I've received an enormous amount of flak from certain people that perceive my remarks about mandatory gun registration being stupid but constitutional as heresy. (Yes, I chose that word carefully. The reactions that I have received in email make it sound like Stephen Halbrook and I are greater threats to gun rights than the Violence Policy Center.
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Well, eternal paranoia is the price of freedom. We *have* been watching you two for a while. Suspicious signs like drinking white wine....
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One point raised in these discussions, before I decided to add this bunch to my spam filter, was the question of what types of mandatory gun registration laws infringe on the Second Amendment. Accepting for the moment the notion that the Second Amendment protects an individual right (there being only about 90 or so state supreme court and federal court decisions taking that view), certainly, laws that criminalize possession of an unregistered gun could be said to "infringe" on that right, because they deny gun ownership for reasons other than criminal misuse, or reasons to suspect that the owner might misuse a gun.
A mandatory registration law, however, might simply provide for police to register the serial number of any unregistered gun found in private, otherwise law-abiding hands, in the course of an investigation. Such a law would not infringe on the right to own a gun. Mandatory registration through licensed dealers could be justified through the Constitution's interstate commerce clause (which I believe is how the current licensing of gun dealers is justified).
Anyone care to add their two cents in on this issue? There are probably some arguments under that right of privacy hiding under the Ninth Amendment inkblot for overturning a mandatory registration law.
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This is all sorta "pie in the sky" at this point. Assuming pure registration ... no limits on purchase, no advance permit, just registration .... yeah, I could formulate an argument that it's violative, but odds of winning can be expressed as fractions of a percent. I think Dave Kopel once made an analogy to requiring registration for exercise of first amendment freedoms. But (1) we have no basis to assume that second amendment tests would exactly parallel those of the first and (2) you can register some first amendment actions. Election expenditures. Political contributions. Demonstration permits if held on public lands. The exception in the NAACP case was based on its fact -- a very appreciable risk of reprisal against members if their identity was known.
In short -- who knows? And it's a bit early to start the debate anyway.
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We also know that ex-felons are exempt from mandatory firearms registration because of Haynes v. U.S., unless the registration scheme is appropriately sanitized to prevent this information from being used for pursuit of the ex-felon. Could an equal protection argument perhaps ______ [snip]
Also, it matters how the statute is written. Haynes was a wierd part
of NFA 34. NFA is an excise tax, so the question was how to register
guns sold *before* the tax was imposed. Congress, if I rememember,
just put in a clause that anyone who hadn't registered and paid tax
had a continuing duty to register.
In 1934 that amounted to "register everything." But by 1968, it
amounted to "register all illegal guns" which of course meant you
could be prosecuted for failure to confess to illegal ownership.
They changed it to essentially be you must register *before*
taking possession, and cannot legally take possession until approved.
No fifth amendment problem now. At the time you must register, you
don't yet have possession and even if rejected have not yet broken
any law.--
