Posted by David Kopel: 7th Circuit Says Gun Registration is OK. Guns at Obama protests: http://volokh.com/archives/archive_2009_08_16-2009_08_22.shtml#1250794427
Last week, the 7th Circuit Court of Appeals decided a case involving the Cicero, Illinois, gun registration ordinance. Full coverage of the decision is available in an [1]article for CBS News, by Declan McCullagh. (And be sure to check out Declan's new [2]Taking Liberties weblog.) The decision is written by Supreme Court short-list Judge Diane Wood. The Wood opinion first cites circuit precedent, accurately, for the fact that the Second Amendment is not incorporated in the Seventh Circuit. The decision goes on, however, to declare that the Second Amendment would not be violated even if it did apply. That portion of the decision has very little reasoning; it simply says that Cicero (unlike D.C., in Heller) does not ban guns. Ergo, the Cicero registration law is constitutional. The Wood opinion quotes some language from Heller, which provided a non-exhaustive list of presumptively constitutional gun control laws. Yet this list, to the extent that it is relevant, cuts against the Cicero ordinance. Included in the Heller list are: "laws imposing conditions and qualifications on the commercial sale of arms." This would suggest that the gun registration system created by the federal Gun Control Act of 1968 would probably be upheld. The gun is registered at the time of sale, and the registration paperwork (the federal 4473 forms) must be retained by the dealer. The forms are available to law enforcement, without need for a warrant, in the course of bona fide criminal investigations. The 1968 GCA was a compromise; it created registration (which was the primary objective of gun control advocates at the time) but had the registration records maintained in decentralized locations (at the dealers) rather than consolidated by the federal government (since Second Amendment advocates worried that centralized registration might one day be abused in order to implement gun confiscation, [3]as it had been under Nazis). Cicero's ordinance, however, goes far beyond registration of "commercial sale," and requires that anyone who simply possesses a gun must re-register it every two years. Accordingly, the Cicero ordinance is not within the scope of Heller's presumptively constitutional laws. The Wood court, if it wanted to provide dicta about the constitutionality of registration, should have provided some legal analysis, rather than merely asserting that the Cicero ordinance was constitutional. (The CBS article explains some other features of the Cicero law; the ban on laser scopes strikes me as almost certainly unconstitutional, and the ban on slingshots seems dubious.) A second issue in the news has been the fact that when President Obama spoke at the Phoenix Convention Center recently, several protestors on the sidewalk outside the center carried firearms openly, as is lawful in Arizona. I've been the Phoenix Convention Center, which is immense. There is no possibility that a person with a gun outside the Center could pose the slightest threat to a person speaking in one of the rooms inside the Center. The White House, commendably, said that the President had no objection to the protesters. However, I think that the protesters probably hurt, rather than helped, the Second Amendment cause. This [4]article in the Christian Science Monitor quotes me to that effect. I did an iVoices.org podcast on the topic, to which I will provide a link when it is uploaded. Finally, shame on MSNBC for dishonestly injecting racism into the controversy, and claiming that the gun carrying may have had "racial overtones." Actually, as Newsbusters has [5]pointed out, the black rifle was being carried by a black man. References 1. http://www.cbsnews.com/blogs/2009/08/19/taking_liberties/entry5253857.shtml?tag=contentMain;contentBody 2. http://www.cbsnews.com/blogs/2009/08/19/taking_liberties/entry5250967.shtml 3. http://www.stephenhalbrook.com/law_review_articles/Halbrook_macro_final_3_29.pdf 4. http://www.csmonitor.com/2009/0819/p02s01-ussc.html 5. http://newsbusters.org/blogs/kyle-drennen/2009/08/18/msnbc-no-mention-black-gun-owner-among-racist-protesters _______________________________________________ Volokh mailing list [email protected] http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
