Is registration constitutional?

[frankie_the_yankee]

Frankie, you seem to have the market cornered on snark. Is it intentional in order to get a thread closed where your arguments are failing, or when you see supporters of the Constitution come out of the woodwork and out number you?

Your snide remarks to Harve Curry are abominable.

Fine. So can someone just explain to me how it is that they "know" that registration is "unconstitutional" in the absence of any case law to that effect?

And who determines who are "supporters of the Constitution"? You? How did you attain the position that allows you to make that classification? I might be outnumbered on this thread, but it is not by people I would classify as "supporters of the Constitution". In my opinion, it is by people who have not the faintest idea of what the Constitution is, how it works, and how the law works.

And I believe I have at least as much standing to make that determination as you do to make yours.

If people simply said that they "think" it is unconstitutional because....., I would have no problem with it, other than it being off topic.

The thread is supposed to be about whether registration is or isn't unconstitutional. I would have expected this would have stimulated a conversation about case law and legal precedents one way or the other.

This is the "Legal" forum after all.

Instead, responses seem to fall into two catagories. A few people offer their opinions on whether or not registration is unconstitutional, some making references to legal precedent and others not. And a lot of people simply assert that, "the 2A says this and means that because I can read English..." or some such nonsense, as if only their interpretation of what it means could possibly be valid.

So I want to know where the people who claim to "know" what the 2A means and that registration is unconstitutional get off thinking that their determination of what the 2A means is the only valid one?

I have asked for this information many times.

No one has attempted to answer it.

So I keep trying different ways of posing the question in the hopes of stimulating some introspection on the part of these purveyors of revealed truth and maybe opening their minds to the fact that there are 300 milloin of us who may ALSO have thoughts on what the 2A means, so why are their (the revealed truthers') thoughts so special?

So far, I have only succeeded in stimulating the posting of more nonsense.

It's probably hopeless.

Maybe I should start a thread titled, "To Heck with the Courts! YOU tell us what the Constitution means!"? I'll bet I get a lot of responses that will fall into a few basic catagories, along with a lot of cheerleaders.

Wouldn't that make for interesting reading.

Disclaimer: If I do this, I am not responsible for any carpal tunnel-related disabilities that result from people who just can't stop posting messages telling us what each and every little bit of it means.

 

[IA_farmboy]

Frankie_the_yankee:

In response to your comment that no one has attempted to truly answer the question at hand I suggest you reread my comment above.

I can summarize here though...

The constitutionality of registration has not been tested explicitly in court. Therefore the constitutionality cannot be determined in a yes or no fashion.

End summary.

What has been tested are a few things like can felons be barred from owning firearms? Yes. Can the federal government retain the logs of FFLs that check if a purchaser is a prohibited person (such as being a felon)? No.

Can the District of Columbia have a firearm registry? Parker avoids this. Can the District of Columbia refuse registration at the same time as requiring registration? Parker says no.

The registry itself is not unconstitutional, as a few court cases show. What is unconstitutional is when those registries lead to confiscation, barring ownership, and other abridgments of our rights.

In my opinion registration is unconstitutional and at some point is likely to be ruled unconstitutional.

Franie_the_yankee, if you are going to continue to berate and belittle people for voicing an opinion in opposition of your own I have to ask, just who do you think you are stating that registration IS constitutional?

I do not have a legal degree but I do still expect civil discussion in spite of that, even in a "legal" internet forum.

 

[frankie_the_yankee]

While speech is speech and religion is religion it is also true that guns are property. Property cannot be seized without due process or just compensation.

There's all different kinds of property. Guns are guns, and real estate is real estate.

Also, you seem to be saying that you think it would be constitutional for the government to seize guns if they provided due process and just compensation. I'm not sure that I would agree. If applied to adult LAC's, that might be a 2A violation. I wonder if there is any case law dealing with confiscation schemes implemented in NYC and CA in the last 20 years or so.

As people continue to point out the question is about registration, not confiscation. Then I have to ask what use is registration EXCEPT for confiscation?

Little or no use. I fully agree.

But as another poster has pointed out, unless the government actually does go on to confiscate guns, "plain vanilla" registration by itself probably does pass constitutional muster. As evidence, no registration law has been struck down to date (that I have heard of anyway).

The government has the ability to levy taxes, which is fine. I buy a pair of shoes and I pay my sales tax. I am free to do so with cash and no ID is shown. If the government wants to tax firearms then let them, just do so in a manner that I am not required to give them my ID.

