Lethal Passage: The Story of a Gun

by Erik Larson

  My neighbors may not want to hear this, but on May 15, 1992, I set out to join this none-too-exclusive club and applied for my own Federal Firearms License. The two-page application, ATF form 7, asked which grade license I wanted. There are nine levels, costing from $30 to $3,000, the latter qualifying the holder to import “destructive devices” such as mortars, bazookas, and other weapons with a barrel-bore diameter of half an inch or more. The form asked the same nine questions about my criminal past that appear on form 4473. It also asked what other business would be pursued at my “business location,” in my case, my home. I wrote “communications,” typically a catchall category for journalists, advertisers, writers, and others. It also asked my business hours—I listed ten to five-thirty, Monday through Saturday. The form then asked: “Are the applicant’s business premises open to the general public during these hours?”

  I thought about this one. If I ever did get down to actually selling guns, of course I would admit my customers. But they would have to ring the bell first and I would have to be home, but yes—they’d have the run of the place or at least my office, where my FFL is currently openly displayed as per federal regulations. It is taped to my wall, above my official National Rifle Association membership card.

  I received my license on June 22, 1992, well within the forty-five days in which ATF is required to accept or deny an application.

  No one called to verify my application. No one interviewed me to see if in fact I planned to sell weapons or not. There was no federal requirement that I first check with authorities in Maryland and Baltimore about specific local statutes that might affect my ability to peddle guns in the heart of my manicured, upscale, utterly established Baltimore neighborhood. As far as the federal government was concerned, I was in business and could begin placing orders for as many weapons as I chose. In short, I could supply an urban army with modern, high-powered weapons of state-of-the-art lethality, and ATF wouldn’t know anything about it. The bureau would not know, that is, unless the weapons began turning up during arrests by ATF agents or local police, or unless ATF inspectors conducted a routine compliance audit. Federal law allows ATF to do only one such audit a year of each licensee, unless the agency has a specific investigative reason for doing more.

  In one crucial area, federal firearms law explicitly favors gun dealers over consumers. Any consumer who knowingly makes a false statement or representation during a firearms transaction, as Curtis Williams found when he bought a gun for Nicholas Elliot, automatically commits a felony and faces a fine of up to $5,000 and a prison term of up to five years. Yet any Federal Firearms Licensee—a dealer, manufacturer, importer, or distributor—who commits the same offense faces a maximum fine of only $1,000 and imprisonment for not more than one year. In short, the consumer commits a felony; the dealer a misdemeanor. The distinction is crucial. A dealer convicted of a mere misdemeanor can still keep his Federal Firearms License; if convicted of a felony, he cannot.

  In cases where dealers are suspected of knowingly and willfully selling guns to crooks and traffickers, ATF can be a tenacious, sly, and forceful investigator. The agency is fond of saying that dealers who commit such violations will get caught sooner or later, once the ATF National Tracing Center at Landover, Maryland, detects evidence of their wayward dealings. Indeed, in the 10 percent of crimes where law-enforcement officials actually request a federal trace, the tracing network often proves an effective investigative tool both in solving crimes and for identifying renegade dealers. There is a fundamental problem with this approach, however: by the time the tracing center does get involved, the guns in question have been used in crime, typically serious crime involving assault, homicide, or narcotics peddling. ATF gets another notch in its holster, the illegal dealer is put out of business, but society is left to tend its wounds—grief, disability, surgical bills, lost income, psychic trauma, and the increasingly pervasive feeling that one is not safe in one’s own home.

  At times through its history ATF has tried to take a more proactive stance toward regulating the flow of firearms. The agency is immensely proud of the lawmen it counts as its ancestors, in particular Eliot Ness, the legendary commander of “The Untouchables.” Walk into the offices of many senior ATF officials and you’ll find a framed poster from the 1987 movie The Untouchables, which starred Kevin Costner and Sean Connery. The ATF press office provides reporters with a packet of background information on the bureau, including a one-page biography of Ness.

  Only by understanding how ATF evolved from a tax-collection agency to the nation’s sole firearms cop can one come to understand the complex relationship between the bureau and the firearms industry, and why no federal entity saw a need to examine Guns Unlimited’s role in the arming of Nicholas Elliot.

