this agency sought to get through, and would have gotten through had not the people of the various States acting through their respective representatives in Congress and for themselves so vigorously protested that the whole thing was so finally watered down, it was without meaning. The hearing I speak of was that held by the Alcohol and Tobacco Tax Division, Internal Revenue Service, in Washington on August 27 and 28, 1957. Many members of Congress spoke against the proposed regulations, none for them. From the State of Teas two Senators and at least five Members of the House opposed them. I believe it would be well for this committee to obtain the record of that hearing and to study it very closely, for the objections voiced then are still valid today. Some of those objections were given in person, some by administrative assistants, and some were filed with the clerk of the hearing. Another example of the thinking of shall we say "the delegate" is the case from California. Filed: April, 1956. UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA CENTRAL DIVISION No. 18450-PH UNITED STATES OF AMERICA, LIBELANT, v. ONE MINNEAPOLIS PALM PROTECTOR PISTOL, SERIAL No., 1100, ETC., RESPONDENTS Finding of fact, conclusions of law, and judgment The above case having come on regularly for trial on the 26th and 27th day of March, 1956, in the above entitled court, before the Honorable Peirson M. Hall, judge, presiding without a jury, the libelant being represented by its attorneys, Laughlin E. Waters, U.S. attorney, Max D. Deutz and Volney V. Brown, Jr., assistant U.S. attorneys, and the respondents being represented by its attorneys Meyer F. Litenberg and Carl C. Cowles; and evidence both oral and documentary having been introduced and received and the court having considered the same; and the court having heard the arguments of counsel, and having rendered decision in favor of the respondents in open court on March 27, 1956; and the court being fully advised in the premises, makes the following findings of fact, conclusions of law and judgment: FINDINGS OF FACT. I. That Martin B. Retting is the owner and operator of the premises and business known as Martin Retting's Gun Shop at 5851 Washington Boulevard, Culver City, county of Los Angeles, State of California, in the Southern Judicial district of California and within the jurisdiction of the honorable court. II. That on or about the 3d day of January 1955, the Alcohol and Tobacco Tax Division of Internal Revenue Service seized from the premises of said Martin B. Retting the following described property: One Minneapolis palm protector pistol, serial No. 1100; One Chicago palm protector pistol, serial No. 500; One Chicago palm protector pistol, serial No. 956; That said seizure was allegedly made under the provisions of the National Firearms Act, being section 5848 of title 26, United States Code, subsections (1) and (5), and section 5682 of title 26, United States Code, and section 5812(3) of title 26, United States Code. III. That said Martin B. Retting as the owner of said guns denied that said guns were required to be registered and further denied that he was obliged to pay a tax upon said weapons and contended that said weapons were and now are pistols and/or revolvers as defined in the Code of Federal Regulations, title 26, section 179.35, as amended, and that said weapons should be returned to him and that said seizure was wrongful and had not become forfeited to the United States of America under the internal revenue laws of the United States or any other law or laws whatsoever. IV. That the evidence adduced by the respondent established that said weapons were and are pistols and/or revolvers and that said weapons did not have to be registered under the National Firearms Act or under any other regulation or law of the United States; that said weapons were an exception to taxation under the National Firearms Act and that the amendments to the Code of Federal Regulations effective November 1, 1955, do not alter the status of said weapons for they are pistols and/or revolvers under said amendments. V. That the United States of America, libelant, has failed to prove that said weapons, either at time of seizure or at any time of the trial, were other than pistols and/or revolvers, and further did not prove that said weapons, or any of them, are a "gadget device," a gun altered or converted to resemble pistols, or was a small portable gun erroneously referred to as pistols. VI. That at the time of the seizure of the weapons from Martin B. Retting, two were in operating condition and one was inoperative, but that at the time the government presented said pistols, at the trial, two were in inoperative condition and but one in operative condition. VII. That in