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[Cite as U.S. v. Tot, 131 F.2d 261 (3rd Cir.
1942), rev'd (as to the presumption issue), 319 U.S. 463 (1943). NOTE:
The Second Amendment is discussed Pp. 266-267.]
UNITED STATES v. TOT.
Circuit Court of Appeals, Third Circuit.
Argued July 7, 1942.
Decided Oct. 28, 1942.(p.262)(p.263)
Appeal from the District Court of the United States
for the District of New Jersey; Thomas Glynn Walker, Judge.
Frank Tot was convicted of receiving a firearm
transported in interstate commerce after conviction of a crime of violence,
42 F.Supp. 252, and he appeals.
George R. Sommer, of Newark, N.J., for
Irwin L. Langbein, of Washington, D.C. (Charles M.
Phillips, U.S. Atty., of Trenton, N. J., on the brief), for appellee.
Before MARIS and GOODRICH, Circuit Judges, and
BARD, District Judge.
GOODRICH, Circuit Judge.
The defendant, Frank Tot, was convicted and sentenced for violation
of the statute known as the Federal Firearms Act, 15 U.S.C.A. §
901 et seq., by which it is made unlawful for any person who has been
convicted of a crime of violence "to receive any firearm or ammunition which has
been shipped or transported in interstate or foreign commerce ***." That
defendant had been previously convicted of a crime of violence, as defined in
the Act, is undisputed. He was arrested by federal officers at his home in
Newark, N. J., on a warrant charging theft of cigarettes from an interstate
shipment. A .32 caliber Colt Automatic pistol, was found in his place of
residence at the time of the arrest, which took place on September 22, 1938. In
this appeal the appellant raises several questions of difficulty and importance
concerning the statute cited. Additional facts necessary for presentation of the
legal questions involved will be made in connection with the question to which
they are relevant.
Search and Seizure.
At various stages of the proceedings after his
arrest, appellant made timely motions for the suppression and return of the gun
and that any evidence pertaining to it, which had been admitted over his
objection, be stricken. All of these motions were denied. Their basis was the
appellant's contention that the gun had been obtained in violation of his
constitutional guarantee, under the Fourth Amendment, against unreasonable
searches and seizures.
Since what the Constitution prohibits is unreasonable search and
seizure it is inevitable that the courts are confronted with marginal cases and
that sometimes the line between what is held reasonable in one case and
unreasonable in another becomes faint. Some searches and seizures incident to a
lawful arrest are permitted; others are not. The facts
presented here, however, do not show a case close to the line where our result
would be indicated (p.264)only by a careful
analysis and differentiation among authorities by which we are bound. We are not
here confronted with the problem of the propriety of the seizure if the officers
had found a quantity of cigarettes about the accused's premises and seized them
as evidence of his complicity in the crime with which he was charged in the
warrant of arrest. Still less are we concerned with the legality of a seizure of
some article of contraband like a package of opium or a container of untaxed
alcohol. The only article seized here was the gun. Undoubtedly upon Tot's arrest
under a valid warrant, as this was, his person could have been searched and the
weapon taken from him. The same privilege to search the place where the arrest is
made "in order to find and seize things connected with the crime as its fruits
***, as well as weapons and other things to effect an escape from custody, is
not to be doubted."
The serving of the warrant and the taking of the gun by the officers
were practically a contemporaneous transaction. The evidence shows that Tot was
asked if he had a gun and that he replied in the affirmative. He stated that it
was in the pocket of his coat which was hanging in a wardrobe closet in his
bedroom. Whether this conversation took place in the kitchen, where the
arresting officers entered or the adjoining bedroom, is disputed. We think it
does not matter. There was also testimony that Tot offered to get the gun
himself and that this unusual offer was declined by the officers, one of whom
went to the closet, found the coat, removed the gun and took possession thereof.
It might well be said that defendant's offer to produce the gun constituted a
consent on his part to its taking by the officers. Regardless of this, however,
we think it apparent that the seizure in this case is clearly within the rule
stated by the Supreme Court as one not to be doubted under which weapons and
other things which may be used to effect an escape from custody may be seized
without a search warrant upon a lawful arrest.