Here you're referring more to background checks than registration, though the principle applies to both. Again, I think the concept of "undo burden" as another poster pointed out, may apply here. As fas as I know, there's no case law where a background check scheme was struck down - at least on 2A grounds. I know that a sheriff in the West somewhere got part of the Brady Law thrown out because the background check requirement imposed some kind of unfunded mandate - something like that. But the law was fixed and NICS checks remain the law to this day.

So it looks like the courts regard NICS checks and registration as constitutional at the present time.

Some claim that registration is constitutional because it has never been ruled unconstitutional. I disagree, it just means that registration has not been tested in court. Parker tactfully avoided the topic of registration, but it did say that requiring registration and then not offering registration is not constitutional. I think Heller will also do a tap dance around registration but it may just place registration in enough of a legal limbo that any future challenge of registration, on a state or regional level, will be much easier in the near future.

First, thanks for making a proper distinction between matters of opinion and matters of (legal) fact. It makes for a much more interesting conversation. Thank you.

Registration has actually been tested in court a few times. I think Miller touched on it. There, The Court upheld the NFA with its transfer tax and registration requirements intact.

I am also aware of a court decision ruling that prohibited persons (felons, etc.) could not be required to register firearms because for them to do so would constitute self incrimination. (This ruling was idiotic in my opinion, but right now it's the law.) But that same ruling didn't invalidate registration for people that were not prohibited from owning guns - LAC's in other words.

I agree that The Court will probably require DC to re-open its registry so as to allow DC residents to buy, own, possess, and register handguns. But I would be very surprised to see them throw out the registration law entirely.

As another poster pointed out, it is likely that The Court will make the narrowest ruling that they can. This is both to get Kennedy on board (for at least 5 pro-2A votes) and to possibly grab one or two of the liberals (possibly Ginsberg or Stevens) to give the ruling more clout. If they tore up the registration law root and branch, they'd never get a liberal and might well lose Kennedy as well.

And then where does that leave us?

They're gonna be real careful with Heller. It's a "must win" for our side, and the pro-2A justices know it.

 

[gc70]

Maybe I should start a thread titled, "To Heck with the Courts! YOU tell us what the Constitution means!"

Why bother? A substantial portion of the threads in Legal already get pushed in that direction.

 

[yinyangdc]

The problem with relying on the courts is that they often don't refer to the Constitution in making decisions on what the Constitution means.
They make things up (Roe v. Wade, even some who liked the decision agree that it was wrong constitutionally) or they consider other country's laws, or they just twist things (general welfare, interstate commerce clause) beyond all original meaning.

There can be a difference in what the Constitution says and what wierd interpretations we are living under. The OP didn't ask if registration is currently legal, he asked if it was Constitutional. A simple reading (no strange twists and turns), within context of the time it was written leads me to believe that registration is NOT Constitutional.

 

[gc70]

What is registration? What characteristics of registration activities give rise to questions of Constitutionality?

The OP gave the specific example of Michigan, in which the possession of any handgun has to be reported. That form of registration provides comprehensive government knowledge of firearms ownership. It also mandates actions by individuals to provide the information the government desires.

Another type of (quasi?) registration involves partial government knowledge of firearms ownership by collecting sales information from licensed dealers. It seems to me that obtaining information from businesses as a condition of their business license poses different Constitutional questions than compelling individuals to act on government mandates.

 

[legaleagle_45]

Originally Posted by Woody:
The only thing wrong with your statement here is that the prohibition against infringing upon the right to keep and bear arms is that said prohibition only applies to government.

No such modifier is found in the 2nd. It reads... "the right to keep and bear arms shall not be infringed"... not... "the right to keep and bear arms shall not be infringed by the government"

Originally Posted by Woody:
Ergo, only the sales tax is an infringement out of those three examples you gave.

Do you believe that making the New York Times pay income tax just like everyone else is a violation of the 1st Amendment?

Here is the punch line Woody... those same dudes who drafted the 2nd Amend passed a law requiring the inventory of all personally owned weapons, which is functionally equivalent to modern registration schemes. Apparently those dudes did not think they were violating the very amendment they drafted... yet you wish to override their judgment and put your own interpretation on the 2nd and basically tell the people who drafted the 2nd that you know what they meant better than they did. Sorry, does not fly and will not fly in the courts...

 

[IA_farmboy]

There's all different kinds of property. Guns are guns, and real estate is real estate.

Also, you seem to be saying that you think it would be constitutional for the government to seize guns if they provided due process and just compensation. I'm not sure that I would agree. If applied to adult LAC's, that might be a 2A violation. I wonder if there is any case law dealing with confiscation schemes implemented in NYC and CA in the last 20 years or so.

