Is registration constitutional?

[Deavis]

Depends on if they can prove a nexus to interstate commerce, after all that is where the government derives its power

If they get a chance, they'd pass an amendment making it constitutional but that doesn't mean it would be morally superior than, say, an amendment regulating what liquids you can ingest legally.

Gun-free school zones are still with us, but at least they don't hide behind the Commerce Clause to justify their existence.

I believe after Emerson the law was repassed using the standard wording, "Any gun that has travelled in or could affect interstate commerce..." The law simply hasn't been challenged again, but I could be wrong.

 

[mp510]

Well, an "inherent right" to engage in interstate commerce is debatable, IMO probably more than the "right" to keep and bear arms, since one of them is explicitly enumerated and the other one isn't. What's not debatable is that Congress has the Constitutional authority to regulate interstate commerce.

Point well made, I see where your coming from. I drew my inherent right claim from Simeon Baldwin's November 1908 Harvard Law Review Article "Federal Taxation of Interstate Commerce" where he wrote that concept nearly verbatim

that to engage in interstate commerce is an inherent right of every American

And I stand behind my opinion that it's a useless, unreasonable restriction, and a malicious precursor to mass confiscation.

I agree with you 100% there. I believe that gun registration is beyond abominable- no need to try and convince me otherwise. My point from the begining was merely to illustrate that within the a previous interpretation of the Constitution, which could easily be again applied, gun registration could in itself be Constitutional. While facially benign, it is not necesarily the undertones that the Court would base its ruling on. If you are familiar with
United States v. Dumas (Eastern District of Washington IIRC, either 1994 or5- I don't have the case in front of me at this second) you will realize that courts look for what is present, not presumptions, not what may be undertones- intended or otherwise. Dumas made a very good correlation=causation case for harsh crack legislation violating the equal protection clause of the fourteenth ammendment on the premis that despite being facially neutral crack cocaine laws unfairly targeted blacks (he was also appealing his sentence under 8th ammendment rationale as well). He cited that in the Eastern District of Washington blacks comprised 1% of the general population yet were the target of 91 (or 2)% of federal crack traficking prosecutions with very similar prosecution rates nationally. The District appeals court, naturally and rightfully rejected the appeal, on the basis that there was no substantiation to unjustly target any specific racial group with the law- the numbers and facts just didn't necesarily support the petitioner's "theory"- there could be benign explanations for the law being more strict against crack posessors than powder users. In reality, we recognize that the rationale for the strict crack legislation was the result of congress attempting to put an end to violent crime (particularly robberies and turf wars) associated with crack users and crack distribution- there was no congressional conspiracy to ensure the incarceration of blacks- though it could easily be made to look like there was.

 

[mp510]

I believe after Emerson the law was repassed using the standard wording, "Any gun that has travelled in or could affect interstate commerce..." The law simply hasn't been challenged again, but I could be wrong.

The "could affect interstate commerce" concept isn't new- I can cite cases dating to the 1940's that used that rationale- in an even more convoluted manner

Wickard v. Filburn (317 us 111: 1942) allowed the federal government apply quotas (and levy assesments on excess) on the production of wheat, even that which was produced for local use (sustinance production with some local sale of a very limited quanitity of excess, in the customary manner), since that production COULD possibly compete with interstate commerce. The same concept was applied against the women in California who were growing medicinal marijuana for personal consumption (and just to think- there shouldn't be any interstate commerce to compete with, considering that marijuana traficking is illegal). Given the continued use of the concept, I doubt it will go away any time soon.

 

[v35]

I believe after Emerson the law was repassed using the standard wording, "Any gun that has travelled in or could affect interstate commerce..."

Yup, that one really boggles, since it asserts that the gun sprouts legs, transports itself, then goes about affecting interstate commerce. I might as well try to comprehend how our laws of physics apply would apply to the region beyond our known universe. I haven't tried. A man's gotta know his limitations, and to me understanding this interpretation must require the use of illicit substances or something.

Concerning Wickard v. Filburn, that's another one that boggles, since a man was penalized for doing something that he could have done but didn't. At least that case addressed the consequences - or in his case potential consequences - of the actions of a human being. Who didn't actually, um, act.