A general search of the premises was made, however, and the only
warrant the officers had was the one for the arrest of the accused. If we
assume, solely for the purpose of discussion, however, that the search was wider
than constitutional limitations permitted, does this invalidate the arrest and
the seizure of the weapon which was otherwise lawful as an incident to the
arrest? The analogy at once suggested is the ancient doctrine of trespass ab
initio by which subsequent misconduct of a party entering under license given by
law may render the original entry tortious. Even so, however, this doctrine does
not invalidate the doing of an act for the accomplishment of which the privilege
Nor is it applicable to criminal prosecutions brought by the United States. Our
conclusion is that under the facts of this case the defendant may not complain
of violation of constitutional rights in the search and seizure of the gun, and
the overruling of his various motions and objections based on this theory were
Meaning of the Statute.
Appellant's second contention is that the correct
construction of the statute does not include the gun which was in his possession
at the time of his arrest. In defining the term "firearm" the Congressional
language states that it "means any weapon, *** which is designed to expel a
projectile *** by the action of an explosive and a firearm muffler or firearm
silencer, or any part or parts of such weapon."
The pistol here in question was not equipped with a silencer nor is
there, according to the testimony of the government's expert, a commercially
made silencer for this .32 caliber weapon. It is (p.265)conceded, however, that a silencer could be made for it
and there is evidence of a demonstration of the successful fitting and operation
of a made-over .25 silencer on a gun of the same make, model and caliber. The
appellant's argument is that the plain words of the statute, in which the
conjunctive "and" is used instead of the disjunctive "or" or a combination of
the two, limits the application of the statute to guns which are provided with a
silencer, or where one may readily be applied. This being the plain meaning, he
says, and the statute a penal one, resort should not be had to extrinsic sources
like Treasury Regulations or legislative debates and hearings to give it some
If the premise of plain meaning were acceptable, there is something
to be said for the suggested conclusion. We do not agree with the appellant's
argument about the plain meaning. The statute as a whole indicates an ambitious
plan for dealing with firearms in interstate commerce. The very sentence upon
which appellant relies shows, in the last phrase, the intent of Congress to deal
with the parts as well as the whole. The appellant's interpretation of the
language requires the word "and" to be read as "combined with". This, it seems
to us, is quite a jump from plain meaning. It is a much narrower construction
than we believe Congress meant in view of the statute as a whole and the
concluding clause of the sentence referred to.
That Congress had no such narrow limitation in mind is clear from the
discussion of the statute prior to its passage. Both the proponents and
opponents of the Act thought of its provisions in the broadest terms, applicable
to a "gun of any type", "firearms of all kinds", etc. This
reference is not made to put in the statute something which is not there. But,
it is a matter for consideration in determining what the scope was of the
problem the legislature had in mind.
There is an additional point of administrative regulation also. Section 903 of the Act relates to licensing of manufacturers of
and dealers in firearms and this is committed to the Treasury. Regulations were
issued under which the clauses were rearranged and numbered to make explicit the
disjunctive relation of the gun and the silencer. The
Congress subsequently amended the definition of ammunition in the very same
statute. The opportunity was then present to modify the firearms
definition if the Congress had considered that the administrative officers had
carried it beyond it original meaning. We think this is a case where what the
Treasury had evidenced as being its understanding of the meaning of the statute,
"Congress impliedly confirmed as being correctly interpretative of the
legislative intent." Our conclusion upon this point is that the pistol here in
question was within the definition of firearms given in the statute.(p.266)
The Second Amendment.
The Second Amendment to the
Constitution of the United States provides: "A well regulated Militia,
being necessary to the security of a free State, the right of the people to keep
and bear Arms, shall not be infringed."
The appellant's contention is that if the statute under which this
prosecution was brought is to be applied to a weapon of the type he had in his
possession, then the statute violates the Second Amendment.
It is abundantly clear both from the discussions of this amendment
contemporaneous with its proposal and adoption and those of learned writers
that this amendment, unlike those providing for protection of free speech and
freedom of religion, was not adopted with individual rights in mind, but as a
protection for the States in the maintenance of their militia organizations
against possible encroachments by the federal power. The
experiences in England under James II of an armed royal force quartered upon a
defenseless citizenry was fresh in the minds of the Colonists. They wanted no
repetition of that experience in their newly formed government. The almost
uniform course of decision in this country, where
provisions similar in language are found in many of the State Constitutions,
bears out this concept of the constitutional guarantee. A notable instance is
the refusal to extend its application to weapons thought incapable of military
The contention of the appellant in this case could, we think, be
denied without more under the authority of United States v.
