Is a National Firearms Registry Unconstitutional?

Myself ^ | 10/22/2002 | Myself

[Joe Brower]

Folks;

I have been honored and humbled by the wealth of wisom that you have taken the time to share with me. Your responses were too numerous to thank everyone individually, but let me just say you all came through for me in a manner more than I could have hoped. I have copied below the mini-essay I sent the newspaper editor I've been "conversing" with, for your perusal. I hope I've done you all, and the cause, justice.

Thanks again. Let Freedom Ring!

Joe Brower

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Is a National Firearms Registry Unconstitutional?

Tom;

Yes, you're communicating with a reasonable person. You surely know this already or you wouldn't be bothering to email me. I'm assuming the same, despite your unfortunate attempts to put words in my mouth, and in the interest of "honest communication", will overlook your jabs and get to your valid questions. I didn't intend to write a novel here, but once I began, the evidence against the legality of "ballistic fingerprinting" turned out to be quite large. It has proven to be a worthy exercise., and you wanted an "honest answer", so here it is.

Your primary question, which can be summarized as "Is a national firearms registry unconstitutional", is a good one. There are a variety of ways the constitutional illegality of this can be pointed out, but perhaps the simplest way to demonstrate the blatant injustice of it's nature is to put it in the context of something probably quite dear to you personally. So, let's start with the…

First Amendment:
Ask yourself the question: How would you feel about having to register each and every book you own, every pen and pencil, every typewriter, every fax machine, every word processor, every printing press? How would you like to have to get a federal license in order to be a journalist? Wouldn't official government censure of journalists be contrary to the spirit of the first amendment? I think so. Do not say that they are not comparable -- they most certainly are. This alone makes it quite plain that, as soon as you take a fundamental right and license it, and compulsory registration is de facto licensing, a "right" then becomes a mere privilege, which can then be arbitrarily revoked at bureaucratic whim. You stated that "no right is absolute". How do you react, however, when the right in question is one that you personally hold dear?

Consider this, a restating of the first amendment in the manner of the first: "A well-educated electorate being necessary to the preservation of a free society, the right of the people to read and compose books shall not be infringed." What do you have to say about this analogue?

Regulations, licenses, permits, and the like tend to have a detrimental effect on the rights they impose upon. The Supreme Court has ruled in the past that 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. An example of such legal precedent in this regard relating to a firearms database would be NAACP v. Alabama ex rel. Patterson.

Second Amendment:
It's interesting to note that, of all the amendments to the Constitution, the second amendment is the one that specifically states "shall not be infringed", and is, perhaps unsurprisingly, the most infringed upon. This clause in the 2nd amendment alone could potentially be utilized to render it unconstitutional, depending on what judge was to review it. Any honest man could simply look up the word "infringe" in the dictionary and go from there, but unfortunately, honest men aren't that easy to find. Two hundred-plus years has spawned over 20,000 laws passed pertaining to this fundamental human right, the first law of nature -- the right to self-defense. Proof positive of the power of incremental erosion, aided and abetted by public apathy.

Fourth Amendment:
The fourth amendment could also be construed to be a prohibitive factor against such a registry, since such a registry goes against the standard of American law, which is presumption of innocence, thereby rendering such an invasion of privacy unwarranted and an over-reaching of federal authority. The only time the government/state has the right to look at your property, be it guns or whatever, is when you're a suspect in a crime that utilized one. Otherwise, it's much more preferable that the government respect the rights of the people, not spend their time finding creative ways to usurp them.

Fifth Amendment:
The fifth amendment could also come into play, since registration of firearms could be interpreted in the right circumstances to be in violation of one's right against self-incrimination. There are also legal precedents at the Supreme Court level regarding this, including a case specifically related to firearms: Haynes v. U.S. (309 U.S. 85 (1968)).

Tenth Amendment:
The tenth amendment would also serve as a prohibition against a national gun registry, since there is nothing specifically enumerated in the Constitution that allows the federal government to institute such a program. The tenth might allow the individual states to do such a thing, however, should they choose to (and a couple have, with little positive result), although powerful and substantive arguments could be made against this principle on the basis of the Fourteenth Amendment. But the federal government is specifically prohibited. This also negates your erroneous comparison to car registration, since vehicle licenses are specific to state, not federal, authority.

