Constitutionality of mapping

[siglite]

Yes, but it lists me as an able bodied person ready for military service.

I'd like to leave your response at that to avoid thread-drift. While I may, or may not agree with your positions on those other issues, I'd really like to keep this one on course. Meaning, I'm very interested in constitutional law, or case law arguments supporting mapping as constitutional or unconstitutional.

Dallas has posted the most intriguing response on the flipside of the consensus coin here:

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.

Do you have any examples of this?

 

[Mannix]

The real issue is if registration of guns constitutes a violation of either the 4th or 2nd amendments. If they already have a list, mapping the list doesn't do much more except making organization of mass confiscation a little bit easier.

 

[littlegator]

The broader authority for the gov't to watch over and/or control private actions has traditionally rested with the commerce clause - "to regulate commerce...among the several states." Long story with a lot of cases, but nutshelling it - Lochner and projeny, including Wicker v. Filburn, for example, interpreted the constitution as giving the federal government very broad authority in regulating commerce between the states. For example, in Wicker, the Court held that where a private owner purchases wheat (old case), such a purchase can be considered a commercial activity having a substantial affect on interstate commernce. The connection was made when the Court stated that wheat purchases, when made in aggregate by all individuals in the US, would affect commerce among the states. Pretty big stretch there by the Court, but not surprising given Court packing by FDR.

In any case, I'm sure many here will remember the Lopez case involving the federal "Gun Free School Act". The issue before the Court was whether the Gun Free Public School Act was a valid exercise of congressional authority under the commerce clause. The Act was a federal regulation passed under authority of the Commerce Clause and used to prosecute a student as a federal offense who knowingly brought a gun to school (school zone). Fortunately, Rhenquist wrote the opinion, held that there was no economic regulation and no "substantial effect" on commerce. It was apparent that the Court (Rhenquist) used Lopez, however, as a limit to federal police powers over local, intrastate, concerns. Lopez, however, did not have the affect many believed it would have, and the commerce clause is still alive and kicking. (Even though Lopez has its own children, such as Morrison and the "migratory bird case".) Needless to say, if the Court wanted to map gun ownership, the commerce clause might provide the authority needed.

Additionally, in times of war, the federal government has had extremely broad authority to control the lives of the citizenry. Cases such as the Japanese internment cases during WWII are a perfect example. Presidential Proclamation 2537 was issued on January 14, 1942, and required Japanese to report any change of address, employment or name to the FBI. A violation would subject a person to interrogation and/or arrest. Said proclamation was codified with Exec Order 9066 by FDR. (And who said Democrats don't like a strong central govt? hehe)

By analogy, an executive order would be just the ticket for a liberal leaning president who has a problem with personal gun ownership during a time of war. And war, as we know, has a vague definition.

 

[yesit'sloaded]

Constitutional law is tricky because it doesn't matter what we think, only what the nine in robes think. If they think the 2nd amendment means we all get ice cream on every other Friday, thats what it means under law. It can go either way depending on the court. For instance, I doubt the decision made in Roe v. Wade would have been made the same way today. Do I think that some laws are "chilling" towards the 2nd amendment, yes, but until the supreme court rules on Heller (if they rule at all) I can't say for fact what the 2nd amendment means, even though it is written down on a piece of paper. I guess the best analogy is that the supreme court is like a dictionary for every word in the constitution. So whether or not something is currently constitutional depends on the current interpretation, which is fluid due to the court.

 

[littlegator]

Out of curiosity siglite, you aren't a liberal leaning gun-hating attorney general for some state like California are you?

 

[littlegator]

yesit'sloaded - exactly.

 

[ProficientRifleman]

Drifting away from the mapping topic...but,

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...

Not true, Jeff.

...so it can be accessed in case they needed to call out the militia.

You might as well say... so it can be confiscated if that should become national policy.

That requirement might be placed upon a citizen if his weapons and equipment were provided by congress and if he signed for and took official responsibility for Government Property.