Miller, 1939, 307 U.S. 174, 59 S. Ct. 816, 83
L.Ed. 1206. This was a prosecution under the National
Firearms Act of 1934 and the weapon, the possession of which had
occasioned the prosecution of the accused, was a shotgun of less than 18 inch
barrel. The Court said that in the absence of evidence tending to show that
possession of such a gun at the time has some reasonable relationship to the
preservation or efficiency of a well regulated militia, it could not be said
that the Second Amendment guarantees the right to keep such an instrument. The
appellant here having failed to show such a relationship, the same thing may be
said as applied to the pistol found in his possession. It is not material on
this point that the 1934 statute was bottomed on the taxing power while the
statute in question here was based on a regulation of interstate commerce.
But, further, the same result is definitely indicated on a broader
ground and on this we should prefer to rest the matter. Weapon bearing was never
treated as anything like an absolute right by the common law. It was regulated
by statute as to time and place as far back as the Statute of
Northampton in 1328 and on many occasions since. The
decisions under the State Constitutions show the upholding of regulations
prohibiting the carrying of concealed weapons, prohibiting persons from going
armed in certain public places and other restrictions, in the nature of police
regulations, but which do not go so far as substantially to interfere with the
public interest protected by the constitutional mandates. The
Federal statute here involved is one of that general type. One could hardly
argue seriously that a limitation upon the privilege of possessing weapons was
unconstitutional when applied to a mental patient of the maniac type. The same
would be true if the possessor were a child of immature years. In the situation
at bar Congress has prohibited the receipt of weapons from interstate
transactions by persons who have previously, by due process of law, been shown
to be aggressors against society. Such a
classification is entirely reasonable and does not (p.267)infringe upon the preservation of the well regulated
militia protected by the Second Amendment.
Refusal of Directed Verdict and Request for Charge.
The questions raised by the appellant under this
heading may be considered together. The alleged error in refusal to dismiss the
indictment or to direct a verdict relates, so far as this point goes, to the
matter of the government's proof and the charge which was requested and refused
concerns the same matter. The statute which makes it unlawful for any person who
has been convicted of a crime of violence to receive a firearm which has been
shipped in interstate commerce provides that "the possession of a firearm *** by
any such person shall be presumptive evidence that such firearm *** was shipped
or transported or received *** by such person in violation of this chapter."
§ 902(f). The prosecution showed possession of the weapon
already described by the defendant at a date when the statute was in effect.
Proof of prior conviction of a crime of violence was also shown. The prosecution
then rested. The defendant introduced testimony by himself, his wife and his
sister tending to show continuous possession of the gun from a date several
years prior to the passage of the statute. Rebuttal testimony for the
prosecution was confined to one witness, employed by the manufacturers of the
gun, who showed its shipment in 1919 from the factory in Connecticut to a
business firm in Illinois. The defendant by a timely motion asked for a directed
verdict and a dismissal of the indictment on the theory that having offered
evidence to show his possession prior to the effective date of the statute the
presumption created by the statute disappeared and in the absence of additional
evidence against that offered by him, he was entitled to have his motions
granted. He backs that up with words from Wigmore to the effect that a
presumption is merely to invoke a rule of law compelling the jury to reach a
conclusion in the absence of evidence to the contrary, and if such evidence is
offered, the presumption disappears as a rule of law, and the case is in the
jury's hands free from any rule. In
addition the appellant cites one State decision which seems squarely to apply
the rule as he would have it.
We think the answer to the appellant's point here is completely
stated in the words of Professor Bohlen in "The Effect of Rebuttable
Presumptions of Law Upon the Burden of Proof":  "It is
the duty of him against whom any presumption operates to produce evidence, not
merely witnesses, and therefore he must satisfy the jury of the credibility of
his witnesses." Simply causing words to be uttered is not enough. The two women
witnesses offered by the defendant distinctly faltered in the certainty of their
identification of the weapon made so readily upon direct examination.
Defendant stuck to his story, but it had some elements (p.268)which certainly made a basis for doubting its
truthfulness even without reference to his previous criminal record. We think
the most the defendant was entitled to have was a fair submission of the
question to the jury. And this, as will be pointed out presently, was given. The
constitutionality of presumptions more difficult to rebut than the one here
involved has been sustained by the Supreme Court.