An en masse confiscation is not likely to fall under any kind of "due process" or is it likely to pass eminent domain justifications. Even if the government was to claim due process all of us have a right to a day in court. Any claim of eminent domain to take all of our firearms would constitute theft as the government is only paying us with money they took from us in taxes.

I'm not saying the federal government will seize weapons from everyone. I do however see local and state governments using registries to intimidate people from arming themselves, giving up their weapons peacefully, and justifying locking up the few that aren't so willing to go peacefully.

That brings me to the second point you bring up. There have been cases of people having their firearms taken from them by using information from firearm registries. California declared certain firearms "unsafe" and went about collecting them. (California, under the guise of "safety regulations" and "safety registries", bans and tracks firearms. Anyone with two eyes and two brain cells know this isn't about safety.) A recent assault weapons ban was enacted that resulted in many previously legal firearms being taken without compensation. There was much egg on faces when errors were found in the registry.

Chicago and NYC require certain firearms to be registered. NYC has been known to put people in prison if found with unregistered firearms in the home. Illinois law enforcement have been known to use 4473s to confiscate firearms that were purchased by Chicago residents.

I do not have references to support the claims of confiscation above. I imagine a search of this site will support my claims, I'm too lazy at the moment to do so myself.

Registration has actually been tested in court a few times. I think Miller touched on it. There, The Court upheld the NFA with its transfer tax and registration requirements intact.

Registration has not been tested in court that I am aware of. I would be please if you would provide references to back your claim. As far as I know only the results of registration have been challenged, such as confiscation or denial of purchase, not the registration itself.

 

[ConstitutionCowboy]

No such modifier is found in the 2nd. It reads... "the right to keep and bear arms shall not be infringed"... not... "the right to keep and bear arms shall not be infringed by the government"

You're taking the Second Amendment out of its original context by rewording it to fit your argument. Convenient to your argument, you left out "...of the people...". If it's the right of the people, what's left not to do the infringing is the government.

Do you believe that making the New York Times pay income tax just like everyone else is a violation of the 1st Amendment?

No.

Woody

We the People retain our weapons to the end of securing our rights and freedom for when governments fail or ignore or endeavor to usurp or delete those rights and freedoms. B.E.Wood

 

[legaleagle_45]

Leagleagle is not frankie the yankee

you left out "...of the people...". If it's the right of the people, what's left not to do the infringing is the government.

Irrelevant to my argument. The fact is that there is no modifier that says that the right shall not be infringed BY the government. You added that modifier based upon your own interpretation and not something that is necessarily implicated by the plain wording of the text.... which of course violates your principles of constitutional interpretation (at least as I understand them)

No.

Agreed, and similarly, the payment of sale tax which attaches to every other transaction in goods and at the same rate, doe not violate the 2nd....

I note you did not address my punchline...

 

[frankie_the_yankee]

Originally Posted by frankie the yankee
No such modifier is found in the 2nd. It reads... "the right to keep and bear arms shall not be infringed"... not... "the right to keep and bear arms shall not be infringed by the government"

Woody responds:

You're taking the Second Amendment out of its original context by rewording it to fit your argument. Convenient to your argument, you left out "...of the people...". If it's the right of the people, what's left not to do the infringing is the government.

You ought to read this stuff more carefully. The quote you attribute to me above was actually posted by legaleagle.

Originally Posted by frankie the yankee
Do you believe that making the New York Times pay income tax just like everyone else is a violation of the 1st Amendment?

Woody responds:

No.

Same problem.

 

[frankie_the_yankee]

The problem with relying on the courts is that they often don't refer to the Constitution in making decisions on what the Constitution means.
They make things up (Roe v. Wade, even some who liked the decision agree that it was wrong constitutionally) or they consider other country's laws, or they just twist things (general welfare, interstate commerce clause) beyond all original meaning.

There can be a difference in what the Constitution says and what wierd interpretations we are living under. The OP didn't ask if registration is currently legal, he asked if it was Constitutional. A simple reading (no strange twists and turns), within context of the time it was written leads me to believe that registration is NOT Constitutional.

I agree that the courts sometimes get it wrong, in my opinion.

But as far as the law is concerned, it is the courts, and ultimately, The Court that decides whether something is constitutional or not. What you or I think doesn't matter except when we step into a voting booth.

The OP asks if registration is constitutional. IMO, it clearly is because no registration law has ever been struck down by a court (such that the ruling was sustained on appeal).

THIS HAS NOTHING WHATEVER TO DO WITH WHETHER YOU OR I THINK IT "SHOULD BE" CONSTITUTIONAL. Or whether it represents good policy, or whether it might lead to confiscation.

