Is registration constitutional?

[ZeSpectre]

Some interesting points being made here.
Personally I believe that registration is UN-Constitutional. My thinking runs like this. If my right to purchase, own, maintain a firearm depends on registration then someone has just put a limit on that ownership (infringement) because if I am not willing to register then I am prohibited from owning.

It also leave things wide open to "backdoor" bans when someone decides to close the registry (effectively outlawing any further firearms) such as happened (however temporarily) in PA (see this thread)


As far as what mp510 said...

There is nothing that guarantees that any property should be free from registration. I can think of several towns that require bicycles to be registered- a gun is no diffirent, though most towns "respect cyclist privacy rights".

Apples and oranges, bicycle ownership isn't an enumerated right.

 

[frankie_the_yankee]

Personally I believe that registration is UN-Constitutional. My thinking runs like this. If my right to purchase, own, maintain a firearm depends on registration then someone has just put a limit on that ownership (infringement) because if I am not willing to register then I am prohibited from owning.

If you can't own because you are "not willing to register" then it is you that is putting a limit on your ability to buy and own - not the government.

The state is saying (theoretically), "Go ahead. Buy and own as many guns of whatever kind you want. Just register them and you're good to go."

It's quite a stretch to hold that that constitutes an infringement. No court has held that way to this date.

It also leave things wide open to "backdoor" bans when someone decides to close the registry (effectively outlawing any further firearms) such as happened (however temporarily) in PA (see this thread)

Whatever it leaves the door open to only becomes a constitutional issue if the state chooses to go through that door and do something that actually stops people from owning guns.

"Leaving the door open" is a meaningless concept. Legislatures can pass any law they want. It's what they do. They can even pass laws that subsequently are shown to be unconstitutional and overturned. So the "door" is always open.

And if it isn't, they can open it, or cut a hole in the wall and build one if they want to.

And what happened in PA is irrelevent. First of all, they didn't "close the registry". They don't have a registry as far as I know. All they did was shut down the instant check system for a software upgrade.

By that reasoning, (temporary shutdown = infringement) you could say that a law that mandated that retail stores had to close on Sundays was an infringement because you might want to buy a gun on Sunday.

BTW, during this shutdown, people in PA could still buy and sell guns in private sales, right?

 

[ZeSpectre]

Frankie, you make some good points. I'll have to think on this some.

 

[Sage of Seattle]

If you can't own because you are "not willing to register" then it is you that is putting a limit on your ability to buy and own - not the government.

The state is saying (theoretically), "Go ahead. Buy and own as many guns of whatever kind you want. Just register them and you're good to go."

Oh, yeah. "Just put your name on this list or we'll arrest you for owning a firearm because your name isn't on this list." And that's not an infringement, how again?

Saying I am not able to own an item because I do not wish to put my name on a list is taking away my choice. If I want a firearm, I MUST put my name on this list. There's no choice involved.

It's quite a stretch to hold that that constitutes an infringement. No court has held that way to this date.

That's no stretch in my view, regardless of whether or not any courts have decided. In fact, it seems to me that the Supreme Court has gone out of their way to NOT decide anything in relation to the 2nd, and have traditionally ruled that every right is infringeable in some manner. So is registration constitutional? I suppose it would be found so by the USSC.

BTW, during this shutdown, people in PA could still buy and sell guns in private sales, right?

Even FFL's could have made sales during that period, if I remember rightly. Even PA law stated quite clearly that FFL's were not to be held liable if the NICS check went down for more than... don't remember off hand... 48 hours or something? Yet, the "chilling effect" of the FFL's being potentially held liable or even thinking that going to court over it could cost them so much in time and money was very real. A so-called chilling effect has been recognized by the courts in certain circumstances, especially when applied to the practice of our enumerated rights.

By that reasoning, (temporary shutdown = infringement) you could say that a law that mandated that retail stores had to close on Sundays was an infringement because you might want to buy a gun on Sunday.

Yes, that's right. Any crime (a retail store selling a gun on Sunday) that is a victimless crime is an infringement as far as I'm concerned. Are they considered constitutional? Yup. Do I like them? Nope. Do I obey them? Yup.