Defendant asked an instruction, which was refused, "That such
presumption is never evidence and if you find that this presumption has been
repelled by the evidence you must acquit." The presumption referred to is that
in the statute already quoted.
To give the instruction in the language asked for by the defendant
would have been confusing to the jury. Statutory language is to the effect that
possession of the weapon is presumptive evidence of violation. For the court,
after having quoted the statute, to tell the jury that such presumption is not
evidence would certainly have not tended to clarity in their minds. But the
learned judge did much more than refuse an instruction which would have caused
confusion. His charge on the point was clear and helpful. He told the jury at
least twice that the burden was on the United States to establish defendant's
guilt beyond a reasonable doubt and told them, too, that the burden did not
shift. He left it to the jury to find whether the defendant obtained the gun
subsequent to June 30, 1938 and emphasized to them that they were the sole
judges of the facts concerning this statement especially as to the testimony
offered by the defendant. Then he repeated the ultimate issue in the final
paragraph of his charge. We think this left the matter clearly to the jury in a
way in which they could understand and gave the defendant the full benefit of
the testimony of his witnesses if that testimony was to be believed. More than
this he cannot ask.
Constitutionality of the Statutory Presumption.
By far the most difficult problem in this case is
the constitutionality of a presumption created in § 902(f).
After declaring it unlawful for any person convicted of a crime of violence to
receive any firearm in interstate or foreign commerce, the provision is that the
possession of a firearm by such person shall be presumptive evidence that such
firearm was received by such person in violation of the chapter. The
appellant did not press this point in his main brief or oral argument, though he
discusses that portion of the government's argument in his reply brief.
Nevertheless, because this is the first time the statute has been before an
appellate court for consideration we think that fairness to the accused requires
consideration of this problem as well as the other points already discussed.
The obvious offhand response to such presumption in a criminal
statute is that it violates the fundamental concept that a man is innocent until
proved guilty by putting on him the burden of producing the facts which
establish his innocence. (p.269)Such a sweeping
objection comes many years too late. Mr.
Justice Lurton, speaking for the Supreme Court in Mobile, J. &
K. C. R. R. v. Turnipseed, 1910, 219 U.S. 35, 43, 31 S.Ct. 136, 138, 55 L.Ed.
78, 32 L.R.A.,N.S., 226, Ann.Cas.1912A, 463, stated a test that has many
times been repeated, "That a legislative presumption of one fact from evidence
of another may not constitute a denial of due process *** [if there is] some
rational connection between the fact proved and the ultimate fact presumed, and
that the inference of one fact from proof of another shall not be so
unreasonable as to be a purely arbitrary mandate." This test was approved and
applied fifteen years later to uphold a criminal prosecution under a statutory
presumption in the Harrison Narcotics Act, 38 Stat. 785;
Yee Hem v. United States, 1925, 268 U.S. 178, 45 S.Ct. 470, 69
L.Ed. 904. More recently, the late Mr. Justice Cardozo, speaking for the
Court in Morrison v. California, 1934, 291 U.S. 82, 88, 54 S.Ct.
281, 284, 78 L.Ed. 664, states the testament somewhat more broadly. "The
decisions are manifold that within limits of reason and fairness the burden of
proof may be lifted from the state in criminal prosecutions and cast on a
defendant. The limits are in substance these, that the state shall have proved
enough to make it just for the defendant to be required to repel what has been
proved with excuse or explanation, or at least that upon a balancing of
convenience or of the opportunities for knowledge the shifting of the burden
will be found to be an aid to the accuser without subjecting the accused to
hardship or oppression."
The problem, therefore, becomes much narrower than at first appears,
in view of the test of the constitutionality above set out. So far as the
application to the facts of this case are concerned, we think the considerations
show that the presumption is constitutional as applied to an interstate commerce
shipment whether the more limited formula of the Turnipseed case or the broader
generalization found in the Morrison case is followed. The gun in question
certainly had two interstate journeys because it was proved that it was
originally shipped from Connecticut to Illinois and it was found in the
defendant's possession in New Jersey. Acquisition in New Jersey under the New
Jersey law, would not have been easy. New Jersey, in common with many other
States, has rather stringent regulations surrounding the transfer of
firearms of this type. The tendency is to require such transfers to be open, to
make them more difficult and certainly to put obstacles in the way of
acquisition by persons of criminal records like that of the defendant.
