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The great American gun debate has increasingly turned to history-specifically the dark years of the Third Reich-for analogies both supporting and opposing gun registration and control. The example of the 1938 Nazi gun laws is repeatedly invoked by advocates and commentators to caution about the ultimate price of gun regulation. The problem with these analogies is that they are often historically inaccurate to begin with, and their application to modern American society is misguided. The historical argument has gained momentum. For example, a recent letter to the editor of the NLJ from Stephen Halbrook, a pro-gun lawyer, used the Third Reich analogy to argue against gun registration. David Kopel, research director of the Independence Institute, wrote in the National Review Online, “Simply put, if not for gun control, Hitler would not have been able to murder 21 million people.” In fact, the Nazi-gun-registration argument has so far penetrated the American imagination that today approximately 57% of Americans believe that handgun registration will lead to confiscation. Of course, Hitler’s legal policies are fair game for all sorts of factions, well-intentioned and otherwise. The National Alliance, a white supremacist organization, points out (at least in part correctly) that Hitler actually liberalized gun-ownership laws. To the National Alliance, which would like to see guns in the hands of certain white Americans, this was a step in the right direction. So which pro-gunners should we believe-those who seek to preserve gun rights for all, or those who would like to preserve them only for their Aryan brothers? Let’s start with the facts. The passage of gun-registration laws in Germany during the first part of the 20th century is somewhat complicated. Following Germany’s defeat in World War I, the Weimar Republic passed very strict gun-control laws in an attempt both to stabilize the country and to comply with the Versailles Treaty of 1919, which imposed severe gun restrictions on German citizens. But even before the treaty was signed, the Reichstag enacted legislation prohibiting gun possession-in fact, requiring the surrender of all guns to the government. The earlier Reichstag law remained in effect until April 12, 1928, when the German parliament enacted the Law on Firearms and Ammunition, which relaxed gun restrictions and put into effect a strict firearm-licensing scheme. Some argue that the laws were enacted to prevent the sort of armed insurrection through which Hitler eventually came to power. Changes in 1938 It helps to read the 1938 Nazi gun laws closely and compare them to the earlier 1928 Weimar gun legislation, as a straightforward exercise of statutory interpretation. The 1938 Nazi gun laws actually liberalized the Weimar Republic’s gun-control measures regarding possession and carrying by making these restrictions applicable only to handguns, lowering the juvenile age from 20 to 18 and extending carrying permits from the previous one-year limit to three years. The 1938 Nazi gun laws also specifically banned Jewish persons from obtaining a license to manufacture firearms or ammunition. And about eight months later, Hitler imposed regulations prohibiting Jews from possessing any dangerous weapons, including firearms. The Nazi regime implemented this prohibition by confiscating weapons from Jews and subsequently engaged in genocide of the Jewish population. How should one characterize the Nazi treatment of the Jewish population for purposes of evaluating Hitler’s position on gun control? In one sense, the Nazi treatment of Jews was so extreme that it goes far beyond the gun-control debates. In another sense, there was a frightening consistency: The Nazis relaxed gun registration laws for the “law-abiding German citizen.” That is, those who were not “enemies of the National Socialist state” (read: Jews, Communists and others the Nazis were intent on eliminating). Here, then, is the best tentative and, yes, bizarre conclusion: Some factions of the pro-gun lobby are probably right when they say that the historical arguments of the pro-gun lobbyists are wrong or at the very least oversimplified. What is clear, though, is that the history of Weimar and Nazi gun laws has not received enough critical attention by historians. What we really need now is more historical research and scholarship, before we can point to gun polices of the Third Reich as supporting-or not supporting-current gun-control proposals. The larger question is whether Nazi laws, which were in effect nondemocratic decrees pronounced by Hitler and his select ministers, have any bearing on American democracy and law. To discuss the gun laws of the Third Reich in a historical vacuum makes no sense and can be misleading. There are other, more relevant historical comparisons for us, such as the gun-transfer registration schemes in Hawaii and the District of Columbia, or in the 21 states that have record-of-sales registration laws. Bernard E. Harcourt is a professor at the University of Chicago Law School. His forthcoming article on this topic is online at http://ssrn.com/abstract=557183.

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