Is a National Firearms Registry Unconstitutional?

Myself ^ | 10/22/2002 | Myself

[tpaine]

  Both prior restraint and due process are violated by registration infringments upon the 2nd. This is from the USSC, Poe v Ullman decision:

        In its discussion of the scope of "liberty" protected by the Due Process Clause of the Fourteenth Amendment the Court stated:

Neither the Bill of Rights nor the specific practices of the States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects.
See U.S. Const., Amend. 9. As the second Justice Harlan recognized:

     "[T]he full scope of the liberty guaranteed by the Due Process Clause `cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This `liberty´ is not a series of isolated points pricked out in terms of the taking of property;
the freedom of speech, press, and religion;
the right to keep and bear arms;
the freedom from unreasonable searches and seizures; and so on.  It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment."

Poe v. Ullman, supra, 367 U.S. at 543, 81 S.Ct., at 1777

[Congressman Billybob]

As a lawyer who practices law in the US Supreme Court, I would agree that any "National Ballistic Registry" would violate the 2nd Amendment. However, the US Supreme Court has so far, out of bias against gun rights, refused to enforce the 2nd Amendment against violation by either state or federal governments.

Rather than relying on the chancy possibility that the courts will, finally, enforce the 2nd Amendment, the better argument right now is the practical one. There is no such thing as ballistic "fingerprinting." Machine-produced guns can have identical matches to each other, up to thousands of them. Also, gun "fingerprints" change with time and use. Also, gun users can deliberately alter the "fingerprints" of their guns.

Lastly, by changing the barrel on a gun, a criminal can "borrow" the fingerprint of another gun, commit a crime, then replace the barrel. At that point, the ballistic "fingerprint" of his gun becomes an alibi, rather than a means of proving commission of a crime. Humans cannot "borrow" someone else's fingerprints.

The only tecyhnical study of the feasability and accuracy of ballistic "fingerprinting" was published by the Bureau of Forensic Services of the California Department of Justice, dated 5 October, 2002. The Washington Times reported on this, yesterday. The link to this report was posted on FreeRepublic the day before that.

In supporting a national data base of ballistic "fingerprints," California Attorney General Bill Lockyear lied about this report from his own Department. He said the subject was "under study." It is not. The study is complete, and it concludes that ballistic "fingerprinting" will not work, even if restricted just to California, just to new handguns, just to automatics, and just to calibers of .25 and above.

The Report also concludes that the failures of such a system increase with the attempted size of the data base. The more guns are included, the greater the failure rate in making matches -- which is not the case with human fingerprinting.

Any government proposal in any area that would fail on practical grounds, does not reach the issue of whether it would be constitutional. I would strongly suggest that you tell your correspondent to read the California Report, and get the facts on why ballistic "fingerprints" are NOT the same as human fingerprints -- because they naturally change over time and use, and can be deliberately changed at will.

I also suggest that you always put quotes around the word "fingerprints" when used with respect to guns. That will remind any reader that the basic idea that humans and guns are the same in this regard is NOT true. It is this point, especially with the general public, that will reveal the dishonesty of the proponents of ballistic "fingerprinting." It is worth noting that neither Maryland nor New York, the two states who have established such programs, have EVER solved a single crime through use of their (very expensive) data bases.

Hope this is helpful. Feel free to use this description where and how you choose. Please attach my real-world name to it: John Armor, Esq., and my email address: congressmanbillybob@earthlink.net

Congressman Billybob

This column is based on the fine work by FReepers in a thread on FR. Click for "Ballistics and Bullsh*t"

Click for "Til Death Do Us Part."

Click for "to Restore Trust in America"

[DoughtyOne]

Joe, it's the same old arguement.  If you take every gun from law abiding citizens, only criminals will have guns.  If you set up a gun database and all law abiding citizens comply, guess who won't comply.  The idea that a national gun registry is going to stop gun violence is laughable.  Criminals WILL NOT COMPLY.  What part of "WILL NOT COMPLY" do folks not understand?  Once registered, criminals can alter the barrels.  This is an idea that is impossible to implement in any meaningful manner.

We have so many gun laws on the books now, that it's nearly impossible to gain "permission" to defend yourself in public.  Still gun deaths transpire.  Will one more gun law stop this?  Will fifty more?  Will ten thousand more?

Not the US Constitution, not the federal government, not any other document, not any other entity can abridge my right to self-protection.  God alone says I have a right to be secure in my person.  Everyone else is going to have to come to grips with that reality.

Either I live in a nation that believes in individual rights, or I live in a nation that is excessively oppresive and requires I be defenseless in the face of cime and anyone who wishes to harm my family or myself.  Which is it?