That's where I stand, and I will agree with Ze on this one -- other than what I pointed out, I agree with what you said and you brought up some good points that I will have to continue to think about.

 

[frankie_the_yankee]

Oh, yeah. "Just put your name on this list or we'll arrest you for owning a firearm because your name isn't on this list." And that's not an infringement, how again?

Because if you do what is required by law, you can keep and bear arms all you want.

Saying I am not able to own an item because I do not wish to put my name on a list is taking away my choice. If I want a firearm, I MUST put my name on this list. There's no choice involved.

Sure there is. You can choose to own the firearm, or not.

Yes, that's right. Any crime (a retail store selling a gun on Sunday) that is a victimless crime is an infringement as far as I'm concerned. Are they considered constitutional? Yup.

I agree.

 

[AirForceShooter]

I guess "Heller" will answer that one.
Here in Florida the State Constitution prohibits registration.

AFS

 

[frankie_the_yankee]

I guess "Heller" will answer that one.

I doubt it. Registration is not among the issues that the Court has under consideration in that case as far as I know.

 

[AirForceShooter]

Thr crux of "Heller is what restrictions can the state put on a citizen owning and posessing a gun. I would think registration would be one of the issues as to what is "reasonable"

AFS

 

[IA_farmboy]

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.

I disagree. I think the purpose of any registration is of the highest importance for determining if it is relevant. What is also important is the punishment for not registering, the requirements to get registered, and what is done with that registry once compiled.

If the stated purpose of the registry is to allow future confiscation then the registration is most certainly unconstitutional. If the stated purpose is to reduce crime then, while it may be constitutional, at least the effectiveness of that registry can be put under scrutiny.

I remember seeing a Youtube video with a guy going on a rant on the New York City gun registry laws. I found that video again and took some notes, this is third-hand information so I doubt it is accurate but for the sake of argument I'll assume it is at least representative of many gun registration laws.

To get a firearm ownership permit (which is what this "registry" has effectively become) one must fill out an application, pay a $350 application fee (with a postal money order, not cash, check, or credit card), and a $150 fingerprint fee (again only a money order will do), supply two passport style photos taken within 30 days, provide the serial numbers and model of all firearms owned, and present all of this personally to the office of the police commissioner. Then you get to wait, because the office has 6 months to "process" the registration. Here's the best part, you get to do this every three years because the permit can not exceed three years.

OK, I lied, here is the best part... IT'S PUBLICLY AVAILABLE. Not only do I find it quite unacceptable that the government feels it needs to know what weapons I own, I find it even less acceptable that any and every one has access to this list.

Can someone explain to me how this registration isn't an invasion of privacy? How is such a convoluted registration process not an infringement? Not every one has the time and money to go through such a process. Having that list open to the public could turn that registry into a shopping list for some crooks.

Oh, I forgot to mention that the punishment for not having registered your weapons is three and a half years in prison. I don't know if that means it qualifies as a felony, which would remove your ability to legally own a firearm in the future, but I imagine trying to register any firearm in the future would bring about extra scrutiny.

Now, about the court case with Heller...
The Parker decision that brought about the Supreme Court case mentioned that the issue over registration is not a concern. What was the concern was the use of registration as a means to deny the legal ownership of functional firearms.

When the case went to the Supreme Court the question put before the court mentioned three parts of DC code. They can be summarized as:
- All firearms in the home are to be rendered inoperable except for LEOs.
- No one may own a handgun UNLESS REGISTERED.
- No one may carry a firearm UNLESS PERMITTED.

It would seem that the registration of firearms is going to be addressed by the Heller case, perhaps not directly but it will be discussed as far as it concerns ownership of functional firearms.

If the Court rules in favor of Heller then it may be difficult to enforce any registration laws. If the ownership of a firearm without registration cannot be punished then it is going to be very difficult to compel people to register their firearms.

What I think is the best part of this case is that the license to carry is put under judicial review. This could make some conceal carry laws difficult to enforce as well.