U.S. Constitution, Article I, Section 9
There is also Article I, Section 9 of the U.S. Constitution, which states that no ex post facto laws can be passed. This would prohibit any "fingerprinting" of the over 250 million firearms that are already in existence in the United States. That's quite a selection of already-available weapons for the criminal element to choose from.

Prior Restraint
Another legal concept that could be brought to bear against the legality of such a national registry is that of "prior restraint". One precedent here would be the Supreme Court case Near sv. Minnesota. This goes back to my statements regarding the fourth amendment. When government intrudes into people's lives without any existence of wrongdoing, it shows that that government does not trust it's citizenry. What right, then, do they have to demand that they themselves be trusted? That's a most reasonable question. What's your answer?

Well, there you have it -- a variety of angles that could be utilized to negate the legality of a "ballistic fingerprinting database". This is by no means complete, either; there are many other ramifications and examples of unintended consequences that spring from this whole misguided concept, but I think you get the idea.

By the way, your comparison to voters needing to be registered is an incorrect one: Voting is, in its definition, one per person per balloting. Your right to vote is damaged if I vote 20 times. Your ownership of 20 guns does not effect my ownership of one, or of 100. Thus there is an actual need met by monitoring the balloting of the people. Without this monitoring, the virtue of the balloting is undermined. However, your ownership of firearms is not undermined by my firearms not being monitored.

Remember, the Constitution is a (supposedly) narrow and strictly-defined list of what the federal government is allowed to do. Over time, things like the "commerce clause" have been abused to the point where it has become the "anything goes" clause. Again, it's terrible to behold how two hundred years can nibble our liberties to death by duck bites. Conversely, however, the Bill of Rights is a list of pre-existing, inalienable rights that, unlike what the Constitution allows the federal government, is open-ended, and are not something the government gives the people; but rather they are things the government has been expressly told not to interfere with. Indeed, "We the People" would still possess these enumerated rights even if the government threw the whole Bill of Rights in the incinerator tomorrow. This is a fundamental point that too many people are not taught and do not grasp any longer, but this does not change the truth of it. The Constitution is a contract, or more accurately, a trust. What other contracts are you willing to engage in where you give the other party unilateral, and apparently unlimited power to add conditions and restrictions?

"Ballistic Fingerprinting" is a not the goal
In reality, the whole concept of "ballistic fingerprinting" is a ruse, and no one knows this more than it's loudest proponents. At best, it's just another "feel good" proposition that will only affect law-abiding citizens, while the criminal element will ignore it like they already do the 20,000-plus laws already on the books. In fact, this concept will result in criminals seeking to steal firearms, since this will provide them in instant and government-funded means of throwing law enforcement off the trail, just as readily as picking up empty casings at the local firing range and leaving them at the crime scene would.

The fact is that, in five minutes flat, anyone with the most rudimentary knowledge of firearms can alter the bore, chamber, bolt face and firing pin of any firearm with tools found in any garage and render such a "fingerprint" useless. I can personally prove this at will. The state of California just completed a study of the concept earlier this year and deemed it unworkable. The whole term "fingerprint" is a misnomer, since true fingerprints (like those that grow on people) cannot be altered. As far as how effective such a program would be in actually solving crime, well, the state of Maryland has actually had exactly such a program in effect for two years now -- total crimes solved: Zero. That's a fact that you can personally verify easily enough. How much more proof do you need?

"Ballistic fingerprinting" is just a facade for what is truly desired by it's advocates: a national gun registry. A list of every gun owner in the United States, where they live, what they look like, and what they possess. Hardly a concept befitting a nation that professes to be "the land of the free". A blatant and unjust invasion of privacy that states bluntly an abject distrust and vote of no confidence in it's citizenry, and further drives a wedge between government and "The People" it supposedly serves. Is this truly what you want? As I pointed out before, a quick study of past events makes it plain: Every place throughout the world, America included, which has instituted such a registry has always, yes always, ended up using those lists for confiscation. Again, this is readily verifiable, but if you have trouble finding examples, I can provide them. And those who blithely think to themselves that "it can't happen here" are, unfortunately, whistling past the graveyard of history. Our own country has already proven that it can indeed happen here -- just ask any Japanese who was interred during World War II. And it does not take much imagination to envision what politicians such as Charles Schumer (D-NY), Diane Feinstein (D-CA), Henry Waxman (D-CA), John Conyers (D_MI), etc., would do with such a list in the right set of circumstances. It's simply not worth the risk.