It's 1:30 a.m.  I hear a crashing through the back door to my home.  I can hear several persons whispering as they ransack my home.  I hear them coming up the stairs to the bedroom.  Are they going to find me unarmed?  If you think I'm waiting for a ruling from the Supreme Court, think again.

Why is it unconstitutional?  Because it is unreasonable to expect it to provide additional safety from gun violence.  Because it is designed to apply only to those who will abide by the law.  Because it provides the government with a database on all weapons in the posession of legal gun owners, and yet provides no information on illegal gun owners.  It is but one more step in the direction of gun confiscation, and the ultimate elimination of private gun rights, and therefore individual's right to self-protection from criminal elements.

There will always be criminals.  I'm not so sure about gun rights.  F-anyone who thinks it's a good idea to provide the federal government with a complete list of every law abiding citizen's firearms, even though that list will be unable to accomplish even one LEGITIMATE goal it was promoted to fulfill.  This list would therefore be good for only one purpose.  And it's the purpose we'll be promised was not at all it's original intent.  Capital B.S.  No way Josea!

[scalia_#1]

Yikes. We conservatives don't really want to lend support to cases like Poe v. Ullman, do we?

[eskimo]

The question is, are there any Constitutional restrictions on a federal gun registry?

Well let's reason this out.

The 4th Amendament:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The 10th Amendment:

"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."

A better question would be "what gives the federal government the right to regulate any 'affects' of the people?"

[Aegedius]

require cars in residential areas to be registered

Only if they are in view. Then they can be called an eyesore. But, if it is in your garage, you don't have to register. A number of antique cars are kept in buildings, unregistered. Are race cars registered? I think not.

[Joe Brower]

Holy smokes, folks. I am overwhelmed by you all taking the time and effort to share with me your advice, knowledge, references and points of view. Keep 'em coming.

I'd say I'm going to have enough ammo to bury this fellow so deep he's not going to know whether to sh!t or go blind.

Thanks! You folks are awesome!

[45Auto]

There has been enough evidence discussed here that convinces me that registration is indeed unconstitutional not only based on the 2nd, but also on the 10th and 14th and the 4th. There also seems to be enough precedent to point to to bolster the case. The real question comes down to whether or not the US Congress will pass such a law anyway; they really don't care much about the Constitutionality of their work. As for the states, if California can steal enough money from the taxpayers, ol' Bill Lockyer and his socialist cohorts will run to the state house with a fresh anti-freedom, victim disarmament bill on January 3, 2003. So-called "gun control" is merely part of their agenda - which is to destroy the Republic.

[vannrox]

.

OK. Try this...

Your editor must actually understand the difference between a "Right" and a "Priviledge". This difference is defined in the "Preamble to the Bill of Rights".

Rights are attributes that we humans have been born with. These are elements that "God" (according to our founders) provided man to survive in this world. No one, except GOD, can take away a persons "Rights".

According to the "Preamble to the Constution", a Priviledge is what is granted to a citizen by the government that they create.

OK, so far, a "Right" is defined by the Preamble to the Bill of Rights. And, a "Priviledge" is defined by the Preamble to the Constitution. The differences are quite clear and open and plain.

Also defined in the "Preamble ot the Bill of Rights" is the statement that governments and other works of man may become corrupt. Therefore, it is the will of God that man use his own rights to prevent the government from over stepping their authority. According to the "Preamble to the Bill of Rights", the government has become evil and dangerous whenever they restrict the rights given by God to Man.

So what is the 1st Amendment? That is a Right that God has provided man to think and believe and speak and worship and write freely without the restrictions placed on them by a government.

The 2nd Amendment? God has provided the Right of self defense. This right also can be used against the government. It says so in the Preamble.

The entire Bill of Rights clearly define what are rights and what are not.

---

PUNCH LINE:
An attribute that is a signifant part of human nature cannot be regulated by a government. For we then give away part of our very being in doing so. Any aspect of our rights should never be touched by the rules of man. The words "shall not be infringed" has meaning and validity.

No emergency or human construct can overright what is natures gift to mankind.

I personally believe that many of the anti-gunners just simply do not know American Constitutional History and Theory. Nor do they want to know. If they did, then they would be quite surprised in their simple view of it.

Now, ballastic fingerprinting and registry are part of the agreement that Smith and Wesson made with the ATF. It caused the company to go bankrupt and it is still struggling because they have been unable to exit from the agreement.


.

[The Old Hoosier]

It would not violate 2a, but it is definitely very suspect under 4a, and could potentially jeopardize your 2a rights in the future.