 

[frankie_the_yankee]

Thr crux of "Heller is what restrictions can the state put on a citizen owning and posessing a gun. I would think registration would be one of the issues as to what is "reasonable"

Nope. The crux of Heller is:

1) Does the 2A affirm an individual RKBA?

and,

2) Can DC ban the possession of functional firearms, including handguns, in one's own home?

It is not to decide what restrictions are "reasonable". And it has nothing whatever to do with registration.

If the stated purpose of the registry is to allow future confiscation then the registration is most certainly unconstitutional.

I might be inclined to agree. But I know of no registration scheme that has that as a stated purpose.

Now a registration scheme that has been closed, such as in DC and Chicago might be unconstitutional because closure constitutes a ban.

But a pure registration requirement such as in MA would not fall into this catagory.

I remember seeing a Youtube video with a guy going on a rant on the New York City gun registry laws. I found that video again and took some notes, this is third-hand information so I doubt it is accurate but for the sake of argument I'll assume it is at least representative of many gun registration laws.

To get a firearm ownership permit (which is what this "registry" has effectively become) one must fill out an application, pay a $350 application fee................

A firearm ownership permit is not the same thing as a registry.

Can someone explain to me how this registration isn't an invasion of privacy?

Maybe someone can and maybe they cannot. But either way, it has nothing whatever to do with whether or not "that" registration, or any other one, is unconstitutional, in my opinion.

How is such a convoluted registration process not an infringement?

The process in NYC may well be an infringement. I happen to think it is. Maybe some future SCOTUS case will overturn those laws and others like them.

But that doesn't mean that any registration scheme is an infringement.

When the case went to the Supreme Court the question put before the court mentioned three parts of DC code. They can be summarized as:
- All firearms in the home are to be rendered inoperable except for LEOs.
- No one may own a handgun UNLESS REGISTERED.
- No one may carry a firearm UNLESS PERMITTED.

The reference to carrying referred to carrying in one's own home, not on the street. The DC law actually prohibits someone from carrying a functional firearrm from one room of your house to another.

It would seem that the registration of firearms is going to be addressed by the Heller case, perhaps not directly but it will be discussed as far as it concerns ownership of functional firearms.

IMO, the most The Court will do is force DC to re-open its registry. They will not do away with it altogether because they don't have to. As another poster pointed out, by doing the minimum, the 4 Originalists stand the best chance of bring Kennedy and possibly one or two of the "living document" crowd along with them. And Roberts likes to get a broad as consensus as he can.

If the Court rules in favor of Heller then it may be difficult to enforce any registration laws. If the ownership of a firearm without registration cannot be punished then it is going to be very difficult to compel people to register their firearms.

I doubt it. See above.

What I think is the best part of this case is that the license to carry is put under judicial review. This could make some conceal carry laws difficult to enforce as well.

The only carrying at issue is within one's own home. None of the appellents is looking to carry a gun on the street, and none has challenged whatever license scheme DC currently has in place for that. So the question of the constitutionality of LTC's is not on the table.

And if it was, I think there is absolutely no way in the world that The Court will impose a VT or AK type system on the whole country. That's no more than a dream, and it's gonna stay that way.

 

[IA_farmboy]

A firearm ownership permit is not the same thing as a registry.

True. When registration becomes a prerequisite for ownership I fail to see the difference.

 

[frankie_the_yankee]

True. When registration becomes a prerequisite for ownership I fail to see the difference.

A registry by its nature invloves a requirement that the item at issue (in this case guns) must be registered. So in that sense it is a requirement of ownership.

But consider two hypothetical registration schemes.

One is a "shall issue" registration system where any person not prohibited from gun ownership (for the usual reasons) can register any gun they buy whenever they buy it. The registration must be issued upon request, similar to the way we register automobiles.

I would oppose such a scheme. I would be concerned that it was merely a precursor to confiscation somewhere in the future.

But I do not think that any court would find it to be unconstitutional.

Now consider a "may issue" registration system where the authorities may or not issue a registration at their own discretion. Let's say they do not believe that your reason for wanting to buy the gun is "good enough". Or let's say that they have come to believe that there are simply too many guns in circulation in their jurisdiction and have stopped issuing new registrations to anyone.