Today, in the real world, Frankie thinks it is constitutional for the reasons (no contravening case law) noted above.

So far, everyone opining that it is not constitutional is really only saying that they think it SHOULDN'T BE because they believe it to be an infringement. (I'm leaving out purveyors of revealed truth who simply state that it is unconstitutional because they can read or something.)

How could you play a baseball game if every one of the 50,000 people in the stadium thought their opinion on balls and strikes was "revealed truth" and beyond argument? Most likely brawls would break out in the stands throughout the game.

So we have umpires whose job it is to call balls and strikes. Sure, they get it wrong sometimes. But we all agree to abide by what they say so as to allow for game play to flow smoothly (and non-violently). It doesn't stop the fans from having their own opinions on any given pitch or from expressing their opinions, sometimes very loudly. It just allows the game to be played.

And if the games tend to play out in ways the fans don't like (too boring, no action, or too many hits, etc.) they can vote with their feet. The owners and commissioners will see this and make changes. Does the high strike zone produce more entertaining games? Pick umpires who will call the high strike, or tell the existing ones to.

That's just how the system works, and the way it has to work to avoid anarchy.

 

[gc70]

Today, in the real world, Frankie thinks it is constitutional for the reasons (no contravening case law) noted above.

This may be a quibble, but DC's registration law was found to be unconstitutional in Heller. Granted, it was DC's failure to register guns, which acted as a functional ban, that was at the heart of the decision, but the registration law (D.C. Code § 7-2502.02) was technically found to be unconstitutional.

However, it is quite unclear whether other implementations of registration laws would be unconstitutional. As noted in Heller:

Reasonable restrictions also might be thought consistent with a “well regulated Militia.” The registration of firearms gives the government information as to how many people would be armed for militia service if called up.

 

[frankie_the_yankee]

Registration has not been tested in court that I am aware of. I would be please if you would provide references to back your claim. As far as I know only the results of registration have been challenged, such as confiscation or denial of purchase, not the registration itself.

I looked into this a bit and found an interesting case. This is from the NRA-ILA fact sheet.

http://www.nraila.org/Issues/FactSheets/Read.aspx?ID=130

Rock Island Armory was charged with manufacturing "machineguns" in 1987 and 1988 in violation of the registration requirements of the National Firearms Act. In U. S. v. Rock Island Armory, Inc. (773 F. Supp. 117, C.D. Ill. 1991), the chief judge of the U.S. District Court for the Central District of Illinois dismissed those charges because the NFA sections upon which they were based were "without any constitutional basis." The judge noted that the Supreme Court had previously ruled that the NFA`s registration requirement was constitutional only because it was enacted for the purpose of facilitating the collection of tax revenue. Thus, he concluded, because the Hughes Amendment had been interpreted as prohibiting the possession of fully-automatic firearms manufactured after May 19, 1986, the NFA`s registration requirement no longer served its tax collection purpose. The judge said that since "Congress has no enumerated power to require registration of firearms," the constitutional basis for the NFA registration provision no longer existed. The government initiated an appeal of the decision, but later requested that the appeal be dismissed, thus the Rock Island decision stands. In U.S. v. Dalton (960 F.2d 121, 10th Cir. 1992), the U.S. Court of Appeals for the 10th Circuit adopted the Rock Island precedent.

The judge ruled that registration amounting to a ban, such as in the FOPA of 1986 was unconstitutional. But registration for the purpose of levying a tax was OK.

The interesting thing about this is that the ruling still stands, though I would presume that IL has state laws that greatly restrict (probably ban) machine guns so it doesn't do the residents of that part of the state (The Central District) any good.

Note also that the feds didn't appeal. This looks like a tactical move to keep the effective reach of the ruling confined to one corner of IL if possible.

But the 10th Circuit has used the Rock Island case as a precedent in a case where someone accepted a converted (i.e. "newly manufactured") machine as payment for services rendered and did not (because he could not) register it.

BTW, I've read the whole Rock Island decision. It's quite interesting, but way too long to post here. Google it if you're interested in more detail.

So there is apparently case law stating that a registration that is used to ban guns, even machineguns, is unconstitutional at least at the federal level. (Note: NOT at the state level.) But that same case also states repeatedly that the original NFA registration requirement, which involved both essentially "shall issue" registration AND the payment of a transfer tax, WAS constitutional because of COngress' taxing authority.

And note that no where did the court say that taxation amounts to an infringement of 2A rights.

Now isn't this more interesting than to read that, "It's constitutional because I say so and I can read English."?