It is also just plain bad policy. Ballistic fingerprinting costs millions and does not deliver results. In Maryland, one of the two states to adopt it, it has led to exactly zero murders solved. I don't know anything about stats for New York.

If you want to commit a murder, it's just too easy to modify a gun and make the whole system worthless, or to buy a stolen gun or a smuggled gun that will not be fingerprinted. In the meantime, you're spending millions of dollars to keep the system going and probably not getting any benefit.

[tpaine]

I'll take my constitutional support for gun rights anywhere I can get it.

Knee jerk 'conservatism' on this forum is disguising a lot of majority rules statism. -- Many here think that states like CA can 'regulate' the RKBA's virtually out of existence.
-- Basic rights can not be prohibited by ANY level of government.

[Sam Cree]

"how, from a 4th Amendment viewpoint, is registering your car different than registering your gun?"

It may not be that different. How would the citizens have reacted, back in our early days, if local government had tried registering all horses, wagons, coaches and buggies, charging money for each and giving everyone a tag with a number, to be attached at all times to their horses or vehicles.

[RightWhale]

No right is absolute.

That the Feds shall not infringe on the Right to Bear Arms is absolute.

Also, if that Amendment is compromised, the rest of the Constitution will follow.

[tpaine]

Rationalizing our right to bear arms
Address:http://www.freerepublic.com/focus/news/772665/posts

Here's some examples of the rationalization that the constitution would allow amendments to repeal the 2nd.

[scalia_#1]

I'll take my constitutional support for gun rights anywhere I can get it.

There's nothing "knee-jerk" about supporting the Second Amendment based on the Amendment's text and its intent, and the constitutional structure. I can't follow you, however, into the quicksand of substantive due process, which is precisely what Poe stands for. Substantive due process: the idea that constitutional protections can be extended to anything that a majority of justices are willing to slap with a "LIBERTY" tag. It is a concept that defies a textual interpretation of the Consitution, and therefore defies the very purpose of a written constitution. It replaces the solid foundation of judicial review with the nascent tyranny of judicial rule. It is the epicenter of our current constitutional schism, and from its extra-constitutional abyss has arisen such notable monstrosities as Lochner, Griswold, and Roe. The right to keep and bear arms is too important to be thrown to the whims of courts, and too treasured to be slapped with the appellation of "right created by judge."

[Noumenon]

My response is that it's irrelevant. When it comes to the means to protect my person and my family from tyranny, what I own is nobody's business but my own. Requests to submit to registration of any kind will be ignored. Atempts to force the issue will be resisted with every means at my disposal. It's one of those line-in-the-sand, first principles things.

I doubt that they'll understand.

[Jimmy Valentine]

you are right. Also the first, fifth tenth and the fourteenth.

[vigilence]

Assuming we lose the constitutional arguement how would such a system even work? If someone was killed by a 9mm pistol, for instance, do the police begin confiscating all 9mm pistols to see which one matches up (again, assuming this were possible)? And doesn't that then effectively disarm the populice since we all know how slowly the government works. Or, maybe, it would be a boon for gun manufacturers because in order to be sure you had self protection in the house you would have to own multiple calibers since at any given time most would be "out for comparison". Or it could lead to a lot of exotic weaponry that by it's sheer rareity would exclude it from comparison such as a necked down .223 to .17 or a Browning .50!! What a fiasco.

[vigilence]

Assuming we lose the constitutional arguement how would such a system even work? If someone was killed by a 9mm pistol, for instance, do the police begin confiscating all 9mm pistols to see which one matches up (again, assuming this were possible)? And doesn't that then effectively disarm the populice since we all know how slowly the government works. Or, maybe, it would be a boon for gun manufacturers because in order to be sure you had self protection in the house you would have to own multiple calibers since at any given time most would be "out for comparison". Or it could lead to a lot of exotic weaponry that by it's sheer rareity would exclude it from comparison such as a necked down .223 to .17 or a Browning .50!! What a fiasco.

[Still Thinking]

I don't think it's unconstitutional on it's merits. Actual practice is different. Governments in general, being made up of hordes of the incompetent and significant numbers of the power hungry, invariably find a way to misuse almost any power they gain, whether it be social, financial, or legal.

The RKBA is also the lynchpin guaranteeing (or at least encouraging) government's respect for the other rights. This is one of the few cases where use of liberals' vaunted "precautionary principle" is wise. The only amount of power KNOWN TO BE SAFE in freedom grabbers' hands is...none. The more hamstrung they are for funds as well as legal power, the more of their time they will be forced to spend fighting these limitations, as opposed to hatching rights-infringing schemes.