Under a second amendment guarantee of his RIGHT to be ARMED, the federal government would have no authority to know exactly what arms and ammunition, and/or equipment (of usefulness to the militia) a citizen might have. A citizen's right to arms is general and NOT narrowly defined. Although Congress probably SHOULD prescribe and define a basic basic load.

Theoretically the Executive Branch might survey the population from time to time, as in the census, to see if the unorganized (non-select) militia was prepared to act in concert for the common defense. But to make an exact list would be the same as saying, "You are allowed to have this and no more (unless we approve it first)!" That would be a violation of a free citizen's general right to keep and bear arms.

 

[iratollah]

How is this different from many other government databases? How many gov't databases exist of which we have no clue?

 

[littlegator]

How is this different from many other government databases? How many gov't databases exist of which we have no clue?

Exactly. I can think of at least 4 or 5 just off the top of my head of which I have no clue...




Get it? Subtle humor is great...especially when I get it.

 

[BullfrogKen]

PA State Police maintains a database of handgun owners. All handguns transfers in PA must be submitted to the State Police. Some years back, I forget exactly when it was, it was challenged in court and the PA court system ordered them to destroy the database.


They promptly . . . ignored the order. They continue to maintain it to this day.

The data already exists. All putting it on a map would require is a bill from the State House to fund it.

 

[hobgob]

i think this would fall under a violation of fourth amendment rights Protection from unreasonable search and seizure. all a map like that would do is tell a potential burglar what houses to break into(or not if hes a smart). Or give your neighbors a reason to judge.

 

[littlegator]

It wouldn't be considered unreasonable, a search, or a seizure, however, given the plethora of cases on the 4th amend.

 

[hobgob]

im not informed on all the cases of the fourth, i was just stating my opinion on the matter and as a citizen i would consider that a violation of my rights, i dont want every joe to know that i own a gun. there are a lot of people out there who dont liek the idea and thats fine with me, but i dont want to have some anti gun protestors to get a hold of some map like that and then find them out on my lawn. i can just see many downfalls of such a map and not many gains from it.

 

[BullfrogKen]

Looks like I misspoke a bit earlier.

Here's the law from the PA Uniform Firearm's Act:

TITLE 18
PA CRIMES CODES
§6111.4. Registration of Firearms.

Notwithstanding any section of this chapter to the contrary, nothing in this chapter shall be construed to allow any govern*ment or law enforcement agency or any agent thereof to create, maintain or operate any registry of firearm ownership within this Commonwealth. For the purposes of this section only, the term “firearm” shall include any weapon that is designed to or may readily be converted to expel any projectile by the action of an explosive or the frame or receiver of any such weapon. (Added by L 1995. Spec. Sess 1, Act 17(6,), eff 10/11/95.)

Allegheny County Sportsmen's League, the Lehigh Valley Firearms Coalition and four individuals, who claimed the database represented an illegal gun registry in violation of 1995 amendments to the state’s Uniform Firearms Act challenged the PA State Police handgun registry.

Here's the press releases from the Supreme Court on the issue:

First, the PA State Police press release:

Commonwealth Court Dismisses Challenge to Handgun Sales Database

HARRISBURG (Jan. 9, 2002) -- Commonwealth Court today dismissed a suit challenging the right of State Police to maintain a 70-year-old handgun sales database used by the department to help solve crimes.

"The court’s decision represents an important victory in law enforcement’s efforts to protect the citizens of the Commonwealth," State Police Commissioner Paul J. Evanko said.

The court dismissed a suit filed in 2000 by the Allegheny Sportsmen’s League, the Lehigh Valley Firearms Coalition and four individuals, who claimed the database represented an illegal gun registry in violation of 1995 amendments to the state’s Uniform Firearms Act.

In a majority opinion written by Judge James R. Kelley, the court found that the database is not an illegal registry as defined by the law.

"As suggested by the Commonwealth, the purpose [of the database] is to enable the State Police to maintain a record of sales for law enforcement purposes in the event handguns are utilized in the commission of crimes," Kelley wrote. "Such purpose is consistent with long history of the Commonwealth’s maintenance of a handgun sales database."

