Is a National Firearms Registry Unconstitutional?

Myself ^ | 10/22/2002 | Myself

[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

[Aegedius]

is registering your car different than registering your gun?

You are not required to register a car unless you plan to put it on a public road.

[dirtboy]

Besides the 10th amendment specifically limits the Fedgov to its delegated powers

The 10th Amendment, if not dead, is basically on life support. I agree that the Federalist movement on SCOTUS is citing it more often. But I doubt they will act in any way to restore it to its original meaning. My heart agrees with you. But recent history makes me say this won't work in modern ConLaw.

[dirtboy]

You are not required to register a car unless you plan to put it on a public road.

Not entirely true. I believe some municipalities require cars in residential areas to be registered or removed after a certain time limit. So there are local-level laws that can override that statement.

[dirtboy]

As others have said, the Tenth Amendment.

Problem is, the Tenth is basically moribund. I don't like that, you don't like that, but SCOTUS says otherwise, and they tend to carry more weight on the subject than an FR debate. And, under current interpretation of the Commerce Clause (once again, I dont' agree with it), a commercial gun sale is subject to federal regulation, which could include ballistic fingerprinting. Notice that the gun-grabbers are initially talking only about this requirement for new guns being sold.

[E. Pluribus Unum]

http://www.webcatt.net/2ndAmend_SIG/armed-m/october_97/armedm_1097.html

C. Prior restraints on rights are unconstitutional

1. Second Amendment protects an individual right

Report by the U.S. Senate Subcommittee on the Constitution (1982)-- "The conclusion is thus inescapable that the history, concept, and wording of the second amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half-century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner." (40)

Supreme Court admits "the people" in the Second Amendment are the same "people" as in the rest of the Bill of Rights -- In U.S. v. Verdugo- Urquidez the Court stated that "'the people' seems to have been a term of art employed in select parts of the Constitution. . . . [and] it suggests that 'the people' protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community." (41)

2. Courts agree that rights should be free from prior restraints

Near v. Minnesota -- In this case, the Supreme Court stated that government officials should punish the abuse of a right and not place prior restraints on the exercise of the right. (42)

What about yelling "Fire" in a crowded theater? -- The courts have stated that one cannot use his "freedom of speech" to yell "Fire" in a crowded theater. And yet, no one argues that officials should gag everyone who goes into the theater, thus placing a prior restraint on movie-goers. The proper response is to punish the person who does yell "Fire." Likewise, citizens should not be "gagged" before exercising their Second Amendment rights, rather they should be punished if they abuse that right.

[DonQ]

I don't believe a registry is unconstitutional. We have to register for other constitutional rights; e.g., we have to register to vote, we have to go through the passport application process to exercise our right to travel, etc. A registry does not, itself, "infringe" the right to be part of a well ordered militia. Presumably, to be well-ordered, the militia would have to keep its own register of members.

[Chemist_Geek]

I heard once of a "strict scrutiny" standard...

[E. Pluribus Unum]

D. Background checks can (and do) lead to gun registration

Justice Department report (1989) -- "Any system that requires a criminal history record check prior to purchase of a firearm creates the potential for the automated tracking of individuals who seek to purchase firearms." (43)

Justice Department initiates registration (1994). The Justice Department gave a grant to the city of Pittsburgh and Carnegie Mellon University to create a sophisticated national gun registry using data compiled from states' background check programs. (44)

More gun owner registration (1996) -- A new computer software distributed by the Justice Department allows police officials to easily (and unlawfully) register the names and addresses of gun buyers. This software -- known as FIST -- also keeps information such as the type of gun purchased, the make, model and caliber, the date of purchase, etc.45 The instant background check will be a key component in registering this information in the computer software. (46)

California -- State officials have used the state background check -- required during the waiting period -- to compile an illegal registry of handgun owners. These lists have been compiled without any statutory authority to do so. (47)

Nationwide. Highly acclaimed civil rights attorney, researcher and author, David Kopel, has noted several states where either registration lists have been illegally compiled from background checks or where such registration lists have been abused by officials. (48)

* BATF -- During the late 1980's and early 1990's, there were reports that the BATF (Bureau of Alcohol, Tobacco and Firearms) was compiling an illegal gun owner list by going to dealers' stores and copying the 4473 forms which are kept there.(49) It would appear that the BATF violated federal law by copying these forms, which contain the name and addresses of gun buyers.

Problems with gun registration and licensing

A. Licensing or registration can lead to confiscation of firearms

Step One: Registration -- In the mid-1960's officials in New York City began register- ing long guns. They promised they would never use such lists to take away firearms from honest citizens. But in 1991, the city banned (and soon began confiscating) many of those very guns. (50)

Step Two: Confiscation -- In 1992, a New York city paper reported that, "Police raided the home of a Staten Island man who refused to comply with the city's tough ban on assault weapons, and seized an arsenal of firearms. . . Spot checks are planned [for other homes]." (51)

Foreign Countries -- Gun registration has led to confiscation in several countries, including Greece, Ireland, Jamaica and Bermuda. (52) And in an exhaustive study on this subject, Jews for the Preservation of Firearms Ownership has researched and translated several gun control laws from foreign countries. Their publication, Lethal Laws: "Gun Control" is the Key to Genocide documents how gun control (and confiscation) has preceded the slaughter and genocide of millions of people in Turkey, the Soviet Union, Germany, China, Cambodia and others. (53)

B. People in imminent danger can die waiting for a firearms license

In 1983, Igor Hutorsky was murdered by two burglars who broke into his Brooklyn furniture store. The tragedy is that some time before the murder his business partner had applied for permission to keep a handgun at the store. Even four months after the murder, the former partner had still not heard from the police about the status of his gun permit. (54)

[dirtboy]

Nice work. Now reconcile that with the fact it is legal to require a protest group to obtain a permit prior to a demonstration. The FR DC Chapter gets them all the time. So the courts have allowed regulation of 1st A rights.

