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Is a National Firearms Registry Unconstitutional?
Myself ^ | 10/22/2002 | Myself

Posted on 10/22/2002 1:37:02 PM PDT by Joe Brower

Is a National Firearms Registry Unconstitutional?
Joe Brower
10/22/2002

Gun folks;

My apoligies for the vanity post. I am currently engaged in a debate with one of the senior editors of the local "news"paper, a wholly-owned subsidiary of the NY Times. I have been doing well overall. Today, however, I have been asked one question point-blank that I think is indeed a good one, and one that we all should have an answer to in light of the ever-louder screams from the gun-grabbers for a national firearms registry, er, I mean, "ballistic fingerprinting".

Basically, the question boils down to "Is a national gun registry unconstitutional? If not, why not?" I hold that it is not on it's face, and am forming my own arguments towards that end, but I am appealing to you for any wisdom, quotes, sources, etc. that will reinforce and back up this position.

Here is the quoted text below from this fellow's email:

Anyway, the preamble referring to the well regulated militia doesn't mean you would have to be part of some organization to have a protected right to own a gun. I'm with you there. But I'm not with you on the idea that regulating gun owners in some way is also banned.

Where does the 2nd amendment say (or where does that opinion SAY it says) that the state or federal governments can't keep track of who has guns, and what kind of guns they are, or what their ballistic fingerprints are?

Your worry that registration would lead to confiscation is understandable, but it does not follow that if confiscation is unconstitutional, then registration must also be. I don't see any basis for believing, let alone assuming, that registration is banned by the Bill of Rights.

No right is absolute. Your right to vote requires that you have ID and establish your address and age, for instance. That does not infringe on your right to vote.

Like I said, I could really use your input! Thanks in advance, and stay safe,

Joe Brower


TOPICS: Constitution/Conservatism; Culture/Society; Government; News/Current Events
KEYWORDS: ballistic; banglist; constitution; fingerprints; firearmsregistry; guns; rkba
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1 posted on 10/22/2002 1:37:02 PM PDT by Joe Brower
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To: *bang_list

2 posted on 10/22/2002 1:37:31 PM PDT by Joe Brower
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To: Joe Brower; Abundy; Congressman Billybob
I think this would boil down to the extent to which the government can regulate rights. For example, the government can require you get a permit to demonstrate. It cannot deny you the right to demonstrate in some manner without violating the Constitution (although they still try sometimes).

So gun registration would be regulation of a right, and possibly would pass Constitutional muster, which means it is relegated to the really bad idea with tremendous potential for abuse category - a standard which at times has been sufficient for court scrutiny.

Maybe some freepers can help on this angle.

3 posted on 10/22/2002 1:43:39 PM PDT by dirtboy
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To: dirtboy
A national gun database is unconstitutional via the 4th amendment.
4 posted on 10/22/2002 1:45:03 PM PDT by weikel
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To: Joe Brower; Vic3O3; cavtrooper21
Joe,

It's real easy, "SHALL NOT BE INFRINGED". If the feds are databasing gun owners they are infringing their right to keep and bear arms by requiring an unreasonable action on the part of the gun owner. A database has the potential to be abused therefore it is in itself an infringment of the right to own a firearm.

Just my $0.02

Semper Fi
5 posted on 10/22/2002 1:45:13 PM PDT by dd5339
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To: weikel
A national gun database is unconstitutional via the 4th amendment.

There are countless laws that call upon people to reveal to the government what they own and what they have in their homes (I'm playing devil's advocate here, so don't flame me). Putting aside questions regarding the historical linkage of gun registration to confiscation (which is part of the question here), how, from a 4th Amendment viewpoint, is registering your car different than registering your gun?

6 posted on 10/22/2002 1:50:13 PM PDT by dirtboy
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To: Joe Brower
The key point is that registration provides the essential MEANS to achieve wholesale violation of the second amendment, and registration also makes it MORE LIKELY that such violation will occur.

They can't confiscate arms whose location they don't know. They wouldn't dare try, knowing that most arms' locations are unknowable (and may be used against their efforts toward tyranny.) But make the registered portion grow, and the gun-haters would be more tempted to disarm the citizenry, as it becomes more safe and feasible.

If your friend doubts any of this, look at Britain.
7 posted on 10/22/2002 1:50:42 PM PDT by Atlas Sneezed
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To: Joe Brower
Amendment X: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

No power is enumerated allowing for registration.

Of course, your opponent will cite numerous court cases that allow the fed to do pretty much anything it pleases under the interstate commerce or general welfare clauses.

At that point the question becomes: Are government powers solely granted by the People through the Constitution, or do the various branches of government grant themselves powers independent of any constitutional restraints, limited only by the ballot box?

