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Rep. Harold Volkmer, R.I.P.

Posted by on Apr 18 2011 | guns, Harold Volkmer, History, Uncategorized

(David Kopel)

There have been thousands of men and women who have been elected to the United States Congress, but only a few of them can be remembered for leading the enactment of major reforms to safeguard constitutional rights. Among these giants are Rep. John Bingham and Sen. Jacob Howard, the lead sponsors of the 14th Amendment (making the Bill of Rights applicable to the states) in the House and Senate. The sponsors of the Civil Rights Act of 1964 (using federal powers to stop state and local violations of the Equal Protection clause) are in the same category. So was Missouri Democrat Harold Volkmer, who passed away on April 16, one of the greatest of America’s Second Amendment heroes.

Born in 1931, Volkmer got his start in politics helping his mother campaign in Jefferson City, Missouri, for the re-election of President Franklin Roosevelt. Having passed the bar exam even before he graduated from the University of Missouri Law School, Volkmer quickly entered public service, first as an Assistant Attorney General for the State, and then in the United States Army. He was elected Prosecuting Attorney for Marion County in 1960, and then State Representative in 1966. During his ten years in the Missouri legislature, he earned the same reputation that he would have have in Congress. An “energetic blunt-talking lawyer” and “a maverick,” in the words of the St. Louis Post-Dispatch. Volkmer led the way on a major reorganization of the executive branch of state government. As the Republican minority leader later recalled, “Volkmer was the brains for all of us. He understood the issue of reorganization better than anybody in the Legislature. We all looked to him for leadership, including me. I don’t like to say that, darn it, because he’s a Democrat. But it’s true.”

Volkmer also sponsored Missouri’s open meetings law, protection for the secret ballot, the modern version of the Missouri tax code, and the then-new food stamp program.

He won the first of his ten terms as a United States Representative in 1976. During 20 years in Congress, Volkmer accomplished much, but his greatest work was the McClure-Volkmer bill, formally known as the Firearms Owner’s Protection Act (FOPA).

The federal Gun Control Act of 1968 set up a comprehensive system of national gun laws; to implement the law, the Bureau of Alcohol, Tobacco and Firearms was created in the Treasury Department. (Previously, the Bureau had been a Treasury “Division.”) Republican Richard Nixon became President in 1969, and the BATF’s enforcement of the Gun Control Act was consistent with Nixon’s loathing of guns. As Nixon later told William Safire (a New York Times columnist who had once been a Nixon speechwriter), “Guns are an abomination,” and handguns should be outlawed. Under Nixon, BATF routinely and persisently engaged in extreme abuses–including entrapment (such as telling a particular gun dealer that something was legal, and then arresting him for doing it); confiscation, forfeiture, and destruction of firearms belonging to law-abiding gun owners and dealers; and a prosecution strategy aimed at technical violations rather than at genuine criminals.

The problems were exacerbated by a top-level culture of mismanagement and employee abuse at BATF, as documented by the National Association of Treasury Agents, an employee-rights organization for law enforcement officers within the Treasury Department. (Today, the organization is named the National Association of Federal Agents, since much of Treasury law enforcement was moved to the Department of Justice in 2003.) BATF management tended to reward the agents who were most aggressive against easy targets (entrapment victims, and so on), and to punish agents who tried to focus on interstate criminal gun smuggling and other activities of gun criminals.

Reform was plainly needed, and so the Firearms Owner’s Protection Act was introduced in Congress. In the House, Democrat Volkmer was the lead sponsor, while the Senate sponsor was Republican James McClure of Idaho. (McClure passed away this February.)

Initially, FOPA was bottled up. House Judiciary Chairman Peter Rodino, a zealous anti-gun advocate, refused to allow any hearings. Even after Republicans took the U.S. Senate in the 1980 elections, Majority Leader Howard Baker did not bring FOPA to the floor. But at least the FOPA sponsors could get committee hearings. One of the most important of these was before the Senate Judiciary Committee’s Subcommittee on the Constitution. The 7-member subcommittee unanimously concluded that BATF was habitually engaging 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.”

The 75% figure came from Vernon Acree, a former United States Commissioner of Customs, who had been hired by the NRA to conduct a study of BATF prosecutions in Virginia and Maryland. As for BATF’s denials, the Subcommitte found:

The rebuttal presented to the Subcommittee by the Bureau was utterly unconvincing. Richard Davis, speaking on behalf of the Treasury Department, asserted vaguely that the Bureau’s priorities were aimed at prosecuting willful violators, particularly felons illegally in possession, and at confiscating only guns actually likely to be used in crime. He also asserted that the Bureau has recently made great strides toward achieving these priorities. No documentation was offered for either of these assertions. In hearings before BATF’s Appropriations Subcommittee, however, expert evidence was submitted establishing that approximately 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. (In one case, in fact, the individual was being prosecuted for an act which the Bureau’s acting director had stated was perfectly lawful.) In those hearings, moreover, BATF conceded that in fact (1) only 9.8 percent of their firearm arrests were brought on felons in illicit possession charges; (2) the average value of guns seized was $116, whereas BATF had claimed that “crime guns” were priced at less than half that figure; (3) in the months following the announcement of their new “priorities”, the percentage of gun prosecutions aimed at felons had in fact fallen by a third, and the value of confiscated guns had risen. All this indicates that the Bureau’s vague claims, both of focus upon gun-using criminals and of recent reforms, are empty words.

