In all the messages on this topic, I've not seen discussion
concerning whether gun registration provides a benefit. Mugler v. Kansas
suggests the question what is the public purpose of such a statute and would it
bear a substantial relation to the purpose.
If the purpose is inventory of militia weapons, registration
would be confined to those suitable for use (and perhaps not all of those
since I can't report with two battle rifles, they are my property and you can't
say I have the obligation to maintain both for militia purposes just because I
own more than one).
If the purpose is public safety (registration suppressing
criminal use), the statute would need justification which
seems unlikely. The British and Canadians have not been able to solve
crimes nor keep guns from being used in crime by registration. New
Zealand did register rifles and abandoned that effort in 1983 from lack of
value as concluded by police. Britain went from registering handgun to
banning them from lack of value. In Canada a Member of Parliament
asked the authorities to give him an example of crime solved by the gun registry
and was told there was no example.
I wonder what public purpose might be cited to justify
registration and how that purpose might be defended (in all of this, I'm hoping
that the mere assertion of value would not suffice for the Courts -- maybe a
naive hope these days).
Phil Lee
The courts are not bound by mere forms, nor are they to
be
misled by mere pretence. They are at liberty---indeed, are under
a
solemn duly---to look at the substance of things, whenever they
enter
upon the inquiry whether the legislature has transcended the
limits of its
authority. If therefore, a statute purporting to
have been enacted to
protect the public health, the public morals,
or the public safety, has no
real or substantial relation to those
objects, or is a palpable invasion of
rights secured by the
fundamental law, it is the duty of the courts to so
adjudge, and
thereby give effect to the Constitution. Mugler v. Kansas,
123
U.S. 623, 661.
<snip>
It's probably an argument about what
rules courts should devise in order to implement the constitutional text.
But if that's so, it should be cast in terms somewhat more tenuous than "there
is constitutional authority"; and beyond that, it should explain why these are
the right rules. Is the test that registration is permissible only when it
advances the arming of the militia? If so, why? Is it that
registration is permissible only when it "doesn't impair the use of firearms for
legitimate militia purposes"? If so, then why are the purposes listed
there the "only" ones?
<snip>