Oh, and by the way, it's not just the NRA that is against the idea of a national firearms registry, although they always seem to be the first target of choice. Many, many other organizations and individuals see this bad idea for what it is, many of which have no affiliation to that organization. They're simply Americans who still know what it means to be a free and self-governing people. How about this quote:

"I have not one doubt, even if I am in agreement with the National Rifle Association, that that kind of record keeping procedure [gun registration] is the first step to eventual confiscation under one administration or another."

- - Charles Morgan, Director, Washington D.C. ACLU, 1975

It's a scary world when the director of the ACLU sides with the NRA, eh?

Last but not least, regarding your comments regarding murder laws; these are obviously far from useless, because they do provide a set of conditions for determining if, a) a crime has occurred, and b) what punishment fits that crime, if the defendant is convicted. But do not confuse this with being able to legislate morality or safety -- it does not. The effects of these laws in being preventive measures are, quite obviously, nowhere as effective as we would like. Ask any police officer, investigator or criminal prosecutor -- when the vast majority of crimes are committed, the perpetrator rarely considers the ramifications of their act if they are caught. This is particularly true in crimes of passion, but is also surprisingly prevalent in those that are premeditated. The all-too-human mindset of "it won't happen to me" (namely, getting caught) is in large part the reason for this.

Please feel free to share this information with your colleagues. Like I said, if your paper is looking for conservative columnists…

Best regards,

Joe Brower

----- Original Message -----

From: [tom.lyons@heraldtribune.com]
To: "Joe Brower" [joebrower3@comcast.net]
Sent: Tuesday, October 22, 2002 3:07 PM
Subject: Re: If we put up with government registering our cars, why not our guns?
I haven't read the entire decision you suggested I read,...only about a third of it,,, and am still reading... but let me ask you a question that might save me from needing to do so.

I already agree with the reasoning that the 2nd amendment establishes an individual right to have firearms and bear them. As I've said, I support that right. and never said otherwise.

Obviously that would mean use them lawfully, not for murder and robbery and such, and I assume we agree on that.

(Maybe I shouldn't. I'm trying not to get distracted by your assertion that morality can't be legislated and that the proof is that murder happens even though it is illegal. In fact, all laws are sometimes violated, but many still help limit certain kinds of immoral behavior, and make it possible to imprison or execute those who murder or commit other seriously bad acts, which we call crimes. so they can't do them again. That's pretty basic to our system. You seem to argue that murder laws are useless and that it might as well be legal. I hope you don't mean that. If you do, I'll stop assuming that I'm communicating with a reasonable person.)

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?

Ballistic fingerprinting is more valuable than your NRA people say it is, I think, but let's pretend for the moment that this is beside the point and that the only issue is the constitution. OK?

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.

I don't mind you concluding that I'm wrong. But I'd like to hear an honest answer, and a real attempt to explain, without the insulting assertions that I'm dodging the constituional issue or being obstinate or whatever word you used just because I disagree with you.

Tom L.

[Ancesthntr]

Your easiest answer to the editor's question is: "The same Constitutional provision(s) or principle(s) that forbid the government from compiling lists of purchasers of high-speed printing presses, high-speed copiers, bibles, etc."

As an alternative, ask him whether the mandatory fingerprinting and DNA-printing of every US resident (and every immigrant - that ought to catch his attention) on the theory that this would aid in the solving of crimes would be Constitutionally permissable. If these actions are OK, then so would be the registration of guns and gunowners.

Any regulation or tax that in any way hinders, makes more expensive or dissuades people from exercising a Constitutionally-protected right is an infringement on that right. Since the 2nd Amendment specifically forbids any infringement on the RKBA, a registration scheme that arguably dissuades people from purchasing a firearm would be an infringement upon that right.

