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June 19, 2003

Revisiting The Third Rail

A while back, during the thick of the mystery surrounding the Maryland sniper attacks, I wrote my one and only post dealing with gun control, coming out more or less in favor of gun registration, with some reservations.

What got pointed out in the comments to that post, which are sadly lost to time and YACCS, was that the power to compel gun registration leads to the power to deny gun registration, effectively banning gun ownership by means of bureaucratic finagling rather than by passage of a law or laws and the concomitant firestorm that would attend them. I'm fairly sure that Kim du Toit was one of the commenters who pointed this out, as he does here. I think there is a real-life illustration of this situation as well, but I can't find it at the moment.

The argument struck me as fairly cogent, so I assigned the task of solving registration/denial of registration riddle to the subconscious and went on my merry way.

The subconcious works on its own time, so I can't say I was real surprised when the following bubbled to the surface while I was rocking Scotty M. back to sleep in the wee hours of the morning.

What if gun registration was enshrined as constitutionally inalienable right, perhaps with a revised second amendment? Say, something along the lines of:

An armed citizenry being necessary to the security of a free state, the right of the people to keep, bear and register arms, shall not be infringed; nor shall any records of firearms ownership be kept above state level.

It's little clunky, the second part especially so, but it's there to address another argument against gun registration that Kim du Toit covers, namely that if the government knows who the gun owners are, it will eventually come after them.

One of the basic disadvantages of the State knowing who is armed and who isn't, is that the State knows who has to be disarmed, if they are to impose any kind of tyranny. The Weimar Republic in 1920s Germany imposed universal gun registration, largely in an attempt to control the gangs of political thugs (Nazi, Communist, Socialist, Spartacist, whoever) roaming the streets. The German people, being largely a law-abiding lot, complied. When the Nazis came to power, one of their first acts (in 1933, as I recall), was to begin disarming the German people, most especially the Jews -- and we all know how that turned out eventually.

The U.S. government disarming gun owners, forcibly or not, preparatory to an act of tyranny is not something that strikes me as especially likely, but that doesn't mean that the potentiality of such an action shouldn't be addressed. I'm hoping that the second clause, unpoetic as it is, would adequately prevent such a consequence.

There are lots of arguments that could be made against attempting to alter the Constitution with an amendment such as this, especially as this particular point in history, and the wording could surely be improved. A number of lawyers frequent the site, (by which I mean there are more than two) so they could probably tighten up the language were they so inclined.

What I'm interested in is the philosophical reaction to the idea of trying to deal with gun registration issues through something like the above, from both pro and anti-gun control points of view. What's wrong with the proposed amendment? How would you rewrite it, remembering that future Supreme Courts would likely place a high value on brevity? Am I some sort of masochistic nut for addressing the issue at all, and what should I have been doing instead?

Awaiting your comments with bated breath and asbestos suit......

Update: Omnibus Bill comments....

I'd definitely support a "this far, and no further" constitutional amendment guaranteeing the right of all sane persons who are not felons to possess long guns and pistols, subject to registration and very limited administrative requirements. Obviously, Congress would have to set forth what "very limited" means - I'd submit that 40 hours of training, a criminal background check, and a couple affidavits from acquaintences attesting to one's good citizenship should be sufficient for a carry license; a much shorter class - say 10 to 20 hours with a shooting practicum, would be sufficient to posess in the home. I cringe at any restrictions, because the history of gun restrictions in this country is to be arbitrary and capricious, and ever more stringent -- but the Amendment we just presumed would limit the encroachment on the right.

And Mrs. du Toit comments

The gun registration argument is veiled with the guise of “reducing crime.” We can all get around that idea, which is why it is so often given as the reason to infringe on liberties.

Let’s take what we know about crime and, using the same type of approach as gun registration, find other methods to reduce crime and see how it feels:
We know, for example, that about 95% of all crimes are committed by the same 5% of the population. In real numbers, that means that if there are 1000 crimes, 950 of them will be committed by 50 out of a thousand or 5 out of a hundred people.

Our problem is not the other 95 people. Our problem is the 5 who commit crimes.

What many of the suggestions to reducing crime fail to address is the 95, but, let me focus on that 5.

If we know those five commit the majority of preventable crimes (and we do) why don’t we do more to keep those five people from being able to commit crime?

Posted by Bigwig at June 19, 2003 10:54 PM | TrackBack
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Interesting idea. I'm not sure if it's good or bad right now, but it's interesting. The problem I see is that the federal gov't will probably find a way of obtaining those records, either officially or unofficially. I wish I could remember what those grants are that the federal government gives only when a state does as they're told (curse you, boring AP Government class!), but those are the things I mean. We'd also get things like "well, yes, but we only meant registering Powerline Airstrike 240s and Daisy Red Ryder pellet rifles with compasses in the stocks, and certainly not that nasty SKS or 1911, much less that .50 caliber machine gun (or whatever you call it!) and that Tec-9!"