[E. Pluribus Unum]

Now reconcile that with the fact it is legal to require a protest group to obtain a permit prior to a demonstration.

The Supreme Court has made lots of unconstitutional rulings. That happens to be one of them.

[eskimo]

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?

Can the "devil's advocate" tell us all what federal law requires us to register our car?

[GovernmentShrinker]

It is unconstitutional, as it defeats the clear intent of those who authored and voted to pass the Bill of Rights. The clear intent was for the citizens to be equipped to defeat the government (in whole or in part), should the government become tyrannical and trample on the citizens basic rights. Obviously, a government-imposed requirement (with penalties for non-compliance) that each citizen who possesses an efficient tool for accomplishing the intended mission, register it and the citizen's address with the government, defeats the purpose of the guaranteed right to possess the tool, since any government or portion thereof which wished to seriously trample on the rights of the citizens would first use the registry to eliminate the citizens' means of resistance.

The Bill of Rights is concise, and common sense is needed to interpret and apply it. Would it be constitutional for the government to require anyone possessing the means of widely distributing "speech" (printing press, copier, computer equipment, etc.) to register these implements in a government registry upon acquisition?

[scalia_#1]

"So gun registration would be regulation of a right, and possibly would pass Constitutional muster . . . ."

I agree with your position that, if the Second Amendment confers an individual right, then that right can be subject to limitations in the same fashion that First or Fourth Amendment rights can be limited. There is nothing any more talismanic about the words "...shall not be infringed" than there is with the words "Congress shall make no law...." I don't agree with you, however, that a national database of guns & gun owners would pass constitution muster. Many content-neutral laws, such a regulations of parade permits, to take your example, have been upheld by the SCOTUS as not infringing on First Amendment protections. However, even facially content-neutral laws have been struck down by the Court if they can be demonstrated to have a chilling effect on the exercise of the relevant right. I think the most apposite case relating to a gun database is NAACP v. Alabama ex rel. Patterson(I'll hunt the cite if you want me to), wherein the Court struck down Alabama's law that associations be required to turn over lists of their memberships to the government, because the very collection of such information could dissuade individuals from exercising their freedom of association. I don't see how a national database would be much different. The chilling effect on the exercise of the Second Amendment right would be just as significant, and just as unconstitutional.

[dirtboy]

Can the "devil's advocate" tell us all what federal law requires us to register our car?

Under the 14th Amendment, the Bill of Rights applies to state law. If there were any BoR problems with car registration by states, it would be just as relevant as BoR problems with national gun registration.

The question is, are there any Constitutional restrictions on a federal gun registry? That's a pretty high standard. If the standards were that laws cound not be a bad idea and not posess a high potential for abuse, very few federal laws would pass muster by SCOTUS. We here at FR tend to be constitutional literalists. Supreme Court judges are more akin to Humpty Dumpty - words mean what they want them to mean, so if we want to prove that a national gun registry is unconstitutional, we have to point to specific SCOTUS rulings regarding the potential for abuse, rather than talk in concrete BoR statements. It sucks, but that's how things work nowadays.

[Grut]

Try casting your rebuttal in terms of a 'non-infringing' regulation of the free press; i.e., the government keeping a mandatory list of who's a journalist and a record of what they've written, with the journalist being liable to punishment if he fails to keep his file up to date. Ask your opponent if he'd be comfortable asserting that such a practice would be Constitutional.

[dirtboy]

Good addition. That's what I looking for - specific cites to either SCOTUS or Federal Circuit/Appeals Court rulings to where a government action was determined to either chill the free exercise of rights to an unacceptable level, or the action had such a high potential for abuse that the law was struck down without any actual abuse happening. It isn't sufficient nowadays to yell out "4th Amendment!" or "10th Amendment!" and call it a day.

[dirtboy]

It is unconstitutional, as it defeats the clear intent of those who authored and voted to pass the Bill of Rights.

I'd love to agree with you. Unfortunately, three-quarters (maybe more) of the current federal government fails that test, yet SCOTUS has only occasionally nibbled at the excesses. We gotta do better than that.

Would it be constitutional for the government to require anyone possessing the means of widely distributing "speech" (printing press, copier, computer equipment, etc.) to register these implements in a government registry upon acquisition?

Local governments can require permits for demonstrations. They also videotape demostrations - talk about a potential chilling effect.

[dirtboy]

The Supreme Court has made lots of unconstitutional rulings. That happens to be one of them.

Hate to tell you this, but they got a full house to our pair of duces. If they say it's constitutional, the only people left who can say otherwise are jury members (and I did that once on a jury panel).

[philman_36]

No right is absolute.
Since it is based on a faulty premise from the start...
This sentiment, to me anyway, indicates that the person believes the government is the giver of rights in the first place. If government is the giver then they can also be the taker.

[E. Pluribus Unum]

Hate to tell you this, but they got a full house to our pair of duces.

The title of this thread is "Is a National Firearms Registry Unconstitutional?" That is the question I was answering. I was not answering the question "Is the United States Supreme Court still stacked with leftist activists as it has been since the time of Franklin Delana Roosevelt."