Further, this acts as a prior restraint on the exercise of a right - definitely a Constitutional no-no.

As many others here have argued, the 10th Amendment also applies, though the courts have made a mockery of this part of the Constitution. Try to impress upon this guy the nature of the relationship between the People and the government, from the perspective of the Founding Fathers. They purposely gave it only limited powers and, further, divided those powers into 3 branches, so that the central Fedgov could never get too powerful. Several states required a further safeguard against the encroachment of Fedgov power in the future (i.e. NOW) in order to ratify the Constitution, and that is how we got the 2A. To give the Fedgov the power to register gun owners is to diminish the effectiveness of the 2A and its goal (preservation of the ultimate power in the hands of the People), and allowing the Fedgov to compile such a list would be to give power to exactly the wrong party.

The 14th Amendment would, logically, apply all of this reasoning to the States and their subdivisions, even though the 2nd hasn't actually been incorporated under this principle yet.

[tpaine]

"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."


Simpy not so in regard to the constitution.
ALL levels of government are bound to honor the constitution under the supremacy clause, - Art VI.
["and the judges in every state shall be bound thereby"]
- Notice there is no exception for municipal/county/local judges.

[Redbob]

Excellent question.

My guess is that this issue becomes one of police powers, and per the 10th Amendment, police powers fall under the states. The federal government is not a police agency.

Some will argue that the feds can institute a National Firearms Registry under the "Commerce Clause", and a liberal judge like Stevens or Ginsburg would certainly rule that way, but that is certainly a stretch, to say that a registry of firearms owners pertains to interstate commerce!

Individual states can, I believe, create such a registry if their own constitutions permit it.

[tpaine]

Individual states can, I believe, create such a registry if their own constitutions permit it.
84


Why do you 'believe' this?
Can't you see that such power possessed by a state would undermine your inalienable right to self defense?

[dirtboy]

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?

Pretty good approach - does the registry have to show utility? Unfortunately, most government programs would fail this test as well, but haven't been ruled unconstitutional.

[scalia_#1]

Well you've established that you're against due process, because you think it is being 'abused' by the courts in the special interest cases you favor.

No, that's not it at all really. I support due process. I don't support a reading of the due process clause that adds an extra-constitutional substantive component to the clause. If you support substantive due process, then have at it, but just keep in mind the extra-constitutional company that you keep. As for "special interest cases you favor," I'm not really sure what that means. If you mean I oppose the court's decisions in Lochner, Griswold, and Roe because of the subject-matters of these cases, then you've made an unfounded assumption. My disdain for these decisions rests solely on their distorted interpretations of the Constitution, and the "special interest" rights that they create.

- I, and the USSC Justice quoted, think it can be used to protect ALL of the bill of rights. -- ALL of our liberties.

As I've said in my prior response and in this one, if you want to quote Justice Harlan and employ substantive due process, fine. But for the record, Harlan is not saying that the 14th Amendment due process clause "can be used to protect ALL of the bill of rights," he's saying that it can be used to protect whatever liberties the court considers fundamental, even beyond the freedoms articulated in the Bill of Rights. That's a pretty substantial difference.

[Technogeeb]

There are countless laws that call upon people to reveal to the government what they own and what they have in their homes

There can't be; any such law would be illegal under the 4th amendment.

[Wonder Warthog]

"Simpy not so in regard to the constitution. ALL levels of government are bound to honor the constitution under the supremacy clause, - Art VI. ["and the judges in every state shall be bound thereby"] - Notice there is no exception for municipal/county/local judges."

Sorry, but 'tain't so, at least not according to the Supreme Court. And the only way it "is" so is by virtue of the Reconstruction amendments "applying" the Bill of Rights to state law. Unfortunately, the Courts are currently succeeding in "having their cake and eating it too", with respect to the Second Amendment, as it has not been "incorporated" by judicial fiat as all the other nine have been.