A pertinent question, I think, would ask why the government has the right to know what you own, so long as its used on your own property (I don't know if cars are taxed if they're not licensed for highway use).

Posted by: Robert Bauer at June 20, 2003 12:09 AM

Bigwig, I blogged the hell out of an answer to this question right here. Enjoy.

Posted by: Omnibus Bill at June 20, 2003 01:16 AM

Yes, you are a masochistic nut. Prepare to be roasted.

With that said, the real problem in my opinion isn't gun registration per se, but what the government does with it. There's already a train of thought present which maintains that the 2nd doesn't bar registration at all, what it does bar is government attempts to use that information as a means of gun control (severely paraphrased). If your proposal was to actually pass, it's rather predictable what would happen. Some states would attempt to use the registration provision as a means of gun control, and some wouldn't, and the issue as to what the provision means would end up before the Supremes. So, it doesn't really answer or deal with the objections to gun registration in the first place-the problems with registration would still be there only at a state by state level. And don't think for an instant that if the federal government wanted to get the state records they couldn't-at the very worst the feds would simply (and illegally) seize the state records and deal with the fallout later ala Aschcroft or Reno (depending upon your point of view) or amend the laws at a later time to allow legal access to the databases. That's the problem with a registration scheme, it creates a database of gun owners which is a simply irresistible target for those in power. Just look at some of the shenanigans that have occured over the present NICS system for examples-there have been attempts to turn it into a permanent database of who bought what and where as opposed to what it is meant to be.

Posted by: Mike Trettel at June 20, 2003 08:14 AM

The current NICS database check determines if someone is on a list, which would make them unable to buy a gun lawfully. This doesn't mean someone can't by a gun through illegal means (most criminals do).

My question to you: Why do you feel gun registration is necessary? What objective will it achieve or what problem will it solve that the current system is unable to control or adequately address?

Posted by: Mrs. du Toit at June 20, 2003 08:54 AM

Hi Mrs. du Toit,

I was rather hoping ya'll would drop by.

I have only mild preferences for registration. I see the problem more as a conundrum to be solved rather than as a political prescription.

To whit: If gun registration were to make crime-fighting easier, a supposition that I am aware is debatable, is there a way to structure it such that it addresses the most common arguments against it?

No, it would not be a panacea. Nothing is. Some crimes would be committed with illegal weapons, just a some crimes are committed while someone is driving a stolen car.

But some aren't, as well, so registration would thoeretically aid in solving them. The question I'm attempting to answer is how to do so in such a way that the arguments against registration, perfectly valid ones to my mind, are addressed.

If they cannot be, then the only basis from which to argue for gun registration is one of faith in U.S. Government, and the assumption that its intentions are benign, which as Kim pointed out is at best extremely naive and most likely just plain foolish.

Let me know what you think.

Posted by: Bigwig at June 20, 2003 10:15 AM

> But some aren't, as well, so registration would thoeretically aid in solving them.

I'm not interested in theory - I'm interested in practice.

Various states have had gun registration for decades. There haven't been any measurable benefits.

Yes, there's the "it's not universal" quibble, but that's just a % decrease in effectiveness. If the other multiplicand is non-zero, we'd still see something and we don't. And, it can't be truely universal, thanks to my machine shop and the existence of foreign countries.

Also, I don't know why you think that universal state level registration is to be preferred to federal level. The feds can get state records.

I note that the states aren't exactly paragons here either. CA, for example, has a state law that forbids state-level registration, but the state keeps records of every background check run (including serial numbers) and requires a background check on every transfer (including "private" ones).

As someone said about private criminal enterprise, if govt won't obey the current laws, why do you think that they'll obey new ones?

Posted by: Andy Freeman at June 20, 2003 11:21 AM

I think it is a two-fold problem:

I don't think it is realistic to suggest a change in the Second Amendment, AND

I do not believe there is any evidence that gun registration (or licensing in some form or another) has any impact on the problems that it intends to address.

But, I can get around the, "just for discussion" or "for the sake of argument" goal.

The issue that must be clear, however, is that registration serves the purpose of imposing red tape on the law-abiding. It has no effect on those who operate outside the law. That is the simple point that many fail to accept.

Now, the second problem, is addressing the Second Amendment in the manner you have. The best way to illustrate this:

Let's say we have another right articulated in the Bill of Rights, such as "Being necessary to health and happiness, the right to stand up and stretch shall not be infringed."

Seems silly, but stay with me a minute.