The purpose of the database also is consistent with a section of the Uniform Firearms Act that requires State Police to make "all reasonable efforts to determine the lawful owner" of any firearm confiscated by State Police and return the firearm to its lawful owner, the opinion stated.

Col. Evanko said the state has kept records of handgun purchases since the early 1930s, and it has been a State Police responsibility since 1943.

Data from the purchase forms, including the buyer’s name, date of birth, Social Security number, date of sale, identity of dealer and specific information about the handgun, are entered into a computer database.

"This information provides a starting point for investigators when a handgun used in the commission of a crime is recovered by police," Col. Evanko said. "Destroying this file would not only make crime solving in the Commonwealth more difficult, but would also jeopardize the lives and safety of citizens and police officers."

Assistant Counsel Joanna N. Reynolds of the State Police Office of Chief Counsel represented the Commonwealth.

Second, from the Associated Press:

PA high court OK's state police handgun registry

Associated Press

A state police database of handgun sales is not an illegal registry of firearm ownership, the state Supreme Court ruled yesterday, turning away arguments by sportsmen who have challenged the database for four years.

The high court, in a 3-2 ruling, rejected arguments that the state police database violates the state's 1995 Uniform Firearms Act. The ruling upholds a Commonwealth Court judge's ruling in 2001.

Gun owners and sportsmen sued in 2000, maintaining that the computer database constitutes an illegal registry of firearms ownership.

Specifically, the lawsuit claimed that the information state police glean from handgun purchases violates the 1995 law that bars police from maintaining a registry of firearms ownership. The sportsmen also contended that the practice violates a 1997 law that requires state police to destroy certain gun-sale records within 72 hours, following a criminal record check.

Data from the purchase forms -- the buyer's name, date of birth, Social Security number, the date of sale, the identity of the dealer, and the serial number, make and caliber of the handgun -- are entered into a computer database that also contains criminal history information and is shared with local police.

Writing for the majority, Justice Ronald D. Castille found that the database of sales was not tantamount to an ownership registry.

"Although the database may be a registry, it is not a registry of firearm ownership ... The database does not maintain a record of all firearms owned by Pennsylvanians, which would include long guns (shotguns and rifles), or firearms that are owned by Pennsylvanians, but not purchased in the Commonwealth," Castille wrote.

State police said the provision requiring records to be destroyed within three days is intended to apply only to "long-gun" purchases, and only when the state's electronic instant background checking system breaks down for more than 48 hours. The state has kept records of handgun purchases since 1931, and it has been a state police responsibility since 1943.

In a dissent, Justices Russell M. Nigro and Sandra Schultz Newman, said the database did rise to an illegal registry of gun owners.

"Even though the database at issue here does not include every person in Pennsylvania who owns a handgun ... it nevertheless violates (state law) by keeping a partial record of handgun ownership insofar as it records those persons who either own or used to own a handgun that they purchased," Nigro wrote.

Justices Thomas Saylor and William H. Lamb, who left the bench in January, did not take part in the ruling.

The lawsuit and appeal were filed by the Allegheny County Sportsmen's League, the Lehigh Valley Firearms Coalition and four individual plaintiffs.

Michael Slavonic, a board member of the Allegheny County Sportsmen's League, said he was disappointed.

"We think we fought the good fight and I guess the situation is that right now that we have a definitive opinion from the court and we will have to look toward the Legislature for a remedy," Slavonic said.

So, you tell me. The state law seems pretty specific on "no databases". It's generally been asserted the 2nd Amendment wouldn't allow it at the Federal level. The arguement here was, "Since the State Police doesn't register every gun, just some of them, it doesn't amount to a registry, and it's OK."


If all the State Police wanted to do was match that database up to a street mapping system, I can't see how any law could stop them, either state or federal. All they'd need was a bill for funding.


Anyone read it differently?

 

[Jeff White]

ProficientRifleman said;

That requirement might be placed upon a citizen if his weapons and equipment were provided by congress and if he signed for and took official responsibility for Government Property.

