Gun Control in the Third Reich Read online

  6. Reichsgesetzblatt 1928, § 2(1).

  7. Id. § 5.

  8. Id. § 7.

  9. Id. § 10(1).

  10. Id. § 10(3)1.

  11. Id. § 11.

  12. Id. § 15.

  13. Id. § 16(1).

  14. Id. § 16(2).

  15. Id. § 17.

  16. Id. § 23.

  17. Id.

  18. Id.

  19. Id. § 24.

  20. Id.

  21. Id. § 25.

  22. Id. § 26.

  23. Id. § 27.

  24. Id. § 34(1), citing Reichsgesetzblatt 1919, Nr. 7, 31.

  25. Herrmann A. L. Degener, Wer ist’s? (Who’s Who) (Berlin: Hermann Degener, 1928), 888.

  26. James M. Diehl, Paramilitary Politics in Weimar Germany (Bloomington: Indiana University Press, 1977), 341 n. 81.

  27. Josef Schwarz, “Einheitsfront: Die linkssozialistische Regierung der republikanischen und proletarischen Verteidigung in Thüringen 1923” (United Front: The Republican and Proletarian Defense of the Left-wing Socialist Government in Thuringia 1923), https://www.jungewelt.de/loginFailed.php?ref=/2003/10-29/003.php (visited Feb. 9, 2013).

  28. Reichskommissar Kuenzer, “Das Gesetz über Schußwaffen und Munition” (The Law on Firearms and Ammunition), Deutsche Allgemeine Zeitung, Apr. 13, 1928, 1.

  29. “Die Bedeutung des Gesetzes über Schusswaffen und Munition für das Rechtsleben” (Impact on Jurisprudence of the Law Concerning Firearms and Ammunition), Deutsche Juristen-Zeitung, May 1, 1928, S. 632.

  30. “Die Rechtsmittel im Schusswaffengesetz” (Remedies with Respect to the Firearms Law), Deutsche Juristen-Zeitung, June 15, 1928, 871.

  31. Hans Mommsen, The Rise and Fall of Weimar Democracy (Chapel Hill: University of North Carolina Press, 1996), 247.

  32. Ausführungsverordnung zu dem Gesetz über Schusswaffen und Munition (Implementing Decree of the Law on Firearms and Ammunition), July 13, 1928, Reichsgesetzblatt 1928, I, at 198. See “Cabinet of Personages,” Time, July 9, 1928. Available at http://www.time.com/time/magazine/article/0,9171,723466,00.html (visited May 12, 2013).

  33. See Reichsgesetzblatt 1928, I, S. 197,199, § 12.

  34. See id. at § 14(3).

  35. See id. at § 10.

  36. Werner Hoche, Schußwaffengesetz (Firearms Law) (Berlin: Vahlen, 1st ed. 1928, 3rd ed. 1931; Hoche, Waffengesetz (Weapons Law) (Berlin: Vohlen, 1938); Fritz Kunze, Das Waffenrecht im Deutschen Reich (The Weapons Law of the German Reich) (Berlin: Parey, 3rd ed. 1929, 5th ed. 1938).

  37. Hsi-Huey Liang, The Berlin Police Force in the Weimar Republic (Berkeley: University of California Press, 1970), 137.

  38. Diehl, Paramilitary Politics in Weimar Germany, 255–56; Mommsen, The Rise and Fall of Weimar Democracy, 233–34.

  39. Diehl, Paramilitary Politics in Weimar Germany, 256, 370 n. 46; Gesetz zum Schutze der Republic, Reichsgesetzblatt 1922, I, 585.

  40. Quoted in Franz von Papen, Memoirs (London: Andre Deutsch, 1952), 132.

  41. Liang, The Berlin Police Force in the Weimar Republic, 109.

  42. Mommsen, The Rise and Fall of Weimar Democracy, 422–23.

  43. Liang, The Berlin Police Force in the Weimar Republic, 110–11.

  44. Deutsche Juristen-Zeitung, July 1, 1930, S. 877.

  3

  Keeping Firearm Registrations out of the Wrong Hands?