[tpaine]

- I, and the USSC Justice quoted, think it can be used to protect ALL of the bill of rights. -- {AND} -- ALL of our liberties. - tpaine
__________________________________

As I've said in my prior response and in this one, if you want to quote Justice Harlan and employ substantive due process, fine.

But for the record, Harlan is not saying that the 14th Amendment due process clause "can be used to protect ALL of the bill of rights," he's saying that it can be used to protect whatever liberties the court considers fundamental, even beyond the freedoms articulated in the Bill of Rights.

That's a pretty substantial difference.
87
_________________________________

I added an {and} to my comment above to indicate that I stand with Harlan and see no reason why all our fundamental liberties should not be protected by due process.
Why do you think that all of our our freedoms are not 'articulated' in the bill of rights?
The 9th says otherwise, in no uncertain terms, to my way of thinking.

Now certainly, the USSC does not have the power to invent rights, if this is your point. - They are checked by the powers of congress in Art III, or by the amendment process.

[Henrietta]

Re-read the post; it has to deal with a fundamental right, and the Constitution says that to right to keep and bear arms is a fundamental right. Only use that analysis for fundamental rights. For a regulation that infringes on fundamental rights, yes, there has to be some utility.. Most govt programs do not deal with basic rights; you are getting the issues confused, here.

[tpaine]

"Simpy not so in regard to the constitution. ALL levels of government are bound to honor the constitution under the supremacy clause, - Art VI. ["and the judges in every state shall be bound thereby"] - Notice there is no exception for municipal/county/local judges."

Sorry, but 'tain't so, at least not according to the Supreme Court.

Where has the USSC said that Article VI is wrong? This is BIG news!

And the only way it "is" so is by virtue of the Reconstruction amendments "applying" the Bill of Rights to state law.

Exactly. States were violating freed slaves gun rights, among others, which made the 14th necessary.

Unfortunately, the Courts are currently succeeding in "having their cake and eating it too", with respect to the Second Amendment, as it has not been "incorporated" by judicial fiat as all the other nine have been.

The 'incorporation' of the 2nd would be un-necessary legalistic frosting on that cake. The 2nd has always been a self evident basic right, which cannot be infringed by any level of government. When, and if, the petty infringements & 'regulations' we now allow become intolerable, our constitutional contract will be broken.

[ATOMIC_PUNK]

Ive said it before and ill say it again" The government is afraid of the constitution and the people act like they are afraid of freedom " If we dont get all of them back together soon we will lose them all!

[jwalsh07]

Well, if you're a criminal it is because the fight amendment guarantees a right to no self incriminate. So criminals would theoretically be exempt while law abiding citizens wouldn't.

[jwalsh07]

fight = fifth in my version of English

[jcparks]

Reading your response brought tears to my eyes. If I may, I will copy this to my hard drive for future reference. I, too, have encountered many debates on what is "reasonable" restrictions upon an enumerated right. Your posting should enlighten even the most ignorant.
Unfortunately, like a lot of posters have pointed out, the federal government no longer respects the Constitution. I believe it is because of our current citizenry (not root cause - that's another story) does not understand the Constitution, nor do they want to be bothered by it, and they do not want to enforce it. So, in other words, our government has no accountability, and it knows it. End of story.

[Abundy]

The short answer is 'NO'. On a theoretical sense. Ask your editor if he would support a national penis database, wherein all potential rapists (Men) would be required to submit DNA and fingerprints - to help solve crimes, don'tcha know? Then ask this editor if he would support a national vagina database, wherein all potential rape victims would be required to provide DNA and fingerprints - to help identify the dead victims don'tcha know?

This issue is no different. Period.

On a practical sense, right now under the current state of the law, probably.

The long answer is IF, and ONLY IF, SCOTUS would take up the issue of the Second Amendment, declare it a fundamental right and that laws seeking to regulate it require strict scrutiny, a National Firearms Registry MIGHT NOT be constitutional.

Before the flames start, consider that I'm as about as extreme on this issue as anyone else - the Second Amendment is there to remind the Government what it is (the people) and keep the Government in fear of itself (the people).