That requirement might be placed on a citizen so that his privately purchased arms and equipment would be available to the government in times of crisis. You might google executive orders and find the one that goes back to the cold war days that gives the government authority to seize privately owned supplies during a crisis. All that law would do was codify that executive order.

Under a second amendment guarantee of his RIGHT to be ARMED, the federal government would have no authority to know exactly what arms and ammunition, and/or equipment (of usefulness to the militia) a citizen might have. A citizen's right to arms is general and NOT narrowly defined. Although Congress probably SHOULD prescribe and define a basic basic load.

Where have you been the last 200 or so years? Do you have a court decision that says we have a second amendment guarantee of a right to be armed? I thought that was what we were all waiting on with Heller? Just because we think that we have a second amendment guarantee of an individual right to be armed, the court could easily rule that it's a collective right.

Theoretically the Executive Branch might survey the population from time to time, as in the census, to see if the unorganized (non-select) militia was prepared to act in concert for the common defense. But to make an exact list would be the same as saying, "You are allowed to have this and no more (unless we approve it first)!" That would be a violation of a free citizen's general right to keep and bear arms.

You only think you have that right. There are others who think you don't. The court has never ruled that we do or that we don't. So it's quite possible that the court will accept the collective rights argument and open the door to all kinds of things.

But even if it didn't, there are no words in the second amendment that forbids the government from proscribing what the militia is armed with. The second amendment says a well regulated militia is necessary for the security of a free state and Article 1 Section 8 of the Constitution gives congress the authority to regulate the militia as it may be called into federal service.

Here's an example of the legislation that could happen:

Congress finds that in this age of intercontinental ballistic missiles, and the threat of nuclear, chemical or biological terrorism that the nation must be prepared to react to a threat at all times. Budget constraints forbid a large enough security force to protect the nation.

In order to defend the country we must know what resources the unorganized militia has available to defend the homeland.

Congress directs that all states and territories survey the members of the unorganized militia within their borders and report to the Department of Homeland Security the name, address and available arms, ammunition and equipment of each member of the unorganized militia.

States and territories not in compliance six months after this act is signed into law will lose federal funding for their organized militia units (National Guard).

I believe that law would be constitutional. There is nothing in the bill of rights that forbids the government from keeping a record of who is available for militia duty and what equipment they have. In fact I think you'd have a hard time convincing anyone that if the unorganized militia really does exist, that it's none of the government's business if or how it's armed.

And if the court takes a collective rights interpretation and congress decides the unorganized militia is to be armed with brooms, shovels and pickaxes...and nothing more, guess what the right to keep and bear arms means then.....

I've said this many times here, and people just don't get it: The militia is not a check on the government, the militia is a means for the government to stay in power. The people don't call out the militia, an official of the government, either the governor of a state or the president calls out the militia.

The Supreme Court already decided in Presser v. Illinois in 1886, that the government had the right to outlaw private military organizations.

Just my thoughts on what we could see if the Court rules that it's a collective right. Although I do believe that even if we get the ruling we want, that it would not be unconstitutional for the federal government to inventory the privately held arms in this country on the grounds it has a right to know so that it can properly prepare to defend the country.

Jeff

 

[Double Naught Spy]

How is this different from many other government databases?

Right. A map is simply a pictorial spatial relationship database. It provides no more information about individuals than their name and address. If the government knows you own guns, they already have the information.

Jeff said,

I've said this many times here, and people just don't get it: The militia is not a check on the government, the militia is a means for the government to stay in power. The people don't call out the militia, an official of the government, either the governor of a state or the president calls out the militia.

Right. The problem here is that many people here believe things like being in a militia is patriotic, that a militia fighting its own government is patriotic, and that owning guns is patriotic because when the colonies committed treasonous acts against England, they did so with armed militias.

Strangely, many of the same people will defend the history of our founding fathers and their creation of the Constitution and Bill of Rights on one hand and gladly attack them on the other with statements like saying they should not adhere to unjust laws even if the Supreme Court has upheld them. Or, they recognize their interpretation of the Constitution and Bill of Rights as being legally correct over that of the Supreme Court even though the courts are prescribed recognized in Article III as having power in that area. It is a bit of a weird bastardization of history, but such notions keep getting repeated here as well.

