Gun Control in the Third Reich (2 page)

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 Interprets the Second Amendment: Declarations by a Co-equal Branch on the Individual Right to Keep and Bear Arms
, 62 T
ENN
. L. R
EV
. 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 T
EV
. L. & P
OLITICS
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 S
T
. T
HOMAS
L
AW
R
EVIEW
109 (2009); David B. Kopel,
Lethal Laws
, XV NYL S
CH
. J. I
NT'L
…C
OMP
. L. 15 (1995); Don B. Kates and Daniel D. Polsby,
Of Genocide and Disarmament
, 86 C
RIM
. L. & C
RIMINOLOGY
297 (1995).

20
. See Stephen P. Halbrook,
Nazi Firearms Law and the Disarming of the German Jews
, 17 A
RIZ
. J. I
NT'L
& C
OMP
. 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 F
ORDHAM
L. R
EV
. 653 (2004); Deborah Homsher,
Response to Bernard E. Harcourt's “On Gun Registration,”
73 F
ORDHAM
L. R
EV
. 715 (2004); Robert J. Spitzer,
Don—t Know Much about History
,
Politics, or Theory: A Comment
, 73 F
ORDHAM
L. R
EV
. 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 T
EX
. R
EV
. L. & P
OLITICS
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 F
ORDHAM
U
RBAN
L
AW
J
OURNAL
, 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.

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

The manufacture of arms was severely limited, and the importation of arms prohibited.
²⁰
Universities, “shooting or touring clubs,” and any other associations “will be forbidden to instruct or exercise their members, or to allow them to be instructed or exercised, in the profession or use of arms.”
²¹
Although these measures had the ostensible purpose of suppressing German militarism, they promoted the monopoly of power in the government and discouraged citizens' keeping of arms and knowledge of their use.

In early 1920, the Communists called a general strike in the Ruhr and attacked the Freikorps, which counterattacked and smashed the Communists.
²²
A young Freikorps member wrote: “Our battalion has had two deaths; the Reds 200–300. Anyone who falls into our hands first gets the rifle butt and then is finished off with a bullet…. We even shot 10 Red Cross nurses (Rotkreuzschwestern) on sight because they were carrying pistols. We shot those little ladies with pleasure—how they cried and pleaded with us to save their lives. Nothing doing! Anybody with a gun is our enemy.”
²³

Versailles restrictions on the size of the Reichswehr encouraged the development of unofficial paramilitary forces that increasingly operated underground, hand in glove with the military.
²⁴
Although the Weimar Republic proclaimed that it would no longer rely on the Freikorps, the latter continued obtaining
financial support and arms from the government, often by theft or fraud. Freikorps members would go on to become part of the backbone of Nazism.
²⁵

The Law on the Disarmament of the People, passed on August 7, 1920, provided for a Reichskommissar,
²⁶
who defined which weapons were “military weapons” and thus subject to seizure.
²⁷
Ordinary Mauser bolt-action rifles with five-shot magazines were put in the same class as hand grenades.
²⁸

Massive police raids and house-to-house searches followed, confiscating enormous quantities of “military” weapons from civilians.
²⁹
In Berlin, police established weapon-surrender posts, paying 100 marks for a rifle or carbine. The police hid and kept many weapons for their own use.
³⁰
Berlin's secret police routinely searched for arms, violated privacy rights, and infiltrated organizations.
³¹

German citizens had no legal right to bear arms. A Prussian high court opined that such freedom was at the sole discretion of the police without judicial review.
³²
Nor was any right to keep arms in the home recognized. The Kassel regional court upheld a conviction for possession of hunting rifles and military firearms found in a search of the defendant's apartment.
³³

Meanwhile, the Communists, manipulated by Stalin's Comintern, continued to pursue violent tactics.
³⁴
Such adventurism encouraged the growth of the emerging Nazi Party—the National Socialist German Workers Party (Nationalsozialistische Deutsche Arbeiterpartei, or NSDAP)—under the leadership of
Adolf Hitler. Its paramilitary wing was the Storm Troopers (Sturmabteilung, or SA).
³⁵

SA leader Kurt Ludecke, who would be purged in Hitler's Night of the Long Knives in 1934, described the situation:

As the bearing arms, or even the possession and concealment of them, was severely punished, usually with several years' imprisonment, it was naturally no easy task to obtain them and keep them in secret. Arms were being bootlegged, and it was an exciting business. One had to risk danger a hundred times to find a single weapon that was intact, rustless, and uniform with the rest.

