Gun Control in the Third Reich Read online

  Gun control laws are depicted as benign and historically progressive. However, Nazi firearms laws and policies, together with hysteria created against Jewish firearm owners, played a unique role in laying the groundwork for the eradication of German Jewry. Disarming political opponents was a categorical imperative of the Nazi regime. National Socialist leaders and police officials saw the disarming of such “enemies of the state” as an essential component of the consolidation of Nazi power. Adolf Hitler, Heinrich Himmler, Werner Best, Wilhelm Frick, and other members of the Nazi hierarchy were deeply involved in this process. This is the first book to address Nazi firearms laws and policies that functioned to disarm German citizens, in particular political opponents and Jews.

  The book does not crudely argue that gun control led inexorably to the Holocaust, nor does it claim an intrinsic connection between firearms restrictions and genocide or Nazism, as some polemicists would have it. Of course, the Holocaust itself was in many respects a singular event that was only possible due to a very large number of factors that historians are still attempting to understand.

  This book does present the first thorough treatment of Germany’s gun control policies before the Second World War, and the first extensive exploration of how Hitler used these policies in coordination with his persecution of Jews and political opponents. Some polemicists might overstate the relationship between gun control and genocide, but what is worse is the failure of scholars to come to terms with the real connection between disarming policies and oppression.

  The book is divided into four parts representing distinct historical periods from 1918, at the birth of the Weimar Republic, through 1938, at the time of the Night of the Broken Glass. Part I, “Dancing on a Volcano: The Weimar Republic,” describes the post–World War I chaos, in particular the repression of Communist insurgency and the rise of the Nazi Party. In 1928, the liberal Weimar Republic adopted Germany’s first comprehensive gun control law. The era ended with a decree requiring registration of all firearms and authorizing officials to confiscate all firearms, which could only have been enforced against persons who had registered them. Officials warned that the registration records must not fall into the hands of an extremist group.

  Part II, “1933: Enter the Führer,” describes how just such an extremist group seized power. Chapters tell about the massive searches for and seizures of firearms from Social Democrats and other political opponents, who were invariably described as “Communists.” Nazi raids on Jewish quarters to search for firearms also took place in this period, and Nazi power was consolidated in part by disarming “the politically unreliable” and the “enemies of the state.”

  Part III, “Gleichschaltung: Forcing into Line,” concerns the next five years of repression. Nazi leaders leisurely conferred on amendments to the Weimar Firearms Law, which could be revised as society was cleansed with National Socialism. But that theoretical legal discussion was a sideshow. The significant events were the Night of the Long Knives (Nacht der langen Messer), which verified that Hitler could murder any opponent, and the Nürnberg Laws, which reduced the rights of citizenship from Jews. The Secret State Police (Geheime Staatspolizei, or Gestapo) banned independent gun clubs and decreed against issuance of firearm permits to Jews. In 1938, Hitler signed a new gun control law that benefitted Nazi Party members but denied firearm ownership to the perennial “enemies of the state.”

  Part IV, “Reichskristallnacht: Night of the Broken Glass,” sets forth how the groundwork for the pogrom against the Jews was laid weeks beforehand by the systematic disarming of Germany’s Jews. With the shooting of a German diplomat in Paris by a teenage Polish Jew, Hitler approved and Joseph Goebbels orchestrated a massive search-and-seizure operation, allegedly for weapons, entailing the ransacking of homes and businesses. Himmler decreed the punishment of twenty years in a concentration camp for possession of a firearm by a Jew. Diaries and other sources record how the Jewish victims themselves, including gun owners as well as those not remotely connected to gun ownership, described the onslaught.

  The book’s conclusion presents a potpourri of events during World War II, the second half of the “thousand-year Reich,” to explore effects of the disarming policies of the previous two decades. Why was there no armed partisan movement in Germany against Hitler? Did the prior disarming of the Jews facilitate his widening aggression against them? In the occupied countries, the Nazis decreed the death penalty for possession of a firearm, but there were instances of heroic resistance, from various resistance movements to the heroic Warsaw ghetto uprising.

  Hannah Arendt perceptively observed: “It was not until the outbreak of the war, on September 1, 1939, that the Nazi regime became openly totalitarian and openly criminal.”21 Yet that was possible in part because of policies adopted in the prewar period, which is the focus of this work. While the Nazi regime’s repression of civilian gun ownership in the occupied countries represents a complex history that is beyond the scope of this book,22 it is yet another “hidden history” that has been ignored but should be brought to light.