 

[mekender]

first time this "list" got leaked to/by the media, or the first time that a BG used this list to rob a home of its guns, the list would go away... imagine the outrage if 3 or 4 houses in the same city were robbed of their guns, and it was found that the robbers were using the map as a "shopping list"

a FL news station did something similar a while back when they published the full FL list of CCW holders on their website... the list stayed up less than 24 hours, but the outrage lasted weeks

 

[Autolycus]

Originally posted by 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.

Do you have any proof that their are more gun owners than non-gun owners?

 

[ozwyn]

while i do not question the legality of the option consider this...

if the word "gun owner" to Jew, Muslim, Single female, or homosexual, does that map feel like it is the kind of thing that is just or moral?

Being uncomfortable with the idea, regardless of possible legality is natural, normal and to be expected. Spend all the time you want justifying the map, that doesn't make it the right thing to do.

 

[Zundfolge]

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.

One could argue the "Right to Privacy" angle ... I mean if its good enough to allow you to murder your unborn children, it should be good enough to keep the Gendarmes from creating a "confiscation route map" (or worse publishing a "criminal shopping list map").

 

[cyclist]

It seems to be okay to map areas based upon voter registrations and to rezone districts accordingly. It is also apparently okay to map areas based upon vehicle registrations.

But mapping CCW or gun owner locations does bother me a bit. Why don't they just map houses with built-in wall safes since it can be argued that drug dealers use built-in safes to keep their money safe.

My question is not if it is legal or constitutional, but rather what is their intended purpose of mapping per their chosen parameters?

(and I'll admit to not reading the whole thread thusfar.)

 

[ilbob]

bad idea, but nothing in the constitution forbids government entities from having bad ideas.

 

[308win]

If the government mapped gun owners what information would form the basis for inclusion of an individual on the map? Legitimate and criminal owners of guns may not be known to anyone. If a person possessed guns (whether or not he actually owned the guns) but this fact was not included in the information on which the mapping is based would this constitute unequal application of the rule?

 

[hugh damright]

The militia is not a check on the government, the militia is a means for the government to stay in power. The people don't call out the militia, an official of the government, either the governor of a state or the president calls out the militia.

I disagree. Militia is not intended to secure the government, it is intended to secure free government. It is intended to secure popular government. If the intent was to secure government against the people, I think they would use a select force, a standing army, like back when we had British troops here to dominate us. But it was declared that a standing army in times of peace is a danger to a people's political liberty, and that the proper defense of a free government was militia, composed of the body of people. Militia is intended to be a check against military rule.

 

[ServiceSoon]

i think this would fall under a violation of fourth amendment rights Protection from unreasonable search and seizure.

I think that is the best angle to argue the constitutionality of said list.

If the government knows you own guns, they already have the information.

But..but..the federal back ground checks are suppose to be deleted & the 4473 forms are not kept by any government officials. Many firearms laws are/were sold to the people, with the NRA's help (please send NRA anti-hate mail to [email protected]) because there is no federal organized list. Less we forget there is nothing stopping the BATFE from "calling" for all 4473's to be turned in because of an emergency. We were and continue to be duped for allowing any form of list of firearm owners. I can see the reasoning to have such a list, but have you seen the percent of rejected back ground checks athat are actually followed up or investigated. You realize that just talking about this automatically means you're a tin foil hate wearing conspirator because the US gov would never take your lawfully acquired firearms. There is absolutely nothing wrong with firearm registration, owner registration etc if the gov never intends to take your guns. I think that is the only objection to the gov collecting this information.

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.

The constitution says nothing about the right to privacy, but that doesn't mean it doesn't exist. I always thought that is what the 9th amendment was about, a liberty catch all.
The idea of having a list (re:map) of people who have done nothing malum in se troubles me. In this example it is also a waste of the people’s taxes and has no useful purpose.