  The Bureau of Alcohol, Tobacco and Firearms became the nation’s enforcer of federal firearms laws largely by default. ATF traces its roots as far back as 1791, when Congress imposed the first federal tax on distilled spirits, an act that promptly led to the Whiskey Rebellion of 1794. Congress periodically repealed and levied alcohol taxes until 1862, when it created the Office of Internal Revenue and made the tax a formal, permanent part of the government’s income. The office deployed three agents to enforce the law.

  On January 16, 1919, the Treasury Department became far more deeply involved in law enforcement when Nebraska cast the last vote necessary to ratify the Eighteenth Amendment to the Constitution, banning the manufacture, sale, and transport of alcoholic beverages. The national Prohibition Act, also known as the Volstead Act for Minnesota congressman Andrew J. Volstead, placed responsibility for enforcing the amendment with the commissioner of Internal Revenue because of the department’s prior role as collector of alcohol taxes and enforcer of violations of the alcohol tax laws.

  The amendment may have crimped the supply of booze, but it did nothing to diminish America’s thirst. Underworld entrepreneurs throughout the country sought to satisfy demand by building illegal distilleries and saloons. The amendment guaranteed them a large clientele: while it outlawed the production and distribution of booze, it allowed consumers to own, drink, and even buy alcoholic beverages without penalty. Gangs fought each other for control of the underground distilleries and distribution networks and paid a substantial portion of their profits to local officials and police to help protect their interests.

  What ATF neglects to tell in its fact sheets and its biographic handout on Eliot Ness is that agents of Treasury’s Prohibition Unit were themselves notoriously corrupt. They received abysmally low salaries, which Robert J. Schoenberg, author of the 1992 biography Mr. Capone, called an “invitation to corruption.” The agents’ behavior heartened the leaders of Chicago’s Prohibition gangs, who found they exhibited, as Schoenberg puts it, “an almost Chicagoan capacity for corruption.”

  Eliot Ness urged his supervisors to let him establish a special unit of young agents not yet “bent” by mob money and influence, and in September of 1929 he founded a squad the newspapers would soon begin calling The Untouchables, for their apparent resistance to corruption. Far from shooting it out with bootleggers and walking up mean streets cradling a tommy gun, Ness and his squad used painstaking investigative techniques to pursue the Chicago gangsters, chief among them Alphonse Capone, also known as Scarface. One of their coups was to place a wiretap in a nightclub operated by Al Capone’s brother Raffalo, more commonly known as Ralph.

  Like the Wild West heroes who came before him, Ness was largely responsible for his own legend. In a 1957 book called The Untouchables, which became the basis for the TV series starring Robert Stack, Ness played up the dangers of pursuing Al Capone, even though in fact Capone and other gangsters had an overwhelming respect for the damage they would do to their own interests if they ever killed a federal agent. Indeed, Schoenberg writes, Capone explicitly warned his men not to shoot it out with Treasury agents—just to get away, if possible.

  The real hero in the pursuit of Al Capone, according to Schoenberg, was an �
��investigative accountant” named Frank Wilson, an Internal Revenue agent who would later become head of the U.S. Secret Service, another branch of the Treasury Department. Wilson and colleagues doggedly hunted for evidence that Al Capone had failed to pay his income tax. The first step was to prove he even had an income, something Capone had consistently and effectively denied ever receiving. The agents examined some one million checks looking for any hint of money destined for Capone. A breakthrough came when Wilson discovered a ledger confiscated early on in a raid on Capone’s headquarters that had been left to gather dust at the back of a file cabinet at his office.

  Prohibition greatly heightened America’s official distaste for guns. Gangsters rubbed each other out on street corners, in front of restaurants, from armored limousines. By the fall of 1925, as mobs in Chicago fought each other for control, the homicide rate in Cook County, Illinois, rose to more than one murder per day, a decidedly modern rate of mutual disposal. For as long as the killing remained in the family, the public was enthralled. Chicago’s gangsters were glamorous celebrities thumbing their noses at a censorious government intent on denying the public its pleasures.