In my view, the constitutionality of a "registration system" like that would be wide open to challenge - Not through Heller but in some future case that maybe cites Heller as a precedent.

 

[IA_farmboy]

A registry by its nature invloves a requirement that the item at issue (in this case guns) must be registered. So in that sense it is a requirement of ownership.

A registry does not mean an item must be registered. A person can buy a car and not have it registered, driving it on public roads while unregistered is likely to get one in trouble though.

A favorable decision for Heller may make registration a "shall issue" and not rule registration as unconstitutional. What a "shall issue" registration does is make registration toothless. The registration becomes pointless if the local governments are required to issue them to everyone.

Imagine this scenario. A crook breaks into a house and is confronted by the armed homeowner. The two exchange gunfire and fall wounded. The police arrive and not knowing who is who grab both, lock them up, and check the firearms with the registry. For the sake of argument we'll assume none of the firearms were registered.

The potential thief is charged with breaking and entering, attempted murder, and possession of an unlicensed firearm.

The homeowner, having been acting in self-defense, is charged only with possession of an unlicensed firearm.

What do you think the two different people will serve as punishment?

I think the crook will get 25 years for attempted murder, five years for breaking and entering, and three years for possession of an unregistered firearm to be served consecutively.

The homeowner is likely to get time served, fifty dollar fine, and be required to register the firearm before it is returned. In other words not much more than a slap on the wrist.

People with their only crime being not registering a firearm are not likely to get much, if any, punishment as long as registration is shall issue. Few are likely to actually register their firearms if punishment is unlikely to occur. This will be especially true for the poor that do not wish to pay any registration fee and choose to take their chances at getting caught.

There might just be a few cities that crack down on unregistered firearms and actually do put people in prison but that policy will be difficult to enforce if some people actually put up a fight and use Heller as a defense.

Registration by itself may not be unconstitutional but any result of that registration is either an infringement of our rights as protected under the Second Amendment (confiscation, "may issue" registration denying lawful ownership, or bans such as D.C.) or our other rights as protected under the Constitution. Rights such as privacy (lists of names, addresses, and valuable items (firearms) available to the public), right prohibiting unwarranted search and seizure (police looking to see if firearms are properly registered and stored), and rights against excessive punishment (lengthy prison sentence for unregistered firearms).

Heller may not make registration unconstitutional but it may make registration unenforceable.

 

[Melissa2006]

Here's an interesting take on the topic:

"If the government issued permits for free speech, would you get in line for one? If your local sheriff was willing to grant you permission to practice your religion - after you passed certain tests, gave your fingerprints and let yourself be photographed, would you apply? If your state allowed you to hold a political meeting, but only if you obtained the proper license and consented to having your name entered in a government database, would you lay your money down?

The proper answer is, "we don't need no stinking permits!" Right?

Then you don't need no stinking permit to exercise your right to own and carry firearms, either. If you ask the government for a permit, you are admitting you don't have a right.” -- “101 Things to Do ‘Til the Revolution”, by Claire Wolfe

 

[frankie_the_yankee]

Then you don't need no stinking permit to exercise your right to own and carry firearms, either. If you ask the government for a permit, you are admitting you don't have a right.” -- “101 Things to Do ‘Til the Revolution”, by Claire Wolfe

Speech is speech, religion is religion, and guns are guns. There is no legal or constitutional reason why the law should treat them as if they were the same thing. People have tried to make this argument a million times, and it doesn't sound any more pursuasive the millionth time than it did the first time.

Regardless of what you or Claire Wolfe might think, in most of this country if you don't ask the government for a permit to carry a firearm, you are probably going to end up doing time in prison.

And you won't get off by citing the second amendment either.

Remember, this thread isn't about what you might think should be constitutional. The OP posed the question of whether or not registration was constitutional.

So far I have seen nothing to indicate that any court would find shall issue LTC's or shall issue gun registration to be unconstitutional.

 

[Melissa2006]

I assert that, to the degree that our human rights are not inalienable, to that degree we have tyranny.

