[Joe Brower]

[Joe Brower]

[dirtboy]

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.

[dd5339]

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

[Atlas Sneezed]

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.

[freeeee]

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.

[Mr. Bird]

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.

[E. Pluribus Unum]

I think the legal concept that makes gun registration unconstitutional is "prior restraint."

[ravingnutter]

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.

[Ravenstar]

"....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

[Sloth]

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.

[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.

[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)

[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?

[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.

[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.

[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!

[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.