Furthermore, Congress had, when the Federal Firearms Act was under
consideration, evidence dealing with the interstate activity of armed law
breakers. In determining the constitutionality of the legislative
solution of a problem courts are not to ignore the existence of such facts
before legislative bodies even though the evidence of those facts is not part of
the record in a particular case. United States v. Carolene
Products Co., 1938, 304 U.S. 144, 58 S.Ct. 778, 82 L.Ed. 1234. We think
these considerations are sufficient to protect the statute created presumption
from the charge of arbitrariness.
The scholarly counsel for the government presented another basis on
which the presumption might be upheld. It is based upon the decision in Ferry v. Ramsey, 1928, 277 U.S. 88, 48 S.Ct. 443, 72 L.Ed. 796.
There the Supreme Court upheld the constitutionality of a statute imposing civil
liability upon a bank director for assenting to the receipt of deposits after
knowledge of insolvency of the bank adding a presumption of knowledge of
insolvency and assent to receipt where deposits were so received. Through Mr.
justice Holmes the majority of the Court recognized that the legislature had
power to impose the liability regardless of knowledge. That being (p.270)so, to do something less, in terms of a
statutory presumption, is not unconstitutional. On that foundation the argument
is made that Congress, under the commerce clause, could have made it a
substantive crime for persons with records like that of the defendant to possess
guns upon the theory that criminals with guns are the kind most likely to engage
in interstate journeys. The argument then concludes that if possession itself could
have been penalized under the interstate commerce power, a statutory presumption
of interstate shipment, however inept a way of reaching the same result, is not
unconstitutional. This may be sound. We do not deem it necessary to go so far in
this case. As stated above, we believe the presumption of interstate shipment
can be sustained under orthodox formulae many times enunciated.
We now come to the last question, that of the application of the
statutory presumption as to the time of the acquisition of the weapon found in
the possession of the defendant. The statute became effective July 30, 1938.
§ 906. The trial judge's instruction told the jury that the
presumption was that the gun was shipped in interstate commerce if the jury
found defendant obtained it subsequent to June 30, 1938. The
only direct evidence bearing on time of acquisition was that given by the
defendant and his wife and sister. This testimony the jury evidently disbelieved
as shown by its verdict of guilty. But without positive testimony by the
government showing the time of acquisition the verdict cannot stand unless the
statutory presumption applies both to the interstate commerce nature of the
transaction and to the time thereof. If it does the defendant has no ground for
complaint by reason of the jury's failure to follow the trial judge's
We have no doubt that the possession of the firearm by one of the
class of persons designated in the statute is intended to be treated as
presumptive evidence both of the fact of interstate shipment and the time of
receipt by such person. The words used quite evidently relate to the whole
statute. "*** possession *** shall be presumptive evidence that such firearm ***
was shipped or *** received, *** by such person in violation of this chapter."
§ 902(f). The chapter is the whole statute including § 906 which provides for its effective date and ending with § 909 giving its short title. White
v. United States, a case under the importation section of the Harrison
Narcotics Act, is an authority in point in the application of, the "presumptive"
evidence provision to the time element.
Can presumption of acquisition in violation of the law be
constitutionally applied? The government frankly admits that tested alone by the
rational connection between the fact proved and the fact presumed, presumption
is indefensible. The evidence showed that the gun was shipped by its
manufacturer in 1919 and that Tot was arrested and the weapon seized in
September, 1938. The likelihood that he acquired it in the short time between
the effective date of the statute and the date of his arrest is admittedly
But on the question of opportunities for knowledge mentioned in the
phrasing of the test by Mr. justice Cardozo, in the Morrison case, cited above,
there is much more to be said. A man in possession of the gun is certainly in a
position to know better than anybody else, when he got it. (p.271)The statute does not, as warned against in the Turnipseed case, at page 43 of 219 U. S., at page 138 of 31 S.Ct., 55
L.Ed. 78, 32 L.R.A.,N.S., 226, Ann.Cas.1912A, 463, "operate to preclude
the party from the right to present his defense to the main fact thus presumed".
