Could the Supreme Court rule firearm registration unconstitutional?

[Guest CrazyLincoln]

I would like some input from the lawyers and legal thinkers on the board, but I think with the ruling in McDonald v Chicago there is a strong precedent for ruling gun registration licensing unconstitutional. I think it is a long shot to argue the HCP unconstitutional, but I think it would be easy to argue against ownership registration schemes, such as Illinois FOID.

My argument is based on the outcome of 3 cases.

First off in DC v Heller, the court rules the 2A is an individual right.

Secondly, in McDonald, the court rules the 2A applies to state and local governments.

The third is actually a 1st amendment case, Watchtower Society v. Village of Stratton.

For those unfamiliar with this case the Watchtower Society (a.k.a Jehovah's Witnesses), argued that an ordinance in Stratton, OH requiring all door-to-door "canvassers" representing a "cause" to register with the city and obtain a permit was unconstitutional. Which ultimately was the opinion of the court.

The main part of the Stratton ordinance was as follows:

The practice of going in and upon private property and/or the private residence of Village residents in the Village by canvassers, solicitors, peddlers, hawkers, itinerant merchants or transient vendors of merchandise or services, not having been invited to do so by the owners or occupants of such private property or residences, and not having first obtained a permit pursuant to Section 116.03 of this Chapter, for the purpose of advertising, promoting, selling and/or explaining any product, service, organization or cause, or for the purpose of soliciting orders for the sale of goods, wares, merchandise or services, is hereby declared to be a nuisance and is prohibited.

In the court's opinion they reference an earlier case, Thomas v. Collins:

In Thomas, the issue was whether a labor leader could be required to obtain a permit before delivering a speech to prospective union members. After reviewing the Jehovah's Witnesses cases discussed above, the Court observed:

"As a matter of principle a requirement of registration in order to make a public speech would seem generally incompatible with an exercise of the rights of free speech and free assembly... .

. . . . .

"If the exercise of the rights of free speech and free assembly cannot be made a crime, we do not think this can be accomplished by the device of requiring previous registration as a condition for exercising them and making such a condition the foundation for restraining in advance their exercise and for imposing a penalty for violating such a restraining order. So long as no more is involved than exercise of the rights of free speech and free assembly, it is immune to such a restriction. If one who solicits support for the cause of labor may be required to register as a condition to the exercise of his right to make a public speech, so may he who seeks to rally support for any social, business, religious or political cause. We think a requirement that one must register before he undertakes to make a public speech to enlist support for a lawful movement is quite incompatible with the requirements of the First Amendment." Id., at 539-540.

Additionally the court found:

...requiring a permit as a prior condition on the exercise of the right to speak imposes an objective burden on some speech of citizens holding religious or patriotic views. As our World War II-era cases dramatically demonstrate, there are a significant number of persons whose religious scruples will prevent them from applying for such a license. There are no doubt other patriotic citizens, who have such firm convictions about their constitutional right to engage in uninhibited debate in the context of door-to-door advocacy, that they would prefer silence to speech licensed by a petty official...

...it seems unlikely that the absence of a permit would preclude criminals from knocking on doors and engaging in conversations not covered by the ordinance. They might, for example, ask for directions or permission to use the telephone, or pose as surveyers or census takers. See n. 1, supra. Or they might register under a false name with impunity because the ordinance contains no provision for verifying an applicant's identity or organizational credentials. Moreover, the Village did not assert an interest in crime prevention below, and there is an absence of any evidence of a special crime problem related to door-to-door solicitation in the record before us.

The rhetoric used in the World War II-era opinions that repeatedly saved petitioners' coreligionists from petty prosecutions reflected the Court's evaluation of the First Amendment freedoms that are implicated in this case. The value judgment that then motivated a united democratic people fighting to defend those very freedoms from totalitarian attack is unchanged. It motivates our decision today.

The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

My argument is that if by these findings, it is unconstitutional to require a registration and permit to exercise the freedom of speech or religion in public or on property other than the owners, then equally it would be unconstitutional to require a permit and registration to exercise an individual's right to keep and bear arms, especially within one's home.

So, does this argument hold water?

[Guest 6.8 AR]

Your argument makes sense to me, except the part about especially in one's home.

That part isn't necessary. Good argument

[Guest HvyMtl]

Hmm. It is a good point, and may be an arguable one in Court. I would also argue registration would enable the State or Local Government to easily confiscate the firearm, if they deemed appropriate, particularly when the confiscation violates the Constitutional Right.

To play Devil's Advocate: (Note: May not agree with the notions, just putting the argument out there...)

This said, the counter argument is: The firearm is not forbidden, but merely registered to prevent its criminal use... Firearms are known threats to the health and welfare of the public... (I would add, "when in criminal hands." Mayor Daley would not...) and therefore there is a health and welfare need to know the location of each.

Any other possible arguments pro and con?

Edited July 2, 2010 by HvyMtl

[Guest 6.8 AR]

That's the way I would see an anti make the argument for registration. And I would have

to counter with "The criminal will not bother to register his firearm, since he is after all,

he is a criminal.

Your counter argument reminds me of "Minority Report", or the makings of

it, which is how bad law sounds good to some and leads to oppression and tyranny, the

way that movie portrayed it.

I'm not disagreeing at all. You just laid down the argument for the old "slippery slope".

Lincoln, I like your argument because it isn't necessarily about guns. That approach

attacks most avenues of over-reaching by any governmental entity, with common sense.

i wish there was more like that and less legal-ese. We may be getting that way unless

SCOTUS gets stacked with progressives like Kagan.

Unfortunately, that happens too often.

Hey, keep this up. It's refreshing to me when I see people thinking like this. One of the

reasons I like this place. The progressives have used the commerce clause and other

parts to destroy liberties too often. There is much more to defend those liberties all

over the document and case law like you found.

[Guest CrazyLincoln]

To play Devil's Advocate: (Note: May not agree with the notions, just putting the argument out there...)

This said, the counter argument is: The firearm is not forbidden, but merely registered to prevent its criminal use... Firearms are known threats to the health and welfare of the public... (I would add, "when in criminal hands." Mayor Daley would not...) and therefore there is a health and welfare need to know the location of each.

To counter, the right supersedes supposed "threats" and I doubt anyone could produce conclusive evidence that these right infringing laws actually prevent or deter crimes. It is liberty by default. Additionally, if permits/registration were legal, then they must be available to any citizen of the age majority at minimal cost with no restrictions. Selective issuance means it is a "privilege" not a right.

However, even in this case, permits were given to anyone free and still deemed unconstitutional.

[Guest Bonedaddy]

All this is exactly what the fella and his son that shot the officers in West Memphis, AR were telling people. I think it is an arguable case but I'd be careful with pushing it 'cause the powers that be are watching for something like this to be a threat.

[Guest CrazyLincoln]

All this is exactly what the fella and his son that shot the officers in West Memphis, AR were telling people. I think it is an arguable case but I'd be careful with pushing it 'cause the powers that be are watching for something like this to be a threat.

I appreciate your input, but I can hardly see how making an argument based on legal precedent is anything like a couple of nut jobs driving around illegally and shooting cops.

[eapking]

And I would have

to counter with "The criminal will not bother to register his firearm, since he is after all,

he is a criminal.

The fallacy of the "honest criminal". This is at the heart of all anti-gun laws, postings, etc.

[DaveTN]

Yes, they could rule it is unconstitutional, but they won’t; they won’t even hear the case. Just as in the “bear arms†part of all the gun rulings; they aren’t about to take on States Rights.

<O:p</O:pFYI… Illinois doesn’t register guns. FOID registers gun owners.