  AT THE END of 1931, the Weimar government authorized the German states to require registration of all firearms and to order confiscation thereof. But the proponents agonized over the abuse of firearm owner lists. After the Nazis took power, the Weimar leaders must have rued the day when they endorsed registration—some of them would be the first to be disarmed. Both liberal and conservative parties paved the way for the repression of themselves and others.

  Wilhelm Elfes, Krefeld police president and a member of the Prussian Council of State, wrote to Reich interior minister Joseph Wirth that a permit to possess any weapon based on proof of reliability and need should be required. “It is my opinion that any possession of arms, not based on express lawful permission, should be prohibited and punished with heavy penalties.”1

  Although the authorities were not ready to go that far, the Reichstag passed the Law Against Unauthorized Use of Weapons (Gesetz gegen Waffenmißbrauch), which Reich president Paul von Hindenburg and Interior Minister Wirth signed into law on March 28, 1931. It banned the carrying of a truncheon or stabbing weapon off of one’s premises, exempting police, persons with firearm carry permits, and hunters. It also made it a crime to assemble armed in a public place for political purposes.2 The police were given unbridled discretion in the issuance of permits and in enforcement of these laws, though as practice revealed, the police authorities themselves were not neutral or even apolitical in their application of the law. Nevertheless, it was generally presumed that the police were the primary social entity responsible for the protection of individual citizens, and this societal and legal norm, rather than any right to bear arms, served as the underpinning for restrictive laws.

  Advocating stiff penalties for violation of the new law, Dr. Hagemann of the Higher Administrative Court in Berlin recited a maze of laws, decrees, and orders that instead suggested the futility of broad, technical weapons prohibitions. He averred that “weapons and firearms often end up in the hands of radical political organizations, which can only acquire them through weapons smuggling or other illegal means.”3 Thus, like previous measures, the new laws served primarily to impact individual gun owners rather than to restrict politically motivated groups.

  Firearm carry permits were hard to come by. As the Prussian Administrative Appeals Court held, “The fact that someone has political adversaries does not prove a need for a weapons license.” The court rejected the plaintiff’s argument “that he is at higher risk because his political or religious adversaries could lie in wait for him,” holding that “the police are responsible for the protection of the public.” Otherwise, “representatives of extreme political parties could request a weapons license.”4

  The applicant for the license in this case was a member of an association that propagated the belief that “Christianity is the source of all evil for our people, that Christianity is nothing more than Judaism and that Christianity delivers not only the German people, but all peoples to Judaism.” Although “such ideas create indignation with people who beg to differ,” the court noted that the plaintiff had a right to utter these thoughts. “He also has the right to reasonable police protection, if his remarks cause agitation, and he did receive such protection after the meeting in H. However, he does not have the right to protect himself with a firearm.”

  The ruling exemplifies the adage that bad facts make bad law. The same reasoning would have applied to a person of the Jewish faith who had been attacked by Nazi gangs.

  A lively debate took place in legal circles. Dr. Flegel, Senior Court-Martial Judge for the Navy (Obermarinekriegsgerichtsrat), abhorred the recent increase in riots in which people were killed. But the existing weapons laws that sought to address this violence were counterproductive, he argued in August 1931:

  Are the authorities justified to call the carrying of a weapon a “misuse” that is subject to punishment if the person carries the weapon exclusively for the purpose of self-defense, a right that every citizen has by law? May a state, which is unable to protect life and liberty of its citizens from unlawful attacks, keep these citizens from exercising their right to self-defense? It is clear that even a strong, but unarmed man will be helpless when confronted by an armed attacker. The fact is that peaceful citizens who respect the law are forced to forego weapons because of the penalties contained in the weapons laws. On the other hand, peace breakers who intentionally violate law and order are not deterred by a prison term.