Come to think of it, I suppose these justices would have done quite well as theoretical physicists.

 

[frankie_the_yankee]

Redtail writes.........

Registration is unconstitutional.

Who needs the Supreme Court when we have you around?

What I have noticed is that except for a case or two involving self-incrimination, no court has held a gun registration scheme to be unconstitutional to this date.

And no court has ever done so on 2A grounds.

So it looks to me that registration is constitutional. But that's just my opinion.

And so that no one wastes bandwidth mis-stating my position, let me say that I am opposed to gun registration.

I am opposed to gun registration.

I am opposed to gun registration.

I believe it's only real purpose is to pave the way for eventual confiscation.

I believe it's only real purpose is to pave the way for eventual confiscation.

I believe it's only real purpose is to pave the way for eventual confiscation.

I am opposed to gun registration.

I am opposed to gun registration.

Have we got that straight?

 

[Megistopoda]

Constitutional? Debatable. Agreeable? Absolutely not. Follow this story of a friend of mine, who happens to live in Chicago where registration of firearms is mandatory:

___________________________________

After following the same procedure that successfully led to registering 5 other firearms, my 6th was rejected for:

A review of your application and the records maintained by the Chicago Police Department indicate that you are ineligible to register the below referenced firearm. Pursuant to Chapter 8-20 of the Municpal Code of the City of Chicago, your firearm registration(s) are denied for the following reason:

---- A registration certificate was not obtained prior to the applicant taking possession of the firearm in violation of 8-20-090. (filing time).

Pursuant to the Municipal Code Section 8-20-130, you may file a written request for hearing before the Mayor's License Commission. This request for hearing must be made in writing or by fax within 10 days after receipt of this notice..

The cited Chicago Municipal Code is:

8-20-090 Filing Time

(a) A registration shall be obtained prior to any person taking possession of a firearm from any source.

This was for my M1-Garand that was shipped to my house by the CMP. Until I had possession and could determine the serial number there was no way to fill out a registration form which requires the serial number along with the purchase date. How can I file a registration without knowing the purchase date, which by their law would be in the future?

 

[Sage of Seattle]

I am not in favor of book registration, but I am not convinced that recording what books one owns infringes any right to actually own them. And I am not convinced that the constitution guarantees you any right of absolute secrecy in your affairs.

I'm not sure the issue is the actual possession of the books, but what the government wants to do with the information. In the arena of books, libraries for example are having their lists of books checked out handed over to the gov't. Why would it matter what books a person reads? I dunno, go ask the feds. Do people care? Not many. Same with guns. Most people really don't care, but why should the gov't get this information in the first place?

I have yet to see a compelling, legitimate need for this kind of information. If it's for a criminal investigation, get a warrant. Phone taps, library records, other data mining....

Fourth Amendment all the way. The feds have to show why they need it -- I don't have to show why they don't.

 

[ServiceSoon]

I respect your opinion sir, but I respectfully disagree. You might as well tell me I have to register my iMac before it can be used to exercise my first amendment rights. Registration of it could only serve to make it easier to confiscate if I were to use it to disseminate anti-government propaganda.

At best registration serves no useful purpose, and there is no limit to the potential malicious use of its data. I'm not bullheaded, but unless you can convince me of a reasonable benefit to registration, it's not a reasonable regulation at all.

IMHO.

I didn't structure that sentence very well. I agree with you. I said that because the word reasonable seems to be the logical explanation for all gun regulation. It's not consitutional, but it is reasonable. Do you understand what I meant to say?

 

[v35]

I said that because the word reasonable seems to be the logical explanation for all gun regulation. It's not consitutional, but it is reasonable. Do you understand what I meant to say?

I understand. As much as I don't like the idea of registration, it might in fact be held constitutional should a challenge to it arise in Federal court, in the same manner that having to apply for a permit to stage a protest march might not infringe upon one's First Amendment rights to peaceably assemble.

Registration is a bad idea. Fortunately, the First gives me the right to say that.

