Appeals Court: Government Can Require Gun Registration

CBS News ^ | August 19, 2009 | Declan McCullagh

[neverdem]

(AP)

An appeals court in Chicago has ruled that the federal, state or local government can require all citizens to register their firearms under penalty of law.

A three-judge panel of the U.S. Seventh Circuit Court of Appeals said that, even after the Supreme Court's high-profile gun rights decision last year, the Second Amendment is no obstacle to mandatory gun registration.

The case arose out of the Chicago-area town of Cicero's mandatory registration requirement for firearms. A local man named John Justice was raided by the Cicero police on suspicion of violating business ordinances including improper storage of chemicals; the police discovered six unregistered handguns during the raid.

Justice runs the Microcosm laminating company on 55th Ave., which sells special adhesives and does custom coatings for customers, and argued in a civil lawsuit that the local ordinance violated the Second Amendment. He did not immediately respond to a request for comment on Wednesday.

In a 3-0 opinion published last Friday, the judges said that this was a different situation from the District of Columbia v. Heller case, which led the Supreme Court to strike down D.C.'s law effectively prohibiting the ownership of handguns.

"There is a critical distinction between the D.C. ordinance struck down in Heller and the Cicero ordinance," the court said in an opinion written by Judge Diane Wood, a Clinton appointee. "Cicero has not prohibited gun possession in the town. Instead, it has merely regulated gun possession under Section 62-260 of its ordinance."

If the court had merely written that the Second Amendment doesn't apply to the states (a concept called incorporation), this would not have been especially newsworthy. After all, a different three-judge panel from the 7th Circuit already has rejected the incorporation argument.

What's unusual -- and makes this case remarkable -- is that Wood went out of her way to say that even if the Second Amendment does apply to states, mandatory gun registration would be perfectly constitutional. "The town does prohibit the registration of some weapons, but there is no suggestion in the complaint or the record that Justice's guns fall within the group that may not be registered," she wrote. "Nor does Heller purport to invalidate any and every regulation on gun use."

The other judges on the panel were William Bauer, a Ford appointee, and John Tinder, a George W. Bush appointee.

I haven't been able to find the full text of Section 62-260 online (update: I've found it and attached it below), The Legal Community Against Violence's summary of firearm laws says that in Cicero, "all firearms in the City must be registered prior to taking possession of the firearm" and that registration certificates must be renewed every two years.

Alan Gottlieb, founder of the Second Amendment Foundation, said in an interview that registration is terrible public policy, especially because world history shows that it often leads to confiscation.

Last week's decision should remind us that Heller won't be the last word on gun rights, Gottlieb said. "It starts building blocks on a foundation -- you don't win everything in one case," he said. "As you and I know, criminals aren't going to register their guns. Prohibited persons aren't going to register their guns. Someone prohibited from owning a gun isn't going to register it. Registration would apply only to law-abiding citizens."

There is no national registration requirement for firearms, although anyone buying a gun from a dealer fills out a Form 4473, which the dealer must keep on file in paper form for 20 years. My home state of California says that all handguns be registered, but it's not as strict as Cicero's requirement (rifles and shotguns are exempt from registration).

David Kopel, research director at the Golden, Colo.-based Independence Institute, said: "I think Heller at least hints that (Cicero's regulation) might be unconstitutional. Registration of non-commercial transactions might be unconstitutional. At least it leaves the question open." (Kopel has pointed out that four Chicago suburbs repealed their handgun bans post-Heller.)

I happened to interview Paul Helmke, president of the Brady Campaign, earlier on Wednesday and asked him about what the Heller decision means for gun control. He replied: "Outside D.C.'s gun ban and perhaps Chicago's, there really probably aren't that many gun laws that are going to be affected by Heller. What I've argued is that Heller, in a way, took the extremes off the table. It said you can't have a total gun ban like D.C.'s. They also took the other extreme off the table, which is that anyone can have any gun, anywhere, any time."

Read literally, the Seventh Circuit's decision means that the U.S. Congress could enact a mandatory registration requirement tomorrow -- a law saying that you must report your handguns, rifles, and shotguns to the FBI and ATF or go to prison -- and at least one federal circuit would uphold it as constitutional.

But would the Supreme Court justices? A number of gun cases, including one brought by the National Rifle Association, another out of New York, and a third out of California, are headed in their direction. By next summer we may have an answer.

---

Update 1:38am ET: A helpful CBSNews.com reader, James E., was kind enough to point me toward the text of the town of Cicero's regulation. You can find it on Municode.com. The interface is awful, but if you poke around on the menus to the left under Chapter 62, Article VI, you'll find it.