The defendant in this case did present his evidence. It would clearly, if
believed, have established possession long before the statute was passed. That
the trier of the fact will not believe one's story is a risk common to all
litigants, although it may be granted that it bore particularly hard upon Tot,
whose previous criminal record was already in the case. It must be borne in mind
that the legislation here is not sweeping in its scope as directed against all
citizens in the possession of inherently innocent objects. It is dealing with
firearms. And it is directed only at that narrow group which has already been
convicted of crimes of violence.
This question may be approached from another angle to reach the same
result. That the legislature in accomplishing an admittedly lawful and
constitutional object may protect the result sought by a means which when
considered by themselves might be unconstitutional is well established. Mr.
Justice Holmes states the point in characteristic epigram: "*** the law allows a
penumbra to be embraced that goes beyond the outline of its object in order that
the object may be secured." The
concept is no stronger or no weaker by calling it the penumbra doctrine. There
are numerous instances of this power. Thus a statute which forbids the removal
of original marks from imported merchandise is constitutional, even after the
latter have come to rest in a State, as one reasonably calculated to render
effective the principal requirement that the goods bear a mark at the time of
importation. United States v. Ury, 2 Cir., 1939, 106 F.2d 28, 124
A.L.R. 569. A State statute forbidding the possession of game during the
closed season is constitutional even if applied to game taken elsewhere and
brought into the State. Silz v. Hesterberg, 1908, 211 U.S. 31, 29
S.Ct. 10, 53 L.Ed. 75. Regulations requiring certain labeling of
denatured alcohol, unsuitable as a beverage, were upheld within the power of
Congress under the Eighteenth Amendment. Selzman v. United States,
1925, 268 U.S. 466, 45 S.Ct. 574, 69 L.Ed. 1054. So, too, forbidding the
prescribing of intoxicating malt liquors for medicinal purposes was upheld as an
aid to prohibition enforcement. Everard's Breweries v. Day, 1924,
265 U.S. 545, 44 S.Ct. 628, 68 L.Ed. 1174. Likewise, the forfeiture of
empty barrels, bottles, corks and cartons was sustained. Danovitz
v. United States, 1930, 281 U.S. 389, 50 S.Ct. 344, 74 L.Ed. 923. The
list, which does not pretend to be exhaustive, may be closed with reference to
United States v. Darby, 1941, 312 U.S. 100, 657, 61 S.Ct. 451,
462, 85 L.Ed. 609, 132 A.L.R. 1430, a case under the Fair
Labor Standards Act, 29 U.S.C.A. § 201 et seq. where the Court said "***
Congress *** may require the employer, as a means of enforcing the valid law, to
keep a record showing whether he has in fact complied with it. The requirement
for records even of intrastate transactions is an appropriate means of the
The social end sought to be achieved by this legislation, the
protection of society against violent men armed with dangerous weapons, all
would concede to be fundamental in organized government. The entry of the
federal authority in the field to help accomplish this purpose has not been
challenged. It has been taken for granted by both sides in the discussion of
this case. We also think it may be assumed. In accomplishing the admittedly
constitutional object we do not think the means taken by this statute, while
stringent, have become so oppressive and arbitrary that we are entitled to say
that Congress has exceeded its authority in acting without due process of
The judgment is affirmed.
 15 U.S.C.A. § 902(f).
 Cf. United States v. Lefkowitz, 1932, 285 U.S.
452, 52 S.Ct. 420, 76 L.Ed. 877, 82 A.L.R. 775, and Go-Bart
Importing Company v. United States, 1931, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed.
374, with Marron v. United States, 1927, 275 U.S. 192, 48
S.Ct. 74, 72 L.Ed. 231.
 4 Am.Juris., Arrest, § 68.
 Agnello v. United States, 1925, 269 U.S. 20, 30,
46 S.Ct. 4, 70 L.Ed. 145. The Court states that this privilege exists
where the arrest is made for a crime committed in the presence of the arresting
officers. The latter requirement merely establishes the lawfulness of an arrest
without a warrant, as in the Agnello case. When the arrest is made with a
warrant, as here, the requirement is unnecessary, for then, the privilege of
search and seizure, being incidental to a lawful arrest, is as extensive.
 1 Restatement, Torts (1934) § 214, comment f.
 McGuire v. United States, 1927, 273 U.S. 95, 98,
99, 47 S.Ct. 259, 71 L.Ed. 556.
 15 U.S.C.A. § 901(3).
 Hearings before Senate Committee on Commerce on S. 3.
74th Cong., 1st Sess. (1935) 10, 13, 15, 44; Hearings before H. R.