It is a right you have, regardless of its articulation. If it was repealed or modified, the right would not change—you’d STILL have it. Rights cannot be rescinded—that is inherent in the definition of a “right.” You don't have it have it written down for people to accept that they HAVE that right, and that is the part that gets people tied in knots over the Second Amendment.

It is the articulation of a RIGHT, but it is not the GRANT of a right. You cannot grant rights--they exist with or without their articulation. You can GRANT privileges, such as the use of public roads in a motor vehicle, but rights are not granted, they simply “exist.” Privileges can be revoked and regulated, rights cannot.

When you add the layer of "registration" to a "right" you've entered the realm of oxymoron. Registration implies the requirement of a step necessary to do something. In this case, registration would be required BEFORE a firearm could be purchased. That establishes firearm ownership as a privilege, because the flip of registration is the failure to register according to state-defined requirements, which grants the government the right to REFUSE registration (or to restrict how registration is "granted" or achieved).

To the argument about helping the solving of crimes: there is no evidence (and there is contrary evidence) that any amount of registration will aid in the solving of crimes. The type of solution, such as ballistics databases, are no different than DNA databases, with one major caveat: you can alter the ballistic fingerprint of a gun, but not an individual’s DNA. Since you can alter a gun’s fingerprint (even I could do it and I don’t even clean my own guns, Kim does) it serves no purpose. The only people who would not intentionally alter the fingerprint (and it occurs naturally anyway) would be the law-abiding. Again, the law-abiding are not the problem. Criminals are and criminals WOULD alter the ballistic fingerprint, making the purpose and intent of the database moot.

Then take the registration or fingerprint argument to its most extreme, would you support the mandatory DNA testing of everyone, including those who have never committed a crime, to make it “easier” for law enforcement to find criminals? That type of Orwellian solution would not stand, but registration relies on the exact same “prevention” approach.

Registration, no matter how you limit it or try to make it cushy and comfy, is an INFRINGEMENT. When you give the State the ability to regulate (which is the root of "registration"), you give them the ability to "deny." That will happen, as they say....from my cold dead hands.

Posted by: Mrs. du Toit at June 20, 2003 12:20 PM

South Africa has universal gun registration, and the violent crime rate there is one of the world's highest.

Canada has required handgun registration since 1930, and NOT ONE crime involving a handgun has ever been solved by registration.

It's total bullshit. "It MIGHT help" is no basis for infringing upon a right.

What registration DOES do is tell the State who has guns, and which ones.

Call me cynical, but I don't think the State has any business knowing that.

A pox on them, and on anyone who supports gun registration or gun owner registration.

Posted by: Kim du Toit at June 20, 2003 12:35 PM

Mrs. Du Toit, I beg to differ.

The government at all levels can regulate your rights with validly enacted acts. So long as the Constitution has an enumerated power permitting action, they can regulate.

The degree to which the fed can regulate is limited by the character of the right (fundamental constitutional right versus a liberty interest). Fundamental rights - free speech rights, the right to raise your kids as you see fit - can only be regulated if there is a compelling state interest at stake, and the state action is narrowly tailored to further the interest, being no more intrusive on the right than is necessary. Other legal rights and liberty interests can be infringed to death, providing the state has a "rational basis" for regulating the matter. Or, as some courts have phrased it, the regulation must be legitimate enough to pass the laugh test.

I will assume that the Second Amendment is a fundamental right; it seems to me that it should be, considering where it was placed in the Bill of Rights.

Yet even the most fundamental right of all, the First Amendment right to political free speech, is subject to "reasonable time, manner and place" restrictions. That means that the state can burden your free speech rights with some minimal restrictions - no noisy marches after 9:00 PM; marches and pickets must stay on the sidewalk, or in one of the public parks; or charge a nominal fee for a demonstration permit. These things are all justified by the need to keep good public order. Even the topic of speech -- the most protected thing of all in the First Amendment -- can be restricted in certain types of fora. For example, a town meeting can limit the topics the public is allowed to address.

So if any regulation whatsoever is infringement, then all of our rights have been destroyed already and our rear guard action is essentially futile.

I submit to you that you need to carefullly parse what the term "infringement" means. Looking at the history of guns in this country, we've put up with a lot of infringements. We have often tolerated bans on carrying weapons in bars, or while intoxicated. We don't mind if convicted violent felons are restricted from carrying weapons. Perhaps these things aren't actually infringements on our rights, but reasonable regulation in the vein of requiring demonstrators to get a demonstration permit.