 

[frankie_the_yankee]

frankie_the_yankee says:
Today, in the real world, Frankie thinks it is constitutional for the reasons (no contravening case law) noted above

.

This may be a quibble, but DC's registration law was found to be unconstitutional in Heller. Granted, it was DC's failure to register guns, which acted as a functional ban, that was at the heart of the decision, but the registration law (D.C. Code § 7-2502.02) was technically found to be unconstitutional. However, it is quite unclear whether other implementations of registration laws would be unconstitutional.

Yes, of course. But this case is on appeal and we don't know how it will come out.

But I think the ruling of the DC Circuit will probably be sustained. Registration that amounts to a ban will be found to be unconstitutional (my prediction).

But I do not think they will go so far as to declare ALL registration laws to be unconstitutional. If it's not a ban (i.e. a closed registry) it will be OK.

Of course when Heller is decided, (favorably as I think it will be), Chicago and its surrounding suburbs will be next on the list. They have closed registries and/or bans on handguns.

 

[ConstitutionCowboy]

To legaleagle 45 and frankie the yankee; my apologies for the name mix-up.

Your omission of "of the people" in your "quote" of the Second Amendment, legaleagle 45, is still disingenuous. The Framers inclusion of "of the people" in that Second Amendment to the document that establishes the Union, grants certain limited powers to that government, and prohibits power in certain other areas pretty much makes it clear the intent of the Framers literally and in intent.

Here is the punch line Woody... those same dudes who drafted the 2nd Amend passed a law requiring the inventory of all personally owned weapons, which is functionally equivalent to modern registration schemes. Apparently those dudes did not think they were violating the very amendment they drafted... yet you wish to override their judgment and put your own interpretation on the 2nd and basically tell the people who drafted the 2nd that you know what they meant better than they did. Sorry, does not fly and will not fly in the courts...

So? That wouldn't have been the first time nor anywhere near the last time they got it wrong; either through negligence or intent.

Got a link to that law? I think you need to post it. After you misquoted the Second Amendment, I can't take your word as fact.

But I do not think they will go so far as to declare ALL registration laws to be unconstitutional. If it's not a ban (i.e. a closed registry) it will be OK.

Of course when Heller is decided, (favorably as I think it will be), Chicago and its surrounding suburbs will be next on the list. They have closed registries and/or bans on handguns.

The 1986 "ban" on new machine guns is the same scenario, is it not? That "ban" could fall along with the DC ban.

For those who wonder about the constitutionality of registration, I'd like to point out that registration of non-NFA arms has been forbidden by the FOPA:

( Federal Law 18 U.S.C. 926 (2) (a)) being: No such rule or regulation prescribed after the date of the enactment of the Firearms Owners Protection Act may require that records required to be maintained under this chapter or any portion of the contents of such records, be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or any political subdivision thereof, nor that any system of registration of firearms, firearms owners, or firearms transactions or disposition be established. Nothing in this section expands or restricts the Secretary's authority to inquire into the disposition of any firearm in the course of a criminal investigation.​

As far as that law goes, it is in support of the Second Amendment. Evidently, Congress agrees with the Second Amendment to some extent.


Woody

 

[frankie_the_yankee]

The 1986 "ban" on new machine guns is the same scenario, is it not? That "ban" could fall along with the DC ban.

The closed registry of post 1986 machineguns could be unconstitutional. In fact, there is case law on this point. See my reference to the Rock Island Armory case above. The US Disctrict Court for the Central District of IL struck the law down. The feds first appealed, but then dropped their appeal. My guess is that they dropped it because they figured they would lose. By dropping it, the ruling's reach was confined to part of IL.

Later, the 10th Circuit Court of Appeals cited the Rock Island Armory precedent in a similar case where a person who accepted a post 1986 converted machinegun in return for services had their conviction thrown out.

So the closed registry in the 1986 FOPA is on shaky ground.

But I do not think it will fall in the Heller decision because The Court seems to be confining the questions it will address to certain elements of DC's laws, the closed registry among them. The FOPA is not on the agenda of the Heller case.

But if DC's closed registry is ruled unconstitutional, as I believe it is likely to be, the closed registry of the FOPA of 1986 looks like an easy "target" (pun intended).

But note that the NFA, which requires registration of machineguns, isn't going anywhere. It is not at issue in any of the above cases or analysis.

The FOPA does ban registration at the federal level. But it is merely a statute and can be amended by the Congress at any time.

And I do not see any scenario where The Court will rule that any "shall issue" registration scheme is unconstitutional - especially at the state level.