Subcommittee of the Committee on Interstate and Foreign Commerce on S. 3, 75th
Cong., 1st Sess. (1937) 4, 5, 18. Sen. Rep. No. 997, 74th Cong.,
1st Sess. (1935) 1; Sen. Rep. No. 82, 75th Cong. 1st Sess. (1937)
 It is also noteworthy, that the first two drafts of this
section interposed a semi-colon between "explosive" and "and". See text as it
appears in Senate Hearings, supra at pp. 1, 2 and in 79 Cong.
Rec. 11973, 11974 (1935). The semi-colon was absent in the third draft
which was sent without further amendment to the House. See H.R. Hearings,
supra, at pp. 1-3. The Senate Report on the third draft states that the
only change from prior drafts in the bill appears in a section, other than the
one under consideration. See Sen. Rep. No. 82, supra, H.R. Hearings,
supra, at p. 13. This legislative history indicates that the omission of
the semi-colon in the final draft was unintentional. With that punctuation mark,
it is clear that the statute meant guns with or without silencers as is
otherwise apparent from the Hearings, supra.
 "The term 'firearm' means (1) any weapon, by whatever name
known, which is designed to expel a projectile or projectiles by action of an
explosive, (2) any part or parts of such weapon, and (3) a firearm muffler or
firearm silencer." 26 Code Fed.Regs., 1939 Supp. (1940) §
 August 6, 1939, 15 U.S.C.A. §
 Aluminum Co. of America v. United States, 3
Cir., 1941, 123 F.2d 615, 620. The Regulation does not, on the facts
here, gain authority from its long standing character. It became effective May
1, 1939. The statutory amendment came in August of the same year. But the
subject matter of the statute, and obviously especially the definitional
provisions, were before Congress during the dates mentioned.
 1 Elliot's Debates on the Federal Constitution (2d Ed.
1901) 371, 372 (Luther Martin's letter to the Maryland Legislature);
4 id. 203 (Lenoir, North Carolina Convention); 5 id.
445 (Sherman of Connecticut at the Federal Convention). Emery, The
Constitutional Right to Keep and Bear Arms (1915) 28 Harv.L.Rev. 473;
Haight, The Right to Keep and Bear Arms (1941) 2 Bill of Rights Rev.
31; McKenna, The Right to Keep and Bear Arms (1928) 12 Marq. L.
 As to the latter, see The Federalist, Nos. XXIV-XXIX
and No. XLVI.
 See Aymette v. State, 1840, 2 Humph. 154, 21 Tenn. 154; also law
review articles in f.n.13.
 See Haight, supra and McKenna,
 See Emery, supra, at pp. 473, 474.
 See f.n.16.
 The statute is applicable to anyone who has been convicted of
a crime of violence which is defined as "murder, manslaughter, rape, mayhem,
kidnaping, burglary, housebreaking; assault with intent to kill, commit rape, or
rob; assault with a dangerous weapon, or assault with intent to commit any
offense punishable by imprisonment for more than one year." §
 The instrument itself was in evidence as a government
 9 Wigmore on Evidence (3rd Ed. 1940) § 2941.
 McIver v. Schwartz, 1929, 50 R.I. 68, 145 A.
101 but contra see O'Dea v. Amodeo, 1934, 118 Conn. 58, 170
A. 486 and see the adverse comment on the McIver case by Morgan in
Instructing the Jury Upon Presumptions and Burden of Proof (1933) 47
Harv.L.Rev. 59, 78-81; Some Observations Concerning Presumptions
(1931) 44 Harv.L.Rev. 906, 912-913.
 (1920) 68 U. of Pa.L.Rev. 307, 315 f.n.13.
 On cross-examination:
"Q. You are not an expert on guns? A. No."
"Q. Are you able to tell us definitely and
certainly the way you appeared to tell us on direct examination, Mrs. Tot,
that It was this gun that your husband had rather than some gun of the same
make and calibre, general appearance or what not? A. Well, I cannot tell you
definitely, but it was one like it.
"Q. It was one like it. It might have been some
other gun? A. Well, I don't know guns, one from the other.
"Q. I see. All you are able to tell us is that
your husband Frank Tot had a gun. A. Yes, sir."
"Q. And you are unable to tell us even roughly, I
take it, how many times all told you saw the gun? A. No."
