inspection of the revolver identified in the Indictment so that this motion is now moot.
MOTION TO DISMISS
Defendant has moved to dismiss the Indictment, alleging that (1) the presumption that defendant's prior conviction and his present intrastate possession of a firearm established that he is burdening commerce, etc., violates the due process clause of the Fifth Amendment; (2) by registering and obtaining a permit under the Pennsylvania Uniform Firearms Act, 18 P.S. § 4628, he was compelled to incriminate himself in violation of the Fifth Amendment, and (3) the Gun Control Act is arbitrary, discriminatory and unreasonable in that the test of unfitness to carry a gun which Congress established (conviction of a felony) is not relevant to the protection of the public.
With reference to point (1), defendant relies heavily on Tot v. United States, 319 U.S. 463, 63 S. Ct. 1241, 87 L. Ed. 1519 (1943). Tot is clearly inapposite to the case at bar. The statute involved in Tot proscribed the receipt by certain criminals of a firearm which had been "shipped or transported in interstate * * * commerce" and possession of a firearm created the presumption that it was so shipped or transported. The statute here raises no such presumption and is not predicated on receipt of goods as a part of interstate transportation, but concerns itself with receipt, possession or transportation "in commerce or affecting commerce." Therefore, the thrust is directed to activities burdening commerce, Cf. Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 85 S. Ct. 348, 13 L. Ed. 2d 258 (1964), and not to interstate transportation as such.
Defendant's point (2) is similarly without merit. There is no constitutial attack here on the registration requirements of the Pennsylvania statute and, at this stage of the proceedings, there is no apparent relationship between it and this prosecution. Any further belaboring of this contention is unnecessary.
As to point (3), Congressional action is valid if there is a rational basis for finding the prohibition necessary to the protection of commerce. Katzenbach v. McClung, 379 U.S. 294, 85 S. Ct. 377, 13 L. Ed. 2d 290 (1964). Forbidding possession of firearms to classes of specially risky people in order to avoid burdening commerce or risks to the President and other federal officials is within the power of Congress. United States v. Bass, 308 F. Supp. 1385 (S.D.N.Y. 1970). The language of the Court in United States v. Wiley, 309 F. Supp. 141 (D.C. Minn. 1970), is especially pertinent:
"Experience demonstrates and common sense agrees that an effective gun control system must include control of possession. Denying possession of guns to persons who are likely to misuse them is reasonably calculated to prevent subversion of local gun laws and the commission of State and Federal crimes, including crimes that affect interstate commerce. This is especially so in view of the high rate of recidivism by persons with conviction records. In devising the regulation, Congress is entitled to conclude that control can best be imposed through federally defined minimum nationwide standards. From a Constitutional standpoint, it is irrelevant that fewer than a majority of the persons within the prohibited class will use a weapon in a manner in or affecting commerce. The Constitution does not impose on Congress the impossible task of devising a system of regulation covering only those particular individuals who will commit such acts. Congress can reach interstate and intrastate distribution and sales, but such regulation cannot be effective unless Congress has the power also to reach those who possess such weapons. Minor v. United States, [396 U.S. 87, 90 S. Ct. 284, 24 L. Ed. 2d 283] supra."