It's a remarkable read. Cicero makes it illegal to possess "any slingshot," or any "laser sight accessory." Non-dealer firearm transfers are prohibited. Carrying a "concealed" knife is prohibited. The unlicensed sale of a "Bowie knife" is prohibited. A quick read shows that it is illegal to "fire or discharge any gun, pistol or other firearm within the town" except at licensed shooting ranges -- which I imagine poses a problem for residents hoping to use a gun for legitimate self-defense.

Anyway, the portion relevant to today's story says: "All firearms in the town shall be registered in accordance with this division. It shall be the duty of a person owning or possessing a firearm to cause such firearm to be registered. No person shall within the town possess, harbor, have under his control, transfer, offer for sale, sell, give, deliver, or accept any firearm unless such person is the holder of a valid registration certificate for such firearm. No person shall, within the town, possess, harbor, have under his control, transfer, offer for sale, sell, give, deliver, or accept any firearm which is unregisterable under this division." (Police, of course, are exempt.)

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Declan McCullagh is a correspondent for CBSNews.com. He can be reached at declan@cbsnews.com. You can bookmark the Taking Liberties site here, or subscribe to the RSS feed.

[neverdem]

I want to see them make people pay for a right enumerated in the Constitution.

[peyton randolph]

I want to see them make people pay for a right enumerated in the Constitution.

---

According to the Supreme Dolts, the Constitution grants a woman the right to kill her unborn child. As taxpayers, we fund that "right" daily.

[Clintonfatigued]

This is ominous. There is an entire amendment to the Constitution affirming that right, which “shall not be infringed.”

Since you can’t post a picture of the Constitution being used as toilet paper, a picture of it on fire would be the best way to sum up these judges’ attitudes.

[bamahead]

So, do they also plan for manditory registration of speech? Mandatory registration of your religion? Mandatory registration of the press? Because all of those rights are enumerated as well.



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[GYL2]

Alan Gottlieb, founder of the Second Amendment Foundation, said in an interview that registration is terrible public policy, especially because world history shows that it often leads to confiscation.

Registration is the same as confiscation – it's just a question of where the guns are stored.

[NonValueAdded]

There damned well is a 2nd Amendment violation, best characterized by this art that I hope never imitates life:

"From the files, obtain form 4473. These will contain descriptions of weapons... and lists of private ownership." Colonel Bella, Red Dawn

Has everyone forgotten what happened in 1775?

[muawiyah]

Cicero is drawing down on the Eastern European authoritarian traditions of so terribly many of its earliest residents.

Virtually all of the weapons registration ideas are total nonsense with no practical application.

[RasterMaster]

[Charlespg]

Come and get them A$$H____

[Eagle Eye]

So when is a court like this going to actually and openly state that the Second Amendment doesn’t exist?

HTH can they say that registration is not an infringement?

What next? Government registered religions? Government registered speech and press?

[Concho]

This stuff is just one more nail in the coffin. They can require all they want, but I would say woe be unto those who go into the community where I live and attempt to enforce it. They would have started the revolution.

Sooner or later a shot is going to get fired, and then its going to dominoe. Then the ruckus will be on. I can imagine 6 swat team nazis heading in to any of these rural neighborhoods and in 10 minutes finding themselves surrounded with 150 non smiling locals carrying black guns. Someone just doesnt get it.

[broken_arrow1]

Here it comes -

Changes coming to unalienable rights

Emminent domain - courts rule you don’t have a right to property.

Right to Bear Arms - “shall not be infringed” doesn’t mean that it can’t be infringe.

[JrsyJack]

Registration is the same as confiscation – it's just a question of where the guns are stored.

Unfortunately all of my guns were lost in a boating accident. Seems to be a common occurrence these days.

[Noumenon]

I know where my line in the sand is. How ‘bout y’all?

Resist.

Or Surrender.

Those are your choices.

[bamahead]

You read my mind, as usual :)

[Charlespg]

Lexington and Concord

[afnamvet]

Wolverines! Indeed! Registration is confiscation.

[Erik Latranyi]

Free, but mandatory registration could be allowed by the courts as it does not infringe the actual right of posession.

We register to vote which is a right.

I see this as a dangerous course for us.

[Abathar]

"The right of the people to keep and bear arms, shall not be infringed."

Such powerful, simple and direct words I believe any common man can instantly understand our framers intent. How they can see those last four words and still come up with laws like in Chicago is beyond me.

[RonInNaples]

Once again judges demonstrate that actual knowledge and common sense is NOT a requirement to being a judge. I guess “shall not be infringed” is as nebuolus to these dolts as the word “no”. My dogs are brighter than these fools and according to a recent study dogs are only as bright as a two-year old. Doesn’t speak well for the judges’ intelligence...