Senate Committee on the Judiciary, Subcommittee on the Constitution, The Riqht to Keep and Bear Arms, 97th Congress, 2d sess., Senate Doc. 2807 (February 1982).

Finally, in 1985 a Senate vote was allowed on FOPA, and it passed 79–15. Democrats voted 30–13 in favor, with “ayes” coming from Senators such as Joe Biden, George Mitchell, John Glenn, and Al Gore.

But things looked much worse in the House. Judiciary Chairman Peter Rodino declared FOPA “dead on arrival” in House. The crime subcommittee, which had jurisdiction over FOPA, was headed by William Hughes (D-N.J.), a staunch and effective anti-gun advocate. Both the Crime Subcommittee and the Judiciary Ccommittee  had long been carefully screened to keep off almost all Democrats who supported the Second Amendment. And even if FOPA somehow made it out of Judiciary, there would only be a vote on the floor of the House if the Rules Committee allowed one, and the Rules Committee would never defy House Speaker Tip O’Neill (D-Mass.), who had a perfect anti-gun voting record.

What came next would be Harold Volkmer’s finest hour. The one way that Volkmer could free the McClure-Volkmer bill from the committees was to convince at least half the members of the House of Representatives (218 of 435 members) to sign a discharge petition. Attempts to win a discharge petition almost never succeed. At the time, a Representative’s signature would be kept secret until there were 218 signers, but once the signers were revealed, the House leadership would know who had defied their wishes. Volkmer had to convince dozens and dozens of his fellow Democrats to stick their necks out on behalf of Second Amendment rights. Volkmer also had to win over Republicans to support his bill, a skill which he had already mastered in Missouri, and which he used well in Washington.

Volkmer succeeded. By early 1986, it was clear the Volkmer was getting close to victory. Key to his success were not only his political talents, but also his deep and thorough understanding of the bill. He didn’t have to pass the bill to find out what in it; he knew the bill inside-out, and what each sentence of the bill meant for fixing particular, documented problems in gun law enforcement. As a result, he could readily rebut BATF and gun prohibition lobbyists who tried to convince wavering Representatives that FOPA was unncessary or dangerous.

Unable to stop Volkmer, Judiciary Chairman Rodino tried to head off the discharge petition by voting out an alternative bill by Rep. Hughes, which made from tepid reforms, and which also substantially expanded federal gun control. Speaker O’Neill promptly brought the Rodino-Hughes bill to the House floor for a vote. The debates took place on April 9–10, 1986. Volkmer led the charge against Rodino-Hughes. He won a motion to strike the entire bill below the enacting clause, and to substitute the language of FOPA.

While the vote on motion to strike was fairly close, the final passage of FOPA turned into a rout. FOPA passed the House 292–130; House Democrats voted 131 in favor and 115 opposed. On May 19, 1986, President Reagan’s signature made McClure-Volkmer the law of the land.

FOPA begins by declaring “The Congress finds that — (1) the rights of citizens (A) to keep and bear arms under the second amendment to the United States Constitution; (B) to security against illegal and unreasonable searches and seizures under the fourth amendment; (C) against uncompensated taking of property, double jeopardy, and assurance of due process of law under the fifth amendment; and (D) against unconstitutional exercise of authority under the ninth and tenth amendments; require additional legislation to correct existing firearms statutes and enforcement policies.” Pub.L. 99–308, sec. 1(b). 

Line by line, FOPA significantly strengthened statutory protections of the Second, Fourth, Fifth, Ninth, and Tenth Amendments. FOPA remains one of the most far-reaching laws ever enacted by Congress to safeguard constitutional rights.

Arizona attorney David Hardy worked closely with Rep. Volkmer, Sen. McClure, and the National Rifle Association in the drafting and passage of FOPA. Last week Hardy unveiled a new website which provides the full legislative history of FOPA. As reflected by citations in the U.S. Supreme Court and the federal circuits, Hardy is clearly the nation’s leading scholar of FOPA.

For the next 10 years, Harold Volkmer continued to play a leading role in Congress defending Second Amendment rights, and in fighting against the increasingly powerful alliance of gun prohibition groups with the Clinton White House.

Harold Volkmer’s devotion to the Bill of Rights was not a political expedient; it was the cause to which he dedicated his life. After he left Congress, the members of the National Rifle Association overwhelmingly elected him to their Board of Directors, on which he served for the next 12 years. There, he provided the NRA with sound and canny advice on legislative matters. 

While still a member of Congress, Volkmer became a member of the Board of Trustees of the NRA Civil Rights Defense Fund, and was for many years the chair of the organization. Even after his chairmanship, he continued to serve as a Trustee, and while on his deathbed last week, he was busy studying and making recommendations on case proposals that had been submitted to the Fund for consideration.

Missouri Democratic Senator Thomas Eagleton nicknamed Harold Volkmer “The Roadrunner” for how much Volkmer got done every day.  Very true, but even this understates what Volkmer accomplished. Over a lifetime devoted to good government and civil rights, Harold Volkmer fought the good fight, finished the race, and kept the faith.

One day perhaps, there will be a stone monument honoring Harold Volkmer. But the true monument to Harold Volkmer has already been standing for a quarter-century, and it is found all over the United States–in the homes of law-abiding firearms owners and in firearms stores where the Second Amendment and the rest of the Bill of Rights are freely exercised, uninfringed by the abuses and usurpations which Harold Volkmer put to an end. Harold Volkmer truly was a Hero of the Constitution.


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