  Despite the significance that the Nazis themselves perceived of the need to ruthlessly disarm political enemies and Jews, no historian has addressed the subject. This book, the first comprehensive account of this topic, is based on never-before-used documents from archives in Germany, German firearms laws and regulations, German and foreign newspapers from the period, diaries, and the historical literature. It presents the first scholarly analysis of the use of firearm laws and policies to pave the way for, establish, and consolidate the Hitler regime, rendering all “enemies of the state” defenseless.

  Every manner in which the Hitler regime created a tyranny during 1933–1938 should need no justification as a legitimate historical topic. How significant portions of the German population were disarmed in this process, particularly Social Democrats and other political opponents beginning in 1933 and the Jews most prominently in 1938, has hardly been so much as mentioned in the vast literature on the Third Reich. That would not be an extraordinary omission if only the police and military had firearms but substantial portions of the German population did not. But a significant number of Germans, including persons of all political persuasions as well as both “Aryans” and Jews, did possess rifles, handguns, and shotguns.23

  Subject to ambiguities, much of this private possession of firearms was lawful, and they included everything from bolt-action rifles and multi-barrel guns to semiautomatics and revolvers. But much of it was not, such as machine guns left over from the Great War and secreted by paramilitary groups. The term “assault rifle” (Sturmgewehr, or storm rifle) would not enter the lexicon until introduced by Hitler in World War II.24 But well before that, extremist groups were adept in using any kind of weapon to assault their opponents.

  Both the Weimar and Nazi regimes sought to regulate, register, and prohibit firearms, differing of course on who would be subject to such measures and the outer extremes of the punishment for violation. The end result was the monopolization of firearms by the Nazi dictatorship so that it could dispense them to favored groups and deny them to disfavored groups.

  As to its relevance today, some may warn that history may repeat itself and has indeed done so elsewhere, while others may suggest that the Nazi experience was unique and not capable of repetition. Other than to note this divergence of opinion, this book says nothing more about current controversies. But denial of what actually occurred in the historical record is not an option.

  *

  1. Bericht über einen polit. Vorfall, 4.10.38, Alfred Flatow. A Rep PrBrRep. 030/21620 Bd. 5 Haussuchungen bei Juden 1938-39. (FB Bd. 5). Landesarchiv Berlin. For details on Flatow, see chapter 10.

  2. See Robert N. Proctor, The Nazi War on Cancer (Princeton, NJ: Princeton University Press, 1999).

  3. Davis v. United States, 328 U.S. 582, 597 (1946) (Frankfurter, J., dissenting).

  4. Property Requisition Act, P.L. 274, 55 Stat. 742 (1941). See Stephen P. Halbrook, Congress Int
erprets the Second Amendment: Declarations by a Co-equal Branch on the Individual Right to Keep and Bear Arms, 62 TENN. L. REV. 597, 618–31 (Spring 1995).

  5. Statement by Representative Edwin Arthur Hall, 87 Cong. Rec., 77th Cong., 1st Sess., 6778 (Aug. 5, 1941).

  6. Rep. John Dingell (D-MI) argued that “sportsmen fear firearms registration. We have here the same situation we saw in small degree in Nazi Germany.” In Federal Firearms Legislation: Hearings before the Subcommittee to Investigate Juvenile Delinquency, Senate Committee on the Judiciary, 90th Cong., 2nd Sess., 478 (1968).

  7. Senator Joseph Tydings (D–MD) disputed “that registration or licensing of guns has some connection with the Nazi takeover in Germany.” Federal Firearms Legislation, 478–79.

  8. Federal Firearms Legislation, 483. The study included a translation of the Nazi Waffengesetz. (Weapons Law) of 1938 (Reichsgesetzblatt 1938, I, 265). Federal Firearms Legislation, 489. (The Reichsgesetzblatt was the official publication of German laws.) Senator Thomas Dodd (D-CT), who had been a prosecutor at the Nuremberg War Crimes Trials and would be a chief sponsor of the Gun Control Act, supplied his own copy of “the original German text” to the Library of Congress to translate. Federal Firearms Legislation, 489.

  9. Brief Supporting Petitioners of Amici Curiae American Jewish Committee, et al., District of Columbia v. Heller, No. 07-290, at 31 n. 11.

  10. Brief of Amicus Curiae Jews for the Preservation of Firearms Ownership in Support of Respondent, District of Columbia v. Heller, No. 07-290.