 

[kurtmax]

Personally, the only registration that I feel is acceptable is militia based. IE, the government has a record of the weapon you will use if the militia is mustered (yeah... lol). No other personally owned weapons or such would I find acceptable.

Since the government doesn't really rely on militas anymore, I find any registration to be wrong...

 

[frankie_the_yankee]

kurtmax writes:

Since the government doesn't really rely on militas anymore, I find any registration to be wrong...

I agree. But that wasn't the question. The question is whether or not registration is constitutional, not whether it is right or wrong.

I believe that it is constitutional and also that it is wrong.

 

[cyclist]

So, reading and skimming some of the replies it appears that even though Registration has not been declared Constitutional, it has also not been declared unconstitutional. The dreaded double-negative requirement, until the double negative is applied then registration will apparently continue until challenged.

Oh well. One reverse step at a time. Walking backward into the dawn of time.

 

[frankie_the_yankee]

So, reading and skimming some of the replies it appears that even though Registration has not been declared Constitutional, it has also not been declared unconstitutional. The dreaded double-negative requirement, until the double negative is applied then registration will apparently continue until challenged.

IMO I believe it will continue after it is challenged, if it ever is.

That's because, again, in my opinion, I do not see anything in the Constitution that precludes registration. I think that the Court would not regard registration as an infringement of the 2A RKBA.

I still oppose it, mind you. My belief is that it serves no purpose other than to pave the way for confiscation. And there is plenty of historical evidence to support that.

But I do not see where it is unconstitutional. So I think it would survive a challenge.

 

[cyclist]

Some registrations are apparently mearly (sp?) recordkeeping,
but other registrations are a process to grant permission. I believe the registrations that are a front for granting permission (NYC for example, and Michigan for pistol purchases, and Illinois for general purchases with their FOID card scheme if Iunderstand their process correctly) are the registrations that will need to be challenged.

Is this how you view it as well?

 

[ServiceSoon]

Isn't registration the same as granting a license to do something?

 

[USAFNoDAk]

V35 wrote:
Yup, that one really boggles, since it asserts that the gun sprouts legs, transports itself, then goes about affecting interstate commerce. I might as well try to comprehend how our laws of physics apply would apply to the region beyond our known universe.

Since God transcends state lines, I guess the Interstate Commerce Clause allows the federal government to regulate God and religion as well. The heck with the first amendment. Regulate religion and churches, and tax them under the interstate commerce clause. It's all for the "Chillren", anyway.

And now, back to your regularly scheduled programming, or deprogramming, as the case might be.

 

[frankie_the_yankee]

Some registrations are apparently mearly (sp?) recordkeeping,
but other registrations are a process to grant permission. I believe the registrations that are a front for granting permission (NYC for example, and Michigan for pistol purchases, and Illinois for general purchases with their FOID card scheme if Iunderstand their process correctly) are the registrations that will need to be challenged.

Is this how you view it as well?

Yes. But I think it is unlikely that the Court will ever rule registration schemes to be unconstitutional except for those that morph into gun bans like in DC.

Registration itself, freely available, does not seem to have a constitutional problem in my view.

 

[frankie_the_yankee]

Isn't registration the same as granting a license to do something?

It can be. But I don't see the Court ruling licenses as unconstitutional as long as they are freely available.

Parade permits are constitutional for instance.

It's when licenses, or registration requirements, morph into general bans that they become candidates to be overturned, in my opinion.

 

[ServiceSoon]

It can be. But I don't see the Court ruling licenses as unconstitutional as long as they are freely available.

Parade permits are constitutional for instance.

It's when licenses, or registration requirements, morph into general bans that they become candidates to be overturned, in my opinion.

Definition of license:
1) Official or legal permission to do or own a specified thing.
2) A document, plate, or tag that is issued as proof of official or legal permission.

Do we need permission to bear arms?

Quote of the daY:"When liberty becomes license, dictatorship is near" (Will Durant).

 

[frankie_the_yankee]

Definition of license:
1) Official or legal permission to do or own a specified thing.
2) A document, plate, or tag that is issued as proof of official or legal permission.