  He concluded with the classic argument: “Allow the orderly citizen to carry the weapon he needs for his self-defense, but severely punish the person who actually misuses a weapon.”5

  Herr Fre
y, a senior army attorney from Dresden, countered that “existing firearms laws are encouraging weapons misuse and therefore need to be amended.” He deemed the 1928 law too liberal because it allowed “anybody ‘who is reliable,’ over 20 years old, competent, not mentally handicapped,” and without a criminal record to “keep a weapons arsenal of 5 rifles and 5 firearms, as well as 100 rounds, and the police may not impose any restrictions. This represents a grave danger, particularly in times of unrest.” Moreover, “this perfectly legal weapons depot can be extended considerably through hunting rifles,” which required a license from the police only if the hunter owned more than ten. This was “a dangerous incentive for incited persons to obtain such weapons illegally.” Although not explaining how disarming persons with spotless records and licensed hunters would curtail violence, Frey made the valid point that “the assessment of the ‘reliability’ of a person is open to interpretation and gives great importance to the political views of the respective police authority.”6 He did not anticipate how this point would apply when the Nazis came to power.

  For now, Communists must have been considered unreliable. Apparent Reds murdered two policemen in Berlin in August 1931. A gun battle ensued around the offices of the Communist Party, which the police occupied.7

  A conference of state interior ministers took place in Berlin in September to discuss restrictions on political expression and possession of arms.8 Reich interior minister Joseph Wirth recommended measures against subversive writings, the shutting down of pubs where radical elements gathered, and a ban on the Communist Party. Stricter arms controls were discussed. Wirth opposed a prohibition on wearing uniforms in demonstrations, noting that President Hindenberg was himself a member of the Stahlhelm, a veterans movement that paraded in uniform.

  At a follow-up conference in November, most interior ministers advocated a stricter arms law, including either registration of all arms or a total prohibition.9 But it was warned that registration lists could be misused by unauthorized persons to seize arms. Law-abiding citizens would be burdened, but criminal and subversive elements would obtain weapons illegally. Police might not recognize any need for hunters and sport shooters to obtain arms.

  The conference minutes continued: “The thesis asserted by some speakers in the Conference of the Interior Minister that firearms only belong in the hands of the Reichswehr [military] and the police is probably theoretically correct. Unfortunately, the circumstances in Germany are not so ideal that the citizen can deal with criminal attacks, or at least always have immediate police protection.” Indeed, a prohibition on arms, now again advocated by some speakers, had existed for nine years from the 1919 decree without a discernable effect. When the 1928 Firearms Law was enacted, the Reich government and every state had agreed to repeal the 1919 decree.

  There were advantages to the Reich government’s not requiring a permit to possess firearms. “This also avoids the danger that, in chaotic times, the lists of firearms owners would fall into the wrong hands, allowing unauthorized persons to seize arms and use them to commit unlawful acts.” Ironically, this anticipated seizure is what would occur in 1933—registration lists fell into the “wrong hands,” the Nazi government, which seized arms of political opponents and arrested their owners.

  Just as the November 1931 conference was taking place, it became public what the “the wrong hands” might do if they came to power—use the records to identify and execute persons who failed to surrender their firearms. A Nazi group under Werner Best, deputy judge in the Hessian Department of Justice, made plans to seize power, supposedly in the wake of an expected Communist revolution. Known as the “Boxheim documents” (named after the Boxheimer Hof, the house where the Nazis met), the plans were disclosed to Hesse police by Dr. Hermann Schäfer, a recently expelled Nazi Party member.10

  The plans called first for the execution of anyone who failed to obey SA (Storm Trooper) orders and second that “[e]very firearm…be surrendered to the SA within twenty-four hours. Whoever is found in possession of a firearm after expiration of this deadline will be shot on the spot without trial as an enemy of the SA and the German people.”11 The plans included the National Socialist economic program, which outlined abolition of private property, conscription of the labor force, and rationing of food except to Jews.12

  Reich chancellor Heinrich Brüning and criminal prosecutors investigated the matter as possible treason but concluded that the document was only theoretical. Hitler distanced himself from the Boxheim plans, feigning that he sought power only by legal means. Making the most of the episode in the media and elections, opponents of the Nazis publicized it as a plot against the republic.13

  Publication of the Boxheim documents in the international press influenced the perception of Nazism in the United States and elsewhere. Time magazine reported that, according to the Nazi plan, “[a]ny citizen caught bearing arms or disobeying the orders of a ‘Storm Commander’ should be shot without trial.”14

  As fate would have it, when the Nazis came to power, Werner Best would become police commissioner and then governor in Hesse in March 1933. In that role, Best had Dr. Schäfer, who had revealed the Boxheim documents to the police, taken into “protective custody.” In July, when Schäfer was in transport supposedly to be released, he was shot and thrown onto the road. After World War II, Best was tried for the murder but was acquitted for lack of evidence.15