  11. District of Columbia v. Heller, 128 S. Ct. 2783, 2801 (2008).

  12. Winston Churchill, The Second World War: Their Finest Hour (Boston: Houghton Mifflin, 1949), 272; “Sporting Guns Sought: Group Here Also Wants Pistols to Send to Britain for Defense,” New York Times, Sept. 12, 1940, 9.

  13. “Swiss Voters Stick to Their Gun Tradition,” SwissInfo.com, Feb. 13, 2011, http://www.swissinfo.ch/eng/Specials/Gun_debate/News/Results/Swiss_voters_stick_to_their_gun_tradition.html?cid=29485688 (visited Jan. 31, 2013); Stephen P. Halbrook, Citizens in Arms: The Swiss Experience, 8 TEV. L. & POLITICS 141, 162–74 (2003).

  14. Todd Benson and Terry Wade, “Violence-Torn Brazil Votes to Keep Gun Sales Legal,” http://www.njcsd.org/forum/archive/index.php?t-78.html (visited Feb. 9, 2013).

  15. See Human Rights Council, Subcommission on the Promotion and Protection of Human Rights, 58th sess., agenda item 8, Adoption of the Report on the Fifty-Eighth Session to the Human Rights Council, A/HRC/Sub.1/58/L.11/Add.1 (Aug. 24, 2006) (advocating prohibition of civilian firearms as a “human right”); David B. Kopel, Paul Gallant, and Joanne D. Eisen, The Human Right of Self Defense, 22 BYU Jour. of Public Law 43 (2008).

  16. Reichsminister des Innern(RMI) to Landesregierungen, Feb. 8, 1932, Massnahmen gegen Waffenmissbrauch, Bundesarchiv (BA) Lichterfelde, R 1501/125940, Gesetz über Schußwaffen und Munition Bd. 4, 1931–32, 416–17. Throughout this work, “ss” or “ß” is used depending on the original German source.

  17. “German Weapon Registry to Take Effect in 2013,” Deutsche Welle, Dec. 18, 2012, http://www.dw.de/german-weapon-registry-to-take-effect-in-2013/a-16461910 (visited Feb. 9, 2013).

  18. Michael Birnbaum, “New Gun Database ‘Not a Problem’ for Owners in Germany,” Washington Post, Jan. 20, 2013, A16, http://www.highbeam.com/doc/1P2-34142374.html (visited April 17, 2013).

  19. Stephen P. Halbrook, “Arms in the Hands of Jews Are Danger to Public Safety”: Nazism, Firearm Registration, and the Night of the Broken Glass, 21 ST. THOMAS LAW REVIEW 109 (2009); David B. Kopel, Lethal Laws, XV NYL SCH. J. INT’L…COMP. L. 15 (1995); Don B. Kates and Daniel D. Polsby, Of Genocide and Disarmament, 86 CRIM. L. & CRIMINOLOGY 297 (1995).

  20. See Stephen P. Halbrook, Nazi Firearms Law and the Disarming of the German Jews, 17 ARIZ. J. INT’L & COMP. L. 483 (2000), http://www.stephenhalbrook.com/article-nazilaw.pdf. This article was criticized in Bernard E. Harcourt, On Gun Registration, the NRA, Adolf Hitler, and Nazi Gun Laws: Exploding the Gun Culture Wars (a Call to Historians), 73 FORDHAM L. REV. 653 (2004); Deborah Homsher, Response to Bernard E. Harcourt’s “On Gun Registration,” 73 FORDHAM L. REV. 715 (2004); Robert J. Spitzer, Don—t Know Much about History, Politics, or Theory: A Comment, 73 FORDHAM L. REV. 721 (2004). I responded to Harcourt and the others in Stephen P. Halbrook, Nazism, the Second Amendment, & the NRA: A Reply to Professor Harcourt, 11 TEX. REV. L. & POLITICS 113 (2006), http://www.stephenhalbrook.com/law_review_articles/nazism.nra.pdf.

  21. Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (New York: Penguin Books, 1992), 68.

  22. See Stephen P. Halbrook, Why Can’t We Be Like France? How the Right to Bear Arms Got Left Out of the Declaration of Rights and How Gun Registration Was Decreed Just in Time for the Nazi Occupation, 39 FORDHAM URBAN LAW JOURNAL, 101 (2013).

  23. Obviously no statistics are available about levels of gun ownership in Germany or any other country in the 1920s and 1930s, and even estimates of current levels in various countries would be somewhat speculative.