  The history of gun violence, however, teaches two important maxims, whose predictive power was demonstrated yet again during the Prohibition wars.

  First, violence will always spread beyond boundaries initially found by the public at large to be “acceptable.” That is, gang warfare—or, as today, inner-city feuds between drug dealers—will inevitably expand beyond those boundaries to include bystanders.

  Second, guns will always migrate from the hands of their originally intended users to those who value their use in crime. Just as the Ingram, designed for military use, became instead the drug-gang weapon of choice and a ghetto icon, so too the Thompson submachine gun, designed to be a “trench broom” for use in World War I, became instead the favored tool of gangsters throughout the country and an icon of the 1920s. In 1969, long before S.W. Daniel began peddling its Cobray as “the gun that made the eighties roar,” William J. Helmer titled his biography of the Thompson gun The Gun That Made the Twenties Roar. The gangsters’ use of the gun was largely responsible for the passage of the nation’s first-ever federal gun controls in 1934, and thus for expanding the Treasury Department’s law-enforcement responsibilities to include firearms.

  The Thompson submachine gun, invented by Gen. John T. Thompson, was built in New York by Auto-Ordnance Corp., founded by Thompson in 1916 with the express purpose of putting the design into production. Like the Ingram, the Thompson submachine gun was initially a failure. The Army did not yet appreciate its value. The gun was too big to be a sidearm, too small for a field rifle, or so went the conventional wisdom of the time. General Thompson, like Gordon Ingram, sought to expand the market for the gun by offering it to consumers, an effort that resulted in some unusual advertising. In a 1922 magazine ad, Auto-Ordnance merged frontier myth with modern firepower, depicting a cowboy in furry chaps and kerchief earnestly firing his tommy gun from the front porch of his ranch house at a group of seven bandits. The text below called the gun “the ideal weapon for the protection of large estates, ranches, plantations, etc.” An article in Army & Navy Journal reported the gun “can be kept in the home as a protection against burglars.”

  Critics, however, described the gun in terms strikingly similar to those used by Col. Leonard Supenski in his critique of S.W. Daniel’s Cobray pistol. In 1923, a British firearms expert described the tommy gun as “an arm that is useless for sport, cumbrous for self-defense, and could not serve any honest purpose, but which in the hands of political fanatics might provoke disaster.”

  The gun did not initially win many military contracts, but it captured the imagination of the Chicago gangs. The first recorded use of a tommy gun in crime occurred in Chicago on September 25, 1925, when Frank McErlane, a Chicago bootlegger, set out to assassinate a competitor named Spike O’Donnell. Police were stymied by the volume and the orderly arrangement of bullet holes left in a storefront by the attack. McErlane used the gun again just over a week later when he blasted the headquarters of another bootlegger. Here too no one was killed. A few months later, on February 9, 1926, McErlane used the gun again; this time the weapon made front-page headlines. The banner headline in the next morning’s Chicago Tribune read, “Machine Gun Gang Shoots 2.”

  That day, Al Capone went to a Chicago hardware store and ordered three.

  Capone first used his tommy guns on April 27, 1926, in an attack that would soon become a staple of the gangster-film genre. He and associates set out to kill a bootlegger named James Doherty. Lumbering along in a black, armored Cadillac limousine, Capone caught up with Doherty as he and two other men stepped from a Lincoln and made their way toward one of the many illegal saloons then operating in Chicago. Capone and his gunmen opened fire, killing all three men. They didn’t realize it until later, but they had killed an unintended victim. It was a mistake that would, five years later, prove an important contributor to Capone’s conviction for tax evasion.

  One of the dead men proved to be a twenty-six-year-old Illinois state prosecutor named William McSwiggin, known as the “hanging prosecutor” for his aggressive pursuit of gangsters. In response, police raided Capone’s headquarters, seizing the ledgers that Internal Revenue agent Frank Wilson would later discover at the back of a file cabinet and that would provide the first solid evidence of Capone’s income.