  Best became chief legal adviser to the Gestapo. Anti-Hitler conspirator Hans Gisevius noted, “It was Best who composed the notorious Boxheimer document, the first draft of the decrees which later made possible the Reign of Terror.”16 In this role, Best would actively pursue the disarming of political opponents and Jews. During World War II, Best would hold police power in occupied France and then Denmark,17 where it was decreed that any person who failed to surrender all firearms within twenty-four hours would be executed.18 This was the same twenty-four-hour deadline he had formulated in 1931.

  In 1931, some Weimar officials also advocated a ban on firearms, albeit without suggesting that violators should be shot on the spot. Krefeld police president Wilhelm Elfes proposed a prohibition of arms or, as an alternative, registration of all arms. He stated: “Weapons belong fundamentally only in the hands of the organs of the Reich and the states, because they need the weapons in their service.”19

  The Nazis would retire Elfes as police president in March 1933. He was associated with the resistance to Hitler in 1944, after which he went into hiding.20 Given the Nazi use of the firearm registration regime that he helped to establish, perhaps he later rued the day that he had advocated such policies.

  Reich interior minister Wilhelm Groener thanked Elfes for his timely article, noting his similar views.21 Groener also invited the states’ interior ministers to a meeting with the following agenda:

  Should it be recommended to require a compulsory registration for the possession of firearms and ammunition as well as for slashing and thrusting weapons, so as to introduce the possibility of a duty to surrender all of these weapons and corresponding strict criminal penalties?

  Should it be recommended also to require proof of the need to acquire firearms?22

  The legation from Bremen “desperately sought” the registration–confiscation power and found it “urgently necessary” to require proof of need to acquire a weapon. “These objects, which members of radical associations frequently use, represent a considerable danger.”23 Others objected against denying peaceable citizens the right to have weapons in their homes for protection and sporting use.24

  The Weimar Constitution allowed the executive to issue “emergency decrees” not approved by the Reichstag. Chancellor Brüning increasingly issued such decrees without legislative approval.25 Yet pending decrees were known to the public, such as the one reported by the New York Times datelined from Berlin on December 4, 1931:

  A Christmas political truce, to be effected by the general prohibition of all political meetings and demonstrations between Dec. 20 and Jan.
3, will be among the provisions of the government’s forthcoming emergency decree, it was learned today.

  Furthermore, the seizure will be authorized of all weapons which are owned without special permission—guns, daggers and such….

  The Cabinet was in permanent session today deliberating the provisions of the decree, full publication of which had to be postponed until early next week.26

  In part a reaction to Nazi leader Werner Best’s secret documents,27 on December 8 President Hindenburg, together with Chancellor Brüning, Finance Minister H. Dietrich, and Interior Minister Groener, decreed an amendment to the 1928 Firearms Law. It was included in the Fourth Decree of the Reich President on the Protection of the Economy and Finance and on the Defense of Civil Peace, a controversial measure that covered subjects as diverse as lowering wages and banning the wearing of uniforms by paramilitary associations.28 It authorized the registration of firearms as follows: “The highest State authorities or their delegates may order that in their jurisdiction, the possession of firearms and ammunition regulated by the Law on Firearms and Ammunition, as well as of slashing and thrusting weapons (§1 of the Law Against Unauthorized Use of Weapons), must be registered with the police authorities.”29

  The decree further authorized the police to confiscate all weapons, which would have been practical only in regard to those persons who had dutifully registered them: “Weapons and ammunition found in a jurisdiction in which an order under paragraph (1) has been issued may, if the maintenance of public security and order so requires, be taken into police custody during the validity of this chapter. The possessor must deliver them to the police authority on demand. The duty to surrender arms may also be extended to items that by their nature are not weapons, but which in the circumstances may be used as weapons.”30

  Any person who failed to register or to surrender arms on demand or who was found in possession thereof was subject to imprisonment for not less than three months, with no upper limit.31 In later years, the Nazis made good use of the registration records, and their confiscations of weapons from political opponents and Jews followed the very letter of this law.