Do we need permission to bear arms?

According to the way I read the Constitution and the law, yes.

Remember, this thread is not about what should be. It is about what is.

 

[IA_farmboy]

I recently read an interesting interpretation of the following sentence:

A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.

The definition of "keep" can refer to either upkeep and repair, or the possession, of an item. So to keep, as in upkeep, would mean that one can not be restricted from maintaining arms so to assure proper function. Also to keep, as in retain possession, would mean that one cannot have arms removed from one's possession by the government.

To bear arms would mean that the government cannot restrict one from carrying arms on their person.

What struck me after reading that analysis is that the Second Amendment says nothing about the government being restricted from barring one from taking possession of arms. So, while the government may not take arms from you it could be interpreted that the government can prevent you from obtaining arms in the first place.

That seems rather silly once taken to it's conclusion. If you should obtain arms through illegal means (begged, bought, or stole arms without government permission) then the government would not be able to take those arms from you under the constitution.

If the government cannot take arms from you then it would follow that they cannot also bar you from taking possession of arms. Or am I just confused?

This is where I get to registration. If the government is barred from taking your arms what other reason do they need to have a registry of those arms? Is it so the weapon can be returned to you if stolen? If so, then the government should be taking registry of all of my possessions.

As it is now the government does take registry of some of my possessions. It tends to be items that the government likes to tax. I register my car but the registration is only required if I choose to drive it on public roads. Conditions of that registration is that the vehicle be fit for travel.

What if I choose not to register my arms? What are the conditions that I am required to register? What is the punishment for not registering my arms? As the government is barred from taking my arms under the Second Amendment the punishment for not registering my arms cannot be taking the arms from me. I suppose I could be fined for not registering my arms, but what if I do not pay the fine? Would I be imprisoned? How is confinement any different than removing my arms from me?

So, after thinking this through, I don't see how registration of arms is constitutional.

 

[frankie_the_yankee]

If the government cannot take arms from you then it would follow that they cannot also bar you from taking possession of arms. Or am I just confused?

You're confused.

The government certainly can take arms from you so long as it follows due process. It's no different than the way the government can restrict your freedom of movement when you're convicted of a crime (with due process) and sentenced to prison.

Prisoners are not allowed to have guns. Convicted felons are not allowed to have guns. No court has held that these laws are unconstitutional. So in the here and now real world, they are the law of the land.

Registration of guns takes nothing. Registration itself does not stop one from either keeping or bearing arms. So I do not see any grounds for holding registration to be unconstitutional.

And of course the only real purpose of registration is to pave the way for confiscation. Everyone knows that. That's why I am opposed to it.

Confiscation would be unconstitutional IMO. But not registration alone.

 

[ServiceSoon]

If I am required by law to aquire a permit or register my personal firearm(s) before I can take possession, isn't that an infringement on my right to bear arms?

 

[Redtail]

No sir, I am not the supreme court.

If the SC says it's constitutional, does that make it constitutional even though it is contradicting the constitution itself?

What is the sole purpose of registration? That's the question that need to be ask first.

http://www.lewrockwell.com/gutzman/gutzman10.html

 

[frankie_the_yankee]

If I am required by law to aquire a permit or register my personal firearm(s) before I can take possession, isn't that an infringement on my right to bear arms?

Not necessarily. If nothing in the process prevents you from keeping and bearing arms, one could argue that it is not an infringement.

No sir, I am not the supreme court.

Glad we cleared that up.

If the SC says it's constitutional, does that make it constitutional even though it is contradicting the constitution itself?

It makes it the law of the land for the present time.

We can't have 300 million people individually deciding whether something does or doesn't "contradict" the Constitution. That would be anarchy.

So all we can do is have opinions about it. (And vote, etc.)

What is the sole purpose of registration? That's the question that need to be ask first.

Maybe. But it is also a question for a different thread.

BTW, so no one gets the wrong idea, I am personally opposed to registration, mostly for the reason that Redtail cites above. It's primary purpose is to pave the way for confiscation at some future time. No matter how they dress up that pig, it doesn't change that fact.

But as I said, that's for another thread.