order to stop the United States by and through the U.S. Treasury Department, Internal Revenue Service, from declaring said weapons forfeited to the Government, said Martin B. Retting caused to be filed with the regional commissioner of the U.S. Treasury Department, Internal Revenue Service at San Francisco, and later with the above entitled court, in affidavit form, a claim for return of seized personal property, accompanied by a bond for costs under section 7325 Internal Revenue Code, which bond was issued by the Fidelity & Deposit Co. of Maryland. CONCLUSIONS OF LAW I. This court has jurisdiction of the within action and subject matter. II. That the Minneapolis palm protector pistol and the Chicago palm protector pistol are pistols and/or revolvers as defined in the Code of Federal Regulations, title 26, section 179.35, and section 179.37, as well as is so commonly known and considered in the weapon trade and industry; that the said weapons, and each of them, are not required to be registered, nor are they taxable under the provisions of the National Firearms Act; that said weapons are not "gadget devices" but that on the contrary are recognized established pistols and/or revolvers. III. That Martin B. Retting of 5851 Washington Boulevard, Culver City, county of Los Angeles, State of California, is the owner and entitled to the immediate possession of said weapons, to wit: One Minneapolis palm protector pistol, serial No. 1100, one Chicago palm protector pistol, serial No. 500, one Chicago palm protector pistol, serial No. 956, and the said three described weapons be and they are hereby ordered returned to claimant, said Martin B. Retting. IV. That judgment should be entered in favor of the respondents, and against the libelant denying the relief as is prayed for in its complaint and granting the relief as is prayed for by respondent in his answer and that the bond heretofore filed by respondents and issued by the Fidelity & Deposit Co. of Maryland, as respondents surety be exonerated and discharged from any liability. V. Let judgment be entered accordingly. JUDGMENT In accordance with the foregoing findings of fact and conclusions of law, it is ordered, adjudged, and decreed: I. That judgment be entered in favor of the respondents and against the libelant, denying the relief prayed for in libelant's complaint. II. That libelant is ordered and directed to immediately return to Martin B. Retting the following weapons in its possession: One Minneapolis palm protector pistol, serial No. 1100, one Chicago palm protector pistol serial No. 500, one Chicago palm protector pistol serial No. 956. Dated: March 31, 1956. Pierson M. Hall, Judge, U.S. District Court. Approved as to form: Laughlin E. Waters, U.S. Attorney By Voleny V. Brown, Assistant U.S. Attorney Since the judgment, the chief enforcement officer of the ATTD states that it has been advised to ignore this judgment in all districts except the Southern District of California. It readily becomes apparent if this Division of the Treasury Department assumes this kind of an attitude toward a judgment of a Federal district court, then how can a mere individual hope to uphold his rights except at great loss in time and money? There are many other examples of this kind. At the beginning of my statement, I gave the quotation, "You do not examine legislation in the light of the benefits it will convey if properly administered, but in the light of the wrongs it would do, and the harms it would cause if improperly administered." Gentlemen, the foregoing statement and quotation were made by the now President of the United States, Lyndon B. Johnson. I thank you. U.S. TREASURY DEPARTMENT, Washington, D.C., June 4, 1956. NATIONAL RIFLE ASSOCIATION OF AMERICA, Washington, D.C. Gentlemen: On page 52 of the May 1956 issue of the American Rifleman, you announce that as the result of a decision rendered on March 27, 1956, by the U.S. District Court for the Southern Judicial District of California, a device identified as the "Chicago palm pistol", is not subject to registration and taxation under the National Firearms Act. The court decision to which you refer affects the classification status of the device mentioned only within the jurisdiction of said court, specifically the Southern Judicial District of California. Revenue Ruling 55-44 published on January 24, 1955, in Internal Revenue Bulletin No. 4 (Rev. Rul. 55-44, C.B. 1955-1,129.), takes precedence elsewhere. To avoid any misunderstanding which may result from your published article it is suggested that you consider the propriety of clarifying this important point as a public service. Your cooperation in this matter will be appreciated. Very truly yours, Dwight E. Avis, Director, Alcohol and Tobacco Tax Division.