IF the afore-mentioned precedent events occurred, We the People could be reasonably assured what laws would fly and what would not. Most of the current laws won't pass strict scrutiny. A ballistic fingerprint database might not either. But at least there would be a framework through which Courts could then analyze laws and government conduct. Unlike now, where the Feds in their hunt for the sniper were harrassing law-abiding purchasers here in Maryland to turn in their firearms for test fireing declaring "what, do you have something to hide?"

Right now there is no law on point and who knows what could happen. What we do know is every State where there has been a registration there has been a confiscation. NY and CA. DC. Now it is ocurring in MD - they illegally using purchase records to harrass innocent firearms owners.

Back to the penis and vagina databases - it is a terrible invasion of privacy; there is no data that says most men will rape and most women will be victims, so the affected population would be largely innocent citizens; the ACLU would scream about privacy concerns; and it would not STOP a single rape. Only after a rape was committed and/or a dead body found would there be an arrest.

The same arguments against a firearms registry apply.

[Joe Brower]

If I may, I will copy this to my hard drive for future reference.

Thanks for the bon mots. And of course, please feel free to copy, use and distribute my "mini-essay" freely; I gladly put it in the public domain so that others can use it for their own efforts.

[Joe Brower]

Here's the URL for this column --> CLICK HERE.

Rational gun-rights advocates take better aim than the loose cannons
Tom Lyons
Oct 24, 2002

Maybe gun rights advocates are getting smarter, or maybe my luck has just changed.

Since I'm not anti-gun, but am pro-common sense and anti-murder, once in a long while I write something sympathetic to this or that gun-regulation proposal.

The other day I disagreed with an idea expressed by our nation's president. He had said it would be a violation of "privacy rights" to require ballistic "fingerprinting" of guns at the factory or before they are sold, an idea that advocates say would help police trace more murder weapons to the killers.

I have read that the president has now backed off from that view a little. He will still oppose any such plan, I expect, but he said he is not opposed to researching the technical challenges before making a decision, and said privacy is not really the key issue.

That's good. I have a hard time with the belief that ownership of deadly weapons is such a personal matter that the right to keep them secret outweighs our right to have some of way of learning who killed a family member with one.

The right to bear arms is one thing. No alleged right to bear guns in total secrecy is guaranteed by the Second Amendment to the Bill of Rights, as I read it.

But it used to be that expressing any such opinion would bring the nut cases out of the woodwork. A high percentage of those who used to contact me to express disagreement did it with nasty insults and with illogical and extreme claims, and in a tone counter to the norms of polite discussion. I was usually left thinking: Great, this guy is totally unhindered by rational thought or respect for those who disagree with him, and he is armed like a mercenary. Comforting combination.

But lately I've been hearing from a different class of gun owners. They are more like most of the hunters and other gun buffs I've known personally, and they have been unusually well informed on the legal issues and exceptionally able to discuss the issues rationally. They have kept the insults to a bare minimum, too.

That's a lot harder to deal with.

I can't summarize their many arguments here. But a Venice man asked me if I would object if the government, despite the First Amendment guarantee of free speech and press, announced some crime-busting idea that required registering every word processor, typewriter, pen, pencil, note pad, fax machine, and printing press. Would that not give me the creeps?

Good analogy, and well chosen to press my buttons. Yes, I sure would object.

The analogy was just good enough to make me seriously think about why so many gun advocates are adamant that anything vaguely like a gun registration proposal is a scam to set the stage for confiscation of many, if not all, guns.

That worry does make sense. There are people who want to ban private gun ownership, and who would discard the Second Amendment right to bear arms. Some believe that amendment doesn't guarantee any right of private gun ownership.

But fear that gun rights are eroding is not the only valid worry that freedom-loving people face. For many, the fear of being killed by a drive-by shooter, sniper, robber, drunk, mugger, carjacker or other member of the armed citizenry is at least equally valid. Conflicting rights have to be balanced and compromised at times.

So that First Amendment analogy only goes so far.

If murderers start killing thousands each year by sending them deadly faxes -- a fear not yet justified -- I would still stand by my right to fax responsibly. But I would sure support reasonable fax machine regulations designed to help catch those anonymous fax murderers.

I would not rely solely on my fantasy of outfaxing the killers before they fax me.