The answer to that question decides what type of country we live in: a constitutional republic where individuals have unalienable rights, or an unlimited democracy where individuals have only privileges the fickle majority grants them.

8 posted on 10/22/2002 1:50:49 PM PDT by freeeee
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To: Joe Brower
Seems to me the 10th applies. As the Constitution is actually defining the rights of government, not its citizens, I don't see anything that lets them regulate guns. In fact, the 2nd is fairly clear with its "shall not" language, meaning any federal tampering with guns is manifestly circumspect. So, maybe individual states could constitutionally maintain a database, but I don't see how the Feds could.
9 posted on 10/22/2002 1:51:09 PM PDT by Mr. Bird
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To: dd5339
Depends on the size for the fringe being inned.
10 posted on 10/22/2002 1:51:33 PM PDT by Doctor Stochastic
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To: dd5339
A database has the potential to be abused therefore it is in itself an infringment of the right to own a firearm.

Can you cite specific Supreme Court cases that cite the potential for abuse, as opposed to actual abuse, as the reason for overturning a law on 4th Amendment grounds? (I think I've heard of some, once again, I'm trying to facilitate the debate here by playing a well-meaning gun-control proponent).

11 posted on 10/22/2002 1:51:49 PM PDT by dirtboy
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To: dd5339
"Shall not be infringed" is powerful language. Up there with "Congress shall make no law..."

Requiring paperwork, background checks, and disclosure of private information are all infringements.
12 posted on 10/22/2002 1:52:34 PM PDT by Atlas Sneezed
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To: Beelzebubba
If your friend doubts any of this, look at Britain.

Once again, at what point is the threshold crossed where the potential for abuse becomes grounds for striking down a law?

13 posted on 10/22/2002 1:52:45 PM PDT by dirtboy
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To: Joe Brower
I think the legal concept that makes gun registration unconstitutional is "prior restraint."
14 posted on 10/22/2002 1:53:30 PM PDT by E. Pluribus Unum
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To: Joe Brower
It falls under Section 103(i) in the Brady Law:

(i) PROHIBITION RELATING TO ESTABLISHMENT OF REGISTRATION SYSTEMS WITH RESPECT TO FIREARMS- No department, agency, officer, or employee of the United States may--

(1) require that any record or portion thereof generated by the system established under this section be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or political subdivision thereof; or

(2) use the system established under this section to establish any system for the registration of firearms, firearm owners, or firearm transactions or dispositions, except with respect to persons, prohibited by section 922 (g) or (n) of title 18, United States Code or State law, from receiving a firearm.


15 posted on 10/22/2002 1:53:39 PM PDT by ravingnutter
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To: Joe Brower
"....the right to keep and bear arms shall not be infringed." Infringe means to encroach. You cannot even encroach on that right. Any thing which restricts in any manner the right to keep and bear arms is Unconstitutional. Now you must understand that therefore any federal firearms laws are unconstitutional. This Government has not followed the constitution since the time of Lincoln and perhaps before its just that there encroachment upon our lives is ever increasing but like the proverbial frog, since the heat was turned up relatively slowly, we forgot to jump out of the now boiling water.

Ravenstar
16 posted on 10/22/2002 1:55:39 PM PDT by Ravenstar
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To: dirtboy
Your car( I think anyway) is a state registration. Regardless of precedents Federal intrusions into personal information in most cases are wrong( the exceptions are for criminals convicted of federal crimes, immigrants, and people with Federal jobs). Besides the 10th amendment specifically limits the Fedgov to its delegated powers( not that the government really cares and SCOTUS has restricted the ability to challenge laws via the 10th amendment to state Governments perhaps they never read the words "the states or the people")
17 posted on 10/22/2002 1:56:07 PM PDT by weikel
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To: Ravenstar
Lincoln wasn't so bad it was Woodrow Wilson who really ruined things( and Wilson was a neoconfederate btw).
18 posted on 10/22/2002 1:57:12 PM PDT by weikel
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To: Joe Brower
As others have said, the Tenth Amendment. The Second is not even necessary to address the question from a Federal standpoint -- the reality is that while the Federal government may not be explicitly forbidden to register guns, it is also never authorized to do so. The language of the Tenth makes it clear that Constitutional silence regarding any power means that power is prohibited to the Federal gov't.

The States are another issue, however.

19 posted on 10/22/2002 1:57:26 PM PDT by Sloth
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To: ravingnutter
(1) require that any record or portion thereof generated by the system established under this section be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or political subdivision thereof;

Nice find. However, that is law, and pertainent only to background check data. Are there any Supreme Court cases that determine a threshhold for potential abuse of a right, as opposed to actual abuse, for grounds to declare an action unconstitutional?

20 posted on 10/22/2002 1:57:55 PM PDT by dirtboy
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