  The attack triggered an arms race. Capone’s enemy, Hymie Weiss, whose gang controlled the North Side of Chicago, acquired Thompsons and, on September 20, 1926, launched a retaliatory attack against Capone, the most spectacular—if ineffective—attack of the Prohibition era, dubbed the “Siege of Cicero.”

  Capone’s headquarters were situated in the Hawthorne Hotel in Cicero, Illinois, some two blocks from the Chicago line. Shortly after one P.M. on September 20, 1926, Capone and his associates were seated in the Hawthorne’s first-floor restaurant, which was packed with other diners. They heard the telltale chatter of a machine gun somewhere down the street, but none of the screams and sounds of shattering glass that tended to accompany that kind of attack. Intrigued, they went to the windows of the restaurant—exactly what Hymie Weiss’s men had intended. That first machine gun was a lure; it was loaded with blanks.

  A Capone bodyguard quickly recognized the trap and forced Capone down. As everyone in the restaurant hit the floor, a convoy of ten limousines and touring cars slowly made its way up the street, machine guns and shotguns firing from every window, pumping some one thousand rounds into the room.

  No one in the room was hit. Outside, two members of a Louisiana family—the mother and her five-year-old son—were slightly wounded. A minor member of Capone’s gang who had been standing outside the restaurant was nicked by a bullet.

  The Thompson submachine gun quickly migrated from Chicago. It turned up next during a gang war in southern Illinois, which even featured dynamite dropped from a biplane. (The bombs never went off.) Philadelphia experienced its first tommy-gun attack on February 25, 1927, New York on July 28, 1928.

  The violence became more grotesque, less the “innocent” battlings of bad guys against bad guys.

  On February 14, 1929, a Cadillac with a siren and gong pulled up in front of the S.M.C. Cartage Company in Chicago. Two men in police uniforms and two in civilian clothes—one wearing a chinchilla coat—stepped from the car. The officers entered the building and announced a raid, ordering the seven men inside to put their hands up and face the wall. Six of the men had ties to a gang led by George “Bugs” Moran; the seventh was a young optician named Reinhart H. Schwimmer, who had become enthralled with the mob and had stopped by that day for coffee.

  The two civilians, each carrying a Thompson, entered next and began firing, instantly cutting down the seven men. For good measure, one of the gunmen then fired from ground level into the tops of their heads. The two gunmen then put their own hands up and were marched back to the car by the two men dressed as p
olicemen.

  The St. Valentine’s Day Massacre marked a change in the public’s willingness to accept gang violence. The brutality of the crime, the fact the men were shot in the back, somehow seemed a violation of criminal etiquette.

  As other massacres followed, the revulsion grew. On July 28, 1931, gangster Vincent Coll tried to kill one of Dutch Schultz’s men as he sat in front of a social club on E. 107th Street in New York. The target escaped unharmed, but the attack, quickly dubbed the Baby Massacre, left five children wounded. One, a baby in a baby carriage, later died. Coll may or may not have used a tommy gun, but the gun took the blame anyway.

  Within a month, two other New York gun battles killed two girls, one eighteen, the other only five. In the latter, gunfire also killed two policemen and three of the assailants and wounded twelve other people.

  Crime seemed poised to overwhelm the country. In 1932, the Lindbergh baby was kidnapped and murdered. (Capone offered $10,000 for information on who did it.) Killers of all kinds—John Dillinger, Pretty Boy Floyd, Machine-Gun Kelly (who contrary to myth never fired a gun in the course of a crime), Clyde Barrow and Bonnie Parker, Baby Face Nelson, and “Ma” Barker—rampaged over the countryside. Bonnie Parker, once again demonstrating that penchant of our heroes of violence for promoting their own legends, wrote poetry about her exploits with Clyde. One, titled “The Story of Bonnie and Clyde” and released to newspapers by Bonnie’s mother, linked the pair to the mythic outlaws of the Wild West:

  You’ve read the story of Jesse James—

  Of how he lived and died,

  If you’re still in need

  Of something to read

  Here’s the story of Bonnie and Clyde.

  Soon after the poem was published, police at last caught up with Bonnie and Clyde and killed them both.