You're telling me what is, which I think is partial tyranny.

I think we're to the point of having an authoritarian dictatorship.

If it gets worse we could see a totalitarian dictatorship.

 

[frankie_the_yankee]

A favorable decision for Heller may make registration a "shall issue" and not rule registration as unconstitutional.

Possible. But initially it will only apply to DC. The Court isn't going to "incorporate" the 2A because it doesn't have to for this case.

But down the road, someone will no doubt challenge NYC and/or Chicago's restrictive or closed registration schemes. And with Heller as a precedent, the handwriting would be on the wall.

What a "shall issue" registration does is make registration toothless. The registration becomes pointless if the local governments are required to issue them to everyone.

Not exactly. Even a shall issue registration is still registration. That means that at some future time, whether 50 or 100 years or more down the road, the government would have the list it needs to confiscate guns.

And that's the bottom line for the gun ban lobby.

That's why we have to oppose registration.

But we should recognize that getting rid of registration (in places that have it now) will require winning in the political arena. The courts are not going to do it for us.

 

[ConstitutionCowboy]

Registration is unconstitutional. Anything that gets in the way of your unencumbered keeping and bearing of arms is an infringement. It matters not what or how seemingly insignificant the encumbrance. Whether I tickle your nose with a feather or bash in your front teeth with a bat, I've touched you. That is the way it is with the prohibition upon government to infringe your Right to Keep and Bear Arms. It doesn't matter if it is the simple writing down who you are and what you own on a piece of paper, or being prohibited to buy a new machine gun.

Woody

Though we may still exercise our Right to Keep and Bear Arms after filling out a bunch of paperwork, the real issue is the unconstitutional infringement the paperwork represents. B.E.Wood

 

[frankie_the_yankee]

Registration is unconstitutional. Anything that gets in the way of your unencumbered keeping and bearing of arms is an infringement.

Like I said, why do we bother with having a Supreme Court when we have you around?

Can you cite any case law to support your assertion? I have never encountered any. So how do you account for the fact that no court, and very few humans of any kind, have agreed with you over the last couple of hundred years or so?

And what will we do when you are gone?

 

[frankie_the_yankee]

I assert that, to the degree that our human rights are not inalienable, to that degree we have tyranny.

What do we do when one human right of ours conflicts with some other human right of someone else?

It happens sometimes you know. How do we avoid tyranny then?

Then there are also occassional conflicts between our rights and some specifically enumerated power of the government.

What then? How do we avoid tyranny then?

Is there any room in your world view for any sort of government at all? If so, what would its constitutional boundaries look like? (And don't bother simply quoting the US Constitution. It is already evident that you believe that our duly constituted judiciary is wrong in how it has interpreted it, or parts of it, pretty much forever.)

Something along the lines of the Planetary Human Rights Project perhaps?

The problem is that whatever judiciary that is charged with interpreting this "project" and resolving conflicts among enumerated powers, rights, etc. is as likely to mess it up (in your opinion) as our current juducuary is (probably) messing up the US Constitution - also in your opinion.

So it has the same problem as the US Constitution - without you to interpret it and/or resolve conflicts, it will probably morph into what you would call tyranny.

BTW, the original post posed the question of whether or not registration was constitutional - not whether or not you thought it was a form of tyranny. Cowboy may strangely believe that he has a unique insight into revealed truth, but at least he is sticking to the question posed in the OP.

You seem to be having a problem with it.

 

[ConstitutionCowboy]

Hi Frankie! I thought you might have been missing me!

Here is case law supporting my assertion:

"It is contended, that this article of the code, is in violation of the constitution of the United States, and of this state. The clause in the constitution of the United States, that it is said to be in violation of, is the 2d article of the amendments: "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." O. & W. Dig. 7. The clause in the constitution of this state, which it is said to violate, is the 13th section of the bill of rights: "Every citizen shall have the right to keep and bear arms, in the lawful defense of himself or the state." O. & W. Dig. 14.