By the end of December 1922,…I had managed to secure and hide outside Munich, fifteen heavy Maxim guns, more than two hundred hand grenades, one hundred and seventy-five perfect rifles, and thousands of rounds of ammunition—a real arsenal.
³⁶

As this description illustrates, members of extremist parties took risks to arm themselves. Law-abiding citizens did not.

Germany was a decade away from the Nazis' taking power, but fascism had just taken hold in Italy. Prime Minister Benito Mussolini told the Italian Senate in 1923 that he had restored order by eliminating subversives, noting: “On the morrow of each conflict I gave the categorical order to confiscate the largest possible number of weapons of every sort and kind. This confiscation, which continues with the utmost energy, has given satisfactory results.”
³⁷

The German Communists pointed to Mussolini's new dictatorship and to the “German fascists” as reasons to organize and arm the “Proletarian Hundreds.”
³⁸
On October 24–25, 1923, with prodding from Stalin's Comintern, the Reds launched the Hamburg Uprising, attacking police stations and seizing arms. As revealed in an account by its leader, twenty-five-year-old student Hans
Kippenberger,
³⁹
some 1,300 insurgents with only eighty poorly maintained firearms, mostly revolvers, faced some 5,000 policemen armed with rifles, pistols, and machine guns.
⁴⁰

The Communists seized some police stations and obtained more arms. Some insurgents lacked minimal firearm training—they captured three submachine-guns but had to obtain instruction from the police prisoners on how to use them!
⁴¹
Barricades were erected, and street fighting ensued, but government forces predictably smashed the insurgency.
⁴²

Without regard to whether the Communists really represented the working class and would have established a tyranny had they seized power, as they did in Russia, this episode provides insight into why the proletariat did not resist Hitler a decade later. The working class had few firearms and no tradition of keeping and using them. If it is accurate that “the Proletarian Hundreds contained 250,000 workers in 1923, but there were only arms for a few thousand of these,”
⁴³
proletarians with no political incentive to obtain arms—those who were just working and trying to survive—may have had a far lower rate of firearm ownership.

The Hamburg Uprising and other insurrections demonstrated, according to the Communist account, that “[a]s a result of ruling-class terror, and its own lack of financial resources—the military organization of the proletariat is often unable to procure enough arms and ammunition before the insurrection even to arm itself, let alone the broad proletarian masses…. Another weakness of the proletariat is the fact that most of the insurgents…do not have any adequate knowledge of how to handle weapons.”
⁴⁴
To the extent that workers in general lacked arms, they had little means to resist the tyranny that Nazism would later impose.

Just two weeks after the failed Hamburg Uprising, Hitler staged his own failed putsch in Munich. As elsewhere, in Bavaria the government and Reichswehr had large quantities of arms left over from World War I. In the face of the Versailles Treaty, the government had secreted some, allowed paramilitary groups known as the Verbände (Units) to have some, and surrendered others to the Allies for destruction. After the collapse of the Bavarian Soviet Republic in 1919, authorities “painstakingly disarmed the city workers, and kept them pretty well disarmed by a continuous campaign of searches.” At the same time, it armed the Verbände.
⁴⁵

This was the context of Hitler's Beer Hall Putsch in Munich on November 8–9, 1923. In addition to government-issued arms already possessed by the Nazis, SA leader Ernst Röhm acquired arms from the Reichswehr under the pretense that his group was conducting night exercises.
⁴⁶
In the putsch, Hitler took officials hostage at gunpoint at the Bürgerbräukeller, a large beer hall in Munich; a failed attempt was made to seize the main police station; and the Nazis tried to advance but were stopped by the police. The police fired and killed fourteen Nazi “martyrs” as Hitler ran away.

A week later the Bavarian government decreed that Nazis would be denied the privilege of possessing state-owned arms that had been accorded to patriotic Verbände loyal to the state. Loyal groups could keep the arms if they reported to the Reichswehr within ten months. The decree did not affect possession of firearms in the homes of private individuals.
⁴⁷