Constitutionality of mapping

[siglite]

First off, allow me to preface this with a couple of quick caveats.

I'm new here, and haven't quite gotten a feel for what might be taboo. So if the mods view this as inflammatory, off-topic, or out of line for any reason, I will not be offended if this post is locked, moved, deleted, or any other action is taken. I'll simply check it off as lesson learned, and move on.

Now that I'm through that, let's get to the meat of my query.

ISTR Philly proposing mapping the homes of gun owners a while back, though I could have my cities mungled. Another mapping issue came up (which is not a 2a related point, so I'll omit it here) that's a bit closer to current events. Much of the discussion hinged around the constitutionality of mapping protected classes. (I view gun owners as a constitutionally protected class). Many considered that mapping would not be unconstitutional, as it does not represent an infringement. Their position was that an obvious slippery slope type of action (such as mapping) does not violate COTUS. An additional justification was that since so many of us have applied for, and carry CCWs, a defacto map of gun owners exists at your local sheriff's department or state police station, and is but a few keystrokes away from an actual map with today's technology. As such, the concept of creating actual maps is moot.

Thoughts?

Am I out of line?

 

[Jeff White]

Show me the part of the Bill of Rights that forbids the government to have a map. I don't think there is any constitutional issue here.

Jeff

 

[siglite]

I suppose one might argue that the 9th and 10th do. So you're in agreement that there'd be no constitutional issue with mapping the homes of gun owners?

 

[nfl1990]

The constitution also to the best of my knowledge does not specifically say anything about the registration of guns and their owners, however due to the obvious link between registration and confiscation it is considered unconstitutional. Could a similar link exist between mapping and confiscation, ie: they know where they are, now they can come and get them.

 

[Crunker1337]

I don't think that there's a real Constitutional issue... that doesn't mean that I don't want big brother to be breathing down my neck all the time.

 

[yesit'sloaded]

I'll take the bait. I did start a whole thread on this over on armedpolitesociety.com and it was argued over for a few days. I don't think it is right as it is a slippery slope that can go downhill real fast. I would also like to know what purpose a map of a particular group is needed for, especially of a religious group.

 

[b-rad]

it really is unconstitional, the writers would never have belived the goverment had any right to even know who had guns

 

[siglite]

I would also like to know what purpose a map of a particular group is needed for, especially of a religious group.

If you don't mind, I'd like to explicitly avoid that hot potato in this thread.

 

[Jeff White]

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

I don't see how you can stretch this into it being unconstitutional for the government to make a map.

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.

I don't buy the 10th Amendment argument either.

What about a private citizen making such a map. Say newspaper gets the FOID card list in Illinois or the CCW list from every state and makes such a map? What then?

Jeff

 

[siglite]

Well, I'd see a map made and maintained by a private citizen / organization as a different animal than one made and maintained by the state.

Though as to the applicability of the 2nd, 9th, and 10th, I don't know. That's why I'm asking.

 

[yesit'sloaded]

This all goes back to what the governments job is or should be. I believe it should defend the borders and enforce the laws we the people have made. I don't want my tax dollars used to map me out so that I can be visited later if the government decides it is necessary.

 

[siglite]

This all goes back to what the governments job is or should be. I believe it should defend the borders and enforce the laws we the people have made. I don't want my tax dollars used to map me out so that I can be visited later if the government decides it is necessary.

While I agree with you 100%, that's still a slippery slope type argument, and probably doesn't have any constitutional validity. Unless of course someone can cite where the court has opined that an obvious slippery slope action violates COTUS. That's what I'm looking for here. I'd love for someone to come up with such a case, but I'm not overly optimistic.

 

[Jeff White]

look at Article 1 Section 8 and see if you don't believe that Congress would have the power to order that:

Section 8. The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;

To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;

To provide for the punishment of counterfeiting the securities and current coin of the United States;

To establish post offices and post roads;

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

To constitute tribunals inferior to the Supreme Court;

To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;--And

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

That old provide for the common defense and promote the general welfare part is the big thing standing in the way of it being unconstitutional. Now look at the other part I highlighted. They could under the guise of organizing, arming and training the militia (which is every able bodied male between 18 and 45 who is not a member of the regular military service and some other exemptions I don't recall at the moment) require you to provide them with your inventory of weapons and ammunition that are available for militia use and keep them appraised of where it is stored so it can be accessed in case they needed to call out the militia. How else do you know who to call up?

Jeff

 

[siglite]

Interesting POV and points Jeff.

Any counterpoints from anyone else?

 

[Jeff White]

The antis have taken the wrong track in just trying to pretend the Second Amendment doesn't exist. Congress has the constitutional authority to regulate the militia. They could easily admit the Second Amendment exists, allow us to have any weapons suitable for militia use, and strictly regulate how they are used with violations making one ineligible to be a member of the militia.

