Posted by Eugene Volokh:
The Right To Keep and Bear Arms in Self-Defense and Government Tracking
Regulations:
http://volokh.com/archives/archive_2009_04_05-2009_04_11.shtml#1239369197
In this post and the two that surround it on this chain, I continue
blogging excerpts from my [1]Implementing the Right To Keep and Bear
Arms for Self-Defense: An Analytical Framework and a Research Agenda,
which is forthcoming in a few months from the UCLA Law Review. But I
particularly focus on analogies between the right to keep and bear
arms and other constitutional rights, when it comes to waiting
periods, taxes and fees, and government tracking regulations. Such
analogies are often drawn, but usually between the right to bear arms
and just one other right. I try to avoid cherry-picking my favorite
rights to compare with, and instead look to how courts have dealt with
similar questions as to a wide range of rights, including free speech,
voting, abortion, and property rights.
The article is quite long, so I thought I�d just blog some excerpts;
if you�re interested in the broader framework the article discusses (a
framework that separates the inquiry into the scope of the right based
on its text, original meaning, and history, the burden that the
restriction imposes on the right, the reducing-danger arguments for
the restriction, and the government�s proprietary role [if that�s
present]), please follow the link. Also, please remember: Not all
unwise laws are unconstitutional laws, even where constitutional
rights are potentially involved.
* * *
Government tracking regulations -- nondiscretionary licensing regimes
either for possession or carrying, instant background checks,
registration requirements, serial number requirements, requirements
that guns be test-fired and the marks they leave on bullets recorded,
or requirements that all new semiautomatic guns must �microstamp� the
ejected brass with the gun�s serial number -- generally don�t by
themselves substantially burden self-defense. If the regulations
contain some restrictions, such as waiting periods, fees, or denials
of licenses to certain people (either as a class or in government
officials� discretion), those might be substantial burdens. But the
tracking regulation itself is not much of a burden on self-defense: A
person is just as free to defend himself with a registered gun as he
would be if the gun were unregistered.
In one high-profile constitutional law area, such requirements are
indeed forbidden: Most speakers don�t need to get licenses, or
register their speech, or submit their typewriters for testing so that
their anonymous works can be tracked back to them. Likewise, tracking
requirements for abortions would likely be unconstitutional.
But this is not the normal rule for constitutional rights. Even
speakers may sometimes need to register or get licensed. Parade
organizers may be required to get permits. Ballot signature gatherers
may be required to register with the government, and so may
fundraisers for charitable causes, though such fundraising is
constitutionally protected. People who contribute more than a certain
amount of money to a candidate may be required to disclose their
identities to the candidate, who must in turn disclose those
identities to the government; lower courts have held the same as to
people who contribute to committees that support or oppose ballot
measures. The contribution disclosure requirements have been judged
(and upheld) under a moderately strong form of heightened scrutiny;
the other disclosure requirements have been upheld even without strict
scrutiny.
Likewise, the Constitution has been interpreted to secure a right to
marry, but the government may require that people get a marriage
license. The Takings Clause bars the government from requiring people
to leave their land unimproved and thus valueless, but the government
may require a building permit before improvements are made.
People have a right to vote, under all state constitutions and, in
practice, under the federal Constitution, but they may be required to
register to vote. Whom they voted for has been kept secret, at least
for a hundred years, but whether they voted and what party they belong
to is known to the government, and is often even a matter of public
record. Many of these requirements are instituted to prevent crime
(chiefly fraud) or injury (such as the injury stemming from unsafe
construction).
This of course leaves the question of what the right to bear arms is
most like: those rights for which government tracking can�t be
required, or those rights for which it can be. I�m inclined to think
that it is more like the trackable rights, and that it is the
untrackable rights that are the constitutional outlier.
The rule barring licensing requirements for many kinds of speakers is
in large part historical, stemming from an era when such licenses were
discretionary and used to control which viewpoints may be expressed.
It persists largely because of a continuing concern that some
viewpoints may be so unpopular with the government or the public that
people who are known to convey those viewpoints will face retaliation.
Even so, some kinds of speakers may have to identify themselves to the
government, when the speech poses serious concerns about fraud or
corruption. The same worry about retaliation, coupled with a
longstanding tradition of privacy of medical records, likely provides
the cause for the no tracking rule for abortions.
Gun owners as a group have faced some hostility from the government
and the public, but gun ownership is very common behavior, and there�s
safety in numbers: It seems unlikely that the government will
retaliate against the tens of millions of gun owners in the country,
who represent 35 percent to 45 percent of all American households. Gun
carrying is both rarer and, if required to be done openly, more likely
to viscerally worry observers. But mere gun ownership, if disclosed to
the government rather than to the public at large, is not likely to
yield a harsh government reaction, and registration requirements are
thus unlikely to deter ownership by the law-abiding. (I set aside the
question whether making gun ownership or concealed carry license
records public under state open records acts might be
unconstitutional.)
It�s true that certain kinds of guns are rare and especially
unpopular. But as I�ve argued above, the right to bear arms in
self-defense should be understood as protecting a right to own some
arms that amply provide for self-defense, not a right to own any
particular brand or design of gun. (In this respect, it differs from
the right to speak, which includes the right to convey the particular
viewpoint one wishes to convey. Many kinds of arms are fungible for
self-defense purposes in a way that viewpoints are not fungible for
free speech purposes.)
It is not impossible that the government will want to go after gun
owners, chiefly to confiscate their guns. This could happen if the
government shifts to authoritarianism, and thus doesn�t care about
constitutional constraints and at the same time wants to seize guns in
order to diminish the risk of violent resistance. Or it could happen
if a future Supreme Court concludes the individual right to bear arms
is not constitutionally protected, and Congress enacts a comprehensive
gun ban. Some have argued that the Free Speech Clause ought to be
interpreted from a �pathological perspective,� with an eye towards
creating a doctrine that would serve free speech best even in those
times when the public, the government, and the courts are most hostile
to unpopular speakers. Should the Second Amendment be interpreted the
same way?
Here we may be getting to a topic that�s outside the scope of this
Article, because it requires us to think about whether the Second
Amendment retains a deterrence-of-government-tyranny component as well
as a self-defense component. I�m inclined to be skeptical of the
ability of either constitutional doctrine or private gun ownership to
constrain the government in truly pathological times. I�d like to
think that either or both would provide a material barrier to such
pathologies, but I doubt that this would in fact be so, especially
given the size and power of modern national government. Nonetheless,
figuring this out requires thinking through the
deterrence-of-government-tyranny rationale, something I have not done
for this Article.
For now, I�ll leave things at this: The tracking requirements likely
don�t themselves impose a substantial burden on the right today. Such
tracking requirements aren�t generally unconstitutional as to other
rights, though they are sometimes unconstitutional as to some rights.
And the key question is the extent to which current doctrine should be
crafted with an eye towards a future time when the doctrine or
government practice may be very different than it is today.
References
1. http://www.law.ucla.edu/volokh/2am.pdf
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