I don't want to see registration or permitting, personally. But a nominal fee and a safety course requirement, if it went no further, wouldn't bug me. A gun is a dangerous instrumentality, and I don't live a mile away from the nearest neighbor, like the framers did 200 years ago; I live 20 feet from her. Our freedom of movement is one of our fundamental rights, yet we require vehicle operators to take classes, get permitted and register each and every vehicle they have. Yet we don't complain about the regulation of those dangerous instrumentalities at all. I don't think the framers would freak out if we required people who owned guns to take a class at least once in their lives, to learn how to shoot them and handle them safely. In fact, I suspect that the framers would support a law that required all gun owners to engage in regular target practice, just in case some pushy Brits or residents of the Barbary Coast (i.e. Libya) hove into view. Such a law would not be thought an infringement, but would mirror the laws on the books eternally in England, requiring all men of a certain age to practice archery.

That said, I am against registration and permitting at this point, and I dig my heels in and pay NRA dues because the anti-gunners' goal isn't safety training and keeping guns out of the hands of violent felons per se, it's confiscating all guns entirely, and until they come around, we can't give 'em an inch, because we've already seen they plan to take the whole mile.

Final point - if we are presuming the existence of an amendment to the Constitution that allows for registration and permitting, and clearly limits government power to do any further infringement on the RTKABA, then it's not an unconstitutional infringement on the Second Amendment to require registration and permitting. A later enacted amendment supercedes all those things enacted before it.
If she gets a gun, I want to be damn sure she's not going to accidentally shoot me. Moreover,

Posted by: Omnibus Bill at June 20, 2003 12:49 PM

I'm with the du Toit's when it comes the issue of the practical limitations of gun registration. Real life examples do exist here in the States, as well as the examples noted by Kim. Maryland has de facto strong handgun registration combined with a tracking database for close to three years now as a result of the so called "ballisitic fingerprinting" law. It has yet been used to solve a single gun crime in spite of it's extraordinarily high cost, which would suggest the criminals aren't as stupid as the politicians are. New York has a similar law which AFAIK is also a flop. Given that criminals in the US have easy access to illegal guns no matter what kind of laws are present on the books it's hard to see how or why universal registration would prove to be a much of a help for fighting crime. Also once given that the potential for government abuse of a universal registration database would always be present no matter who was in power I just can't see how it could be arranged such that gun owner's concerns can be addressed.

Posted by: Mike Trettel at June 20, 2003 01:08 PM


There is a fundamental flaw in your argument where you state:

Yet even the most fundamental right of all, the First Amendment right to political free speech, is subject to "reasonable time, manner and place" restrictions. That means that the state can burden your free speech rights with some minimal restrictions - no noisy marches after 9:00 PM;

No, that is wrong.

You are simply misunderstanding the First Amendment. The First Amendment is the articulation of the right to an opinion, a faith, and to speak out against the government.

"I have sworn upon the altar of God, eternal hostility against every
form of tyranny over the mind of man." --Thomas Jefferson

That is what the First Amendment protects—what HE said, not how loud you can be on the public street.

You are interpreting it as "the right to use your voice and scream and shout." That isn't what it protects.

The government has no right to restrict your right to political speech, but it can restrict, as you've pointed out, the manner in which you make noise. Making noise is not protected. The right to have an opinion, and in all manners of conscience, are not the bastion of the State.

The purpose of the Second Amendment is, as many people fail to grasp or understand, the right of the people to bear arms in DEFENSE AGAINST THE GOVERNMENT. Your arguments would make sense if the Second Amendment was an articulation of the right of self-defense against criminals--it is not. The Founders would have thought it absurd to articulate the right of self-defense and define the manner and tools allowed for such a right. Of course you have the right of self-defense. That does not need to be articulated. What DOES need to be articulated, because the history of mankind as proven it, that a government that denies its citizens the means to defend themselves against the tyrannical state, is (by definition) a tyrannical State. The Founders, in ALL their wisdom, attempted to prevent that rise of tyranny by articulating the right of all people to defend themselves, as a method of final recourse, against the State.

To suggest that a right intended to protect the Republic from tyranny (to maintain the "free state") can be simultaneously regulated by the very people it is intended to limit, is absurd.

Posted by: Mrs. du Toit at June 20, 2003 01:42 PM

I always come to these things late.

Mrs. du Toit, you've said it better than I can. Bravo.

Posted by: Kevin Baker at June 21, 2003 04:09 PM

It not even true that only criminals would alter the "ballistic fingerprint" of their firearms. It can be altered over time by extensive shooting, by the use of the wrong tool to clean the barrel, and by the practice of fire-lapping, which is popular among those seeking the ultimate accuracy from their rifles.

By the way, can anyone here confirm the provenance of the quote, attributed to V. Lenin, about registration being the best way to disarm the bourgeoisie?

Posted by: triticale at June 21, 2003 06:14 PM
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