Say you could have an M4A1 or an M240, keep it an ammunition in your house. However you would only be permitted to get it out of it's government approved safe annually for an inspection and only be permitted to fire it on Unorganized Militia Muster Day which they might conveniently forget to fund...ever.

Not that I'm advocating this, in fact I never thought about it until you brought this mapping thing up. If they worded the laws right, we'd be making common law self defense arguments in order to keep assembled weapons in our homes.

Jeff

 

[Harve Curry]

The government could save time and money by mapping non-gun owners. It would be a smaller map, but be obsolete frequently. Oh wait it's the government.

 

[Telperion]

Jeff, read the phrase more carefully with my emphasis:

The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States

The "common defense" and "general welfare" clauses are connected to Congress' power to tax and spend. It is not a grant of plenary authority or police power; it limits how Congress can spend tax revenues. Now if the registration was authorized separately, this would also allow Congress to spend money to maintain it.

The militia argument is interesting but uncharted Constitutional waters. Does it extend merely to the person, so that they are registered to be called to service? Or would it extend to keeping an inventory of a person's militia-suitable arms (i.e. gun registration), and who makes the determination of what is militia-suitable?

 

[yesit'sloaded]

Kinda like the NFA doesn't ban weapons, it just taxes them and requires various forms and procedures that de facto ban them. Maybe making a map is in and of itself harmless, but the slope is too slippery for me to want to touch it. It seems to me about the same as registration, sure it is only in case a gun is lost or stolen for now, but in the future it could be abused to take our guns away. That would definitely violate the constitution. One must also remember the constitution doesn't give us rights, it merely reminds the government that seems to forget that we have those rights whether they say so or not. You only lose a right when you refuse to fight for it or exercise it.

 

[Jeff White]

Telperion,

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

This paragraph gives them all the power they need to regulate gun ownership. You can hardly organize, arm and discipline the militia if you can't standardize the weapons they are armed with or control how they are used and stored.

Jeff

 

[Telperion]

Jeff, read my edit. This part of the Constitution has little legislative history beyond the Militia Act, and it is presumptive to say what actual regulatory powers it grants.

 

[Dallas239]

The actual answer depends on whether the right to keep and bear arms is a fundamental right, what the contours of that right are, and what the government's purpose would be in creating such a list.

The Supreme Court has recognized that certain types of government regulations have a "chilling effect" on free speech (and other rights), even if they aren't direct infrigements. It is certainly possible that someday the Court will develop a similar doctrine with respect to gun ownership. There is a strong argument that any government regulation that has the effect of discouraging people from exercising their rights should be held to a very high standard of review.

 

[BullfrogKen]

The "general welfare" clause is often cited as the justification for government funded schools. It's been used to do all manner of things by modern lawmakers and upheld by judicial rulings to engage in acts. One would wonder how those decisions and acts could stand up under Article X, but the nature of government is to bring more and more areas under its purview. So, there you go.


I can't see how a map of gun owners could possibly be thought of as unconstitutional. I guess one could argue that the so-called "right to privacy", which led to the split ruling of Roe v Wade, could be cited. But since there's no such right to privacy in the Constitution, it would rest on citing unrelated case law.


Government does keep stats on people. The census asks questions that go beyond the requirement for a simple head count. Granted the long form doesn't go out to each household, so it's not thorough, but stats like your political affiliation are. Each state usually goes through a redistricting from time to time, and districts are drawn along political party concentrations. That redistricting is quite the political football. If you ever pay attention to it as it happens, you'd be surprised at the raw politics involved in that process.


Could a map of gun owners be done under the current Constitution? I think it could. More specifically, I can't see how the Constitution would prevent it. A well regulated militia probably ought to include a list of those eligible. In fact, back when state militias were the force used to deal with problems like civil insurrection, the local governments did keep such lists. Go read up on historical accounts of events like the Whiskey Rebellion and you'll get an idea of how well the states kept those records. Those events themselves were quite political. Maryland was asked to call up the militia to send into western Pennsylvania to deal with that event. The bargaining in the state house about who would go, how many from which county, and who would lead them, etc. is quite enlightening.

 

[yesit'sloaded]

A well regulated militia probably ought to include a list of those eligible.

I thought that was what was happening when I signed up for the draft.

 

[BullfrogKen]

And exactly who is it that would be drafting you? It wouldn't be the militia.

 

[yesit'sloaded]

Yes, but it lists me as an able bodied person ready for military service. Which brings us to whether or not the United States has any business fighting off of our own soil with a standing army, which leads to imperialism, which leads to an Iraq war debate, and other things that would get the thread locked.