"Q. Are you a gun expert? A. Oh, I should say
"Q. Then I take it you don't know either whether
this is really the same gun that you say you saw? A. Well, it reminded me of a
water pistol; that is why I know it.
"Q. I take it--A. I don't mean I know it, but
the name on it.
"Q. The name Colt? A. That's right.
"Q. You know your brother had a Colt gun, is
that it? A. That's right."
"Q. Then, what you know is that your brother
used to have a Colt gun that looked like a water pistol? A. One of those
things just like you have in your hand."
"Q. You would see the gun in the drawer? A.
"Q. Or to be more precise, you would see a gun
in the drawer, right? A. Of course, a gun."
 Yee Hem v. United States, 1925, 268 U.S. 178,
45 S.Ct. 470, 69 L.Ed. 904 (Jones-Miller Act, 21 U.S.C.A. §
174. "*** such possession shall be deemed sufficient evidence to
authorize conviction unless the defendant explains the possession to the
satisfaction of the jury"); Hawes v. State of Georgia, 1922, 258
U.S. 1, 42 S.Ct. 204, 66 L.Ed. 431. State statute which provided that
distilling apparatus found upon land shall be prima facie evidence that the
person in possession of the premises had knowledge of the existence thereof,
held constitutional, although defendant was not allowed to testify under oath or
to have the testimony of his wife; Fong Ye Ting v. United States,
1893, 149 U.S. 698, 13 S.Ct. 1016, 37 L.Ed. 905, Chinese found in United
States without prescribed evidence as to lawful residence to be deemed to be
unlawfully in United States unless each establishes by one credible white
witness facts to the contrary.
 15 U.S.C.A. § 901 et seq.
 See note, Statutory Presumptions and Due Process of Law
(1929) 43 Harv. L. Rev. 100.
 For a collection of State regulations, see 3
Prentice-Hall 1942, Fed. Tax. Serv. Par. 31502. For New Jersey
specifically, see N.J. Rev. Stat. (1937) 2:176-3, 4, 5, 8, 33, 44,
N.J.S.A. 2:176-3, 4, 5, 8, 33, 44.
 1 Hearings before Senate Subcommittee of the Committee
on Commerce, pursuant to S. Res. 74, 73rd Cong., 2nd Sess. (1933) 9. The
Federal Firearms Act was partly the result of the evidence adduced at these
hearings authorized by S. Res. 74, entitled: A Resolution Authorizing an
Investigation of the Matter of So-called "Rackets" with a View to Their
Suppression. See S. Hearings, supra, f.n.8 pp. 1, 19
and H.R.Hearings, supra, f.n.8 pp. 3,
 See S. Hearings on "Rackets" supra, f.n.29, v. 1, pt. 2,
pp. 220, 261, pt. 3, pp. 276, 354. See also, Department of
Commerce, Bureau of the Census, The Prisoner's Antecedents (1929) p. 12, table
5, and pp. 54-57, table 36, showing the tendency of criminals to roam,
specifically indicating the correlation between gun offenders and nonresidency
in the state where the offenses were committed.
 The statute was enacted June 30, 1938, but became effective
by its terms, 30 days thereafter. The instruction was therefore incorrect in
placing emphasis on the June 30 date. As we view the case, however, this was
harmless error. There was no evidence whatever indicating acquisition of the
weapon between June 30 and July 30. If the defendant's evidence was to be
believed, he had acquired the gun years before.
 One section of the statute (§ 904)
expressly deals with exceptions. Certain persons are excepted and so also,
certain firearms; these are those which are "antique or unserviceable." This
case is not concerned with them.
 9 Cir., 1926, 16 F.2d 870, certiorari denied,
1927, 274 U.S. 745, 47 S.Ct. 660, 71 L.Ed. 1326.
 As stated in the Turnipseed case,
 Schlesinger v. Wisconsin, 1926, 270 U.S. 230,
241, 46 S.Ct. 260, 262, 70 L. Ed. 557, 43 A.L.R. 1224. The quotation is
from the dissenting opinion. The presumption under consideration in that case
was a so-called "conclusive presumption" which, of course, presents quite a
different problem from the one under consideration here.
 See an essay, Black, The Penumbra Doctrine and
Prohibition Enforcement (1933) 27 Ill. L. Rev. 511, where the author
criticizes its application in a series of prohibition