  24. Peter R. Senich, The German Assault Rifle 1935-1945 (Boulder, CO: Paladin, 1987), 79.

  PART I

  Dancing on a Volcano

  The Weimar Republic

  1

  Insurrection and Repression

  IT MAY HAVE been “all quiet on the Western Front,” but it would be anything but quiet in Germany. Defeat in World War I heralded the demise of the Second Reich and the birth of the Weimar Republic. The reforms enacted in the early days of the republic to bring the country under control and into compliance with the Treaty of Versailles were both chaotic and draconian. In a country with no strong tradition for keeping private arms and certainly no established, protected right to do so, the Weimar Republic laws and policies regarding firearms were vague and at times enforced harshly. Like the country itself, the legal status and political significance of arms were in constant flux. A decade and a half of dancing on a volcano would pass before Hitler seized power, but the groundwork would be laid for Nazi rule.

  In the November Revolution of 1918, workers and soldiers’ councils assumed political power and proclaimed the republic. The drive to democratize the military and establish civilian militias was countered by the military command’s plans to use combat troops to seal off Berlin, disarm the population, and assume dictatorial powers.1 Although the armistice signed by Germany and the Allies allowed the troops to return home, collecting the weapons was something else.

  “The recovery and surrender of weapons and other army materiel have been very slow,” explained a German legal periodical. “Large numbers are still held by private citizens, without title or right, and are a danger to public security.”2 The Reich government thus issued an emergency decree on December 14, 1918, authorizing the German states to set a deadline for surrender of arms. Anyone in illegal possession of a firearm after the deadline expired would be subject to five years imprisonment and a fine of 100,000 marks.3

  In January 1919, the National Assembly (Nationalversammlung) was elected, and Friedrich Ebert of the German Social Democrat Party (Sozialdemokratische Partei Deutschlands, SPD) became chancellor. The German Communist Party (Kommunistische Partei Deutschlands, KPD) instigated the Spartacist Uprising, which was brutally suppressed by government forces and volunteer Free Corps (Freikorps) under the leadership of Social Democrat Gustav Noske.4

  As part of the repression, the Decree of the Council of People’s Representatives on Weapons Possession of January 13, 1919, provided that “[a]ny and all firearms and ammunition of all kinds to be used with firearms must be surrendered immediately.”5 The states were directed to set another deadline to surrender weapons, to designate the checkpoints, and to enact exceptions.6 Once again, whoever kept a firearm or ammunition was subject to imprisonment for five years and a fine of 100,000 marks.7 The decree would remain in force until repealed in 1928.8

  Two days after the firearm ban was decreed, in Berlin Freikorps members murdered the Spartacist leaders
Rosa Luxemburg and Karl Liebknecht. The Freikorps defeated the poorly armed Communists in street fighting in several other cities, including Weimar itself.9

  When Spartacists attacked a Berlin police station in March, killing five officers, Gustav Noske, who was now Reich minister of defense, declared that “any person who bears arms against government troops will be shot on the spot.”10 This order was simplified by the Garde-Kavellerie-Schützen Division to state that anyone who merely possessed a firearm would be executed.11 Based on these orders, hundreds of civilians in Berlin were indiscriminately killed, many just for owning firearms.12

  A Communist uprising in Bavaria in April was also easily repressed and produced more atrocities.13 Referring to the decree by Freikorpsgeneral Burghard von Oven,14 Lieutenant Rudolf Mann, a regimental adjutant, found humor:

  The supreme commander tacked proclamations to the walls: “Warning! All arms are to be surrendered immediately. Whoever is caught with arms in his possession will be shot on the spot!” What could the poor citizen of average intelligence do? Surrender—but how? If he took his rifle under his arm to take it to the place where arms were collected, he would be shot on the steps of his house by a passing patrol. If he came to the door and opened it, we all took shots at him because he was armed. If he got as far as the street, we would put him up against the wall. If he stuck his rifle under his coat it was still worse…. I suggested that they tie their rifles on a long string and drag them behind them. I would have laughed myself sick if I had seen them go down the street doing it.15

  In periods of calm, persons caught with a firearm were prosecuted in court rather than shot on the spot. Mere possession of a pistol was interpreted to violate the decree requiring surrender of firearms, and ignorance of the law was no excuse.16

  Meanwhile, pressure to disarm came from the victorious Allies. The Versailles Treaty strictly limited the quantities of arms that the German army, the Reichswehr, could possess.17 For instance, a maximum of 102,000 rifles and carbines was authorized.18 Provisions of the treaty appear to apply to the entire population, not just to the armed forces, a result perhaps not unintended. It provided that all arms must be surrendered to the victors to be destroyed.19