The object of the clause first cited, has reference to the perpetuation of free government, and is based on the idea, that the people cannot be effectually oppressed and enslaved, who are not first disarmed. The clause cited in our bill of rights, has the same broad object in relation to the government, and in addition thereto, secures a personal right to the citizen. The right of a citizen to bear arms, in the lawful defense of himself or the state, is absolute. He does not derive it from the state government, but directly from the sovereign convention of the people that framed the state government. It is one of the "high powers" delegated directly to the citizen, and "is excepted out of the general powers of government." A law cannot be passed (p.402)to infringe upon or impair it, because it is above the law, and independent of the law-making power." - Texas Supreme Court Decision, Cockrum vs State of Texas, ---- 1859​

When I'm gone, you'll be on your own. Better pay heed while you can.

Woody

Oh yes, and buy those arms you've always wanted and a goodly stock of ammo. The time may come that all we'll have is how we've prepared ourselves today. B.E. Wood

 

[frankie_the_yankee]

1) The case you cite has nothing to do with registration of firearms. It concerned itself with a homicide/manslaughter committed with a Bowie knife.

2) Then, let's look at the article of code the court is referring to. It was described in the paragraph just before the ones you quote. It's a wonder you ommitted it.

After charging the law generally upon the subject of manslaughter, the court below added, that, "if, however, the jury believe that the defendant is guilty of manslaughter, as above defined, but that the act was done with a bowie-knife, or dagger, they will consider the act murder." This was given in compliance substantially with article 610 of the code: "If any person be killed with a bowie-knife or dagger, under circumstances which would otherwise render the homicide a case of manslaughter, the killing shall nevertheless be deemed murder, and punished accordingly."

So your citation merely refers to a law that provided for an enhanced penalty for a homicide committed with a Bowie knife, and that the court believed to be invalid or unconstitutional.

3) Despite the high-sounding portion of the opinion that you quote, you should know that Bowie knives are not allowed to be carried in TX to this day. The law banning this has never been overturned. And in the 1870's TX passed a law against carrying handguns that was also never overturned by any court.

If you read the whole opinion, you will see that it doesn't support your position in the least.

I'll include the link in case others want to wade through it.

http://www.cs.cmu.edu/afs/cs.cmu.edu/user/wbardwel/public/nfalist/cockrum_v_state.txt

Isn't it cold out there? Why not just hop back over the fence and join us in the real world?

 

[Art Eatman]

First off, it doesn't matter if registration is constitutional or unconstitutional: All registration systems have eventually been followed by confiscation. So, we keep fighting.

Given our structure of law, however, with the only real confiscatory system via an eminent domain style of taking, the government cannot afford the cost. IOW, the government cannot arbitrarily take without paying; it must buy.

So far, we've fought off registration at the federal level. That was part of the political warfare during the run-up to GCA '68 that was staved off by the NRA.

Now? Odds are that the cost of registration makes it politically dead. We have the Canadian example as recent history. Doesn't mean we don't have to keep fighting, of course. Part of our deal is keeping the memory of the 1994 elections alive, as well as l'affaire Zumbo.

 

[frankie_the_yankee]

First off, it doesn't matter if registration is constitutional or unconstitutional: All registration systems have eventually been followed by confiscation. So, we keep fighting.

Agreed.

It's just that that was the question in the OP.

FWIW, I don't much care for 4473's and the so-called "forward trace" process. BATFE has nearly all the data they need to create a defacto federal registry right now. And in case some do not realize it, furthering this process is the real, yet unstated, reason for efforts to close "the gun show loophole". The true object is to end all private transfers, which would fill in all the blanks in the current BATFE database.

Thus we would have "backdoor" registration.

 

[Melissa2006]

"The right of a citizen to bear arms, in lawful defense of himself or the State, is absolute. He does not derive it from the State government. It is one of the "high powers" delegated directly to the citizen, and 'is excepted out of the general powers of government.' A law cannot be passed to infringe upon or impair it, because it is above the law, and independent of the law-making power." 24 Tex. 394 (1859)

"The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such only as are used by the militia, shall not be infringed, curtailed or broken in upon, in the smallest degree;...any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right..." 1 Ga. 243 (1846)

By the way, how do I get the quote feature to work here???