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
I'm mindful of your argument for separation of powers and specifically that justices do not have the power to make law.
However, I am also mindful of the fact that many of our founding fathers (I think James Madison for one) were against including a bill of rights in our constitution. They feared that government would decide that only those rights included in the "Bill of Rights" were protected from government. Their fears have come to pass, IMO.
Once again, they are the final arbiter, for better (seldom) or for worse (far too often) as to what is "Constitutional" - you are trying to answer the question from a logic, moral and intellectual position, I am simply trying to find some SCOTUS precedent in a realm nearly void of those qualities.
Just FYI, Congress only has the power to tax and spend for the general welfare, not legislate for the general welfare. Things like "general welfare" are delegated to the states under their so-called "police power" to regulate for health, safety, morals, etc.
I agree, though, that the feds have been given free reign to do darn near anything under the guise of "commerce," and we have an intellectually corrupt federal judiciary who is happy to give the feds whatever powers they seek under the Commerce Clause.
Ooh, I like that...for example, you can't tell the press, "You can't publish that, it's slanderous." Press has the right (limited in very few cases, like publishing the position of ships during wartime, for obvious reasons) to publish what it wants, and be liable for abuse of that right. Requiring gun owners to qualify and register is a restraint on the right to own a weapon. We don't make the press run their articles through a censor before publication, and we should not make gun owners put their names on a database "just in case" they might misuse a gun.
How am I doin' here?
There is no right to vote in the Constitution. The right to vote is based on Equal Protection arguments, but you will not find in the Constitution any "right" to vote. Also, we have a Constitutional right to travel interstate, but we do not have a Constitutional right to travel abroad. If we did, we would not need a passport.
Presumably, to be well-ordered, the militia would have to keep its own register of members.
The actual term is "well-regulated," and "regulated" means "trained" in the parlance of the day.
Requiring a permit is merely a time, place, and manner restriction, and may not be exercised in an arbitrary and capricious manner. Content may not be regulated. (This is why the Nazis were allowed to march in Skokie). Because free speech is a fundamental right, the regulation must be narrowly tailored to prevent the type of harm that may come from the speech-related activity, and the regulation must be no broader than necessary. This is the "strict scrutiny" standard that is used by Courts to evaluate whether or not a restriction on a fundamental right is overbroad.
Using this standard, I can't think of any harm that would be prevented by a national gun registry, as a registry will prevent no one from misusing their gun.
Thoughts?
I think this is a very good argument!
No. Why? Because then we could register jesse jackson's, al sharpton's, sarah brady's, etc. mouths. Their mouths have been proven to be more deadly than firearms.
5.56mm
You need my essay on the meaning of the word "infringe." A national gun registry is an "infringement" on the citizens right to keep and bear arms. It is the historical precursor to and the enabler of confiscation.
I don't see a connection to the 4th amm. in my answer but if were using care registration analogy then this is the difference.
You only have to register you car if you will be driving it on public roads and you do not if you are driving only on your property or private property.
Therefore the gun registration analogy ony fits if you are carrying in public not owning one and keeping it at home.
Sounds dead-on to me. Good job.
tpaine does a pretty good job in post #41
Local law--not state or federal. Local government can do lots of things that state governments and especially the Federal government are forbidden to do. If your local town decided it wanted to implement a firearms registry, it is perfectly free to do so, however, as an instrument preliminary to total firearms confiscation, it is useless, as such confiscation would have to be nationwide have any effect.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.