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Old March 1, 2013, 08:22 PM   #1
Nickel Plated
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Is gun registration prohibited by law?

I have watched a few videos recently that mentioned that creating a registry of guns or gun owners is prohibited by law. I somehow never really bothered to actually look into that claim. But recently it hit me.
I live in NYC where we have a registry for all firearms (handguns and longarms). So if creating a registry is illegal, how has ours managed to stick so long without any sort of challenge? I know there's only enough legal funds and lawyers to go around and we can't take on all the laws at once, but if it's flat out illegal, it seems that NYC's registry would be a pretty easy case to win that would do ALOT of good.

Does that prohibition on registries only apply to the ATF or to any government agency?

I tried googling, but couldn't seem to find any info on whether such a law actually exists.
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Old March 1, 2013, 09:02 PM   #2
rwilson452
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As I recall it pertains to the BATFE. here in PA we have such a law.
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Old March 1, 2013, 09:24 PM   #3
sigcurious
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No such rule or regulation prescribed after the date of the enactment of the Firearms Owners’ Protection Act may require that records required to be maintained under this chapter or any portion of the contents of such records, be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or any political subdivision thereof, nor that any system of registration of firearms, firearms owners, or firearms transactions or dispositions be established. Nothing in this section expands or restricts the Secretary’s [1] authority to inquire into the disposition of any firearm in the course of a criminal investigation.
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Old March 1, 2013, 10:20 PM   #4
Nickel Plated
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Thanks Sigcurious. So I take that to mean that the registry in NYC is legal (for now) simply because it was created before the FOPA passed?
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Old March 1, 2013, 10:59 PM   #5
Tom Servo
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Beat me to it, sigcurious! On the federal level, it's unlawful.

However, several states have their own registries, and they'd likely try to defend theirs on 10th Amendment grounds if those were challenged.
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Old March 1, 2013, 11:13 PM   #6
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Tom, that's a very interesting observation. The 10th Amendment is used to defend the "police power"; that is, to regulate behavior to protect the health, welfare, safety and morals of the population (although morals is starting to get outdated, and changes with the era). The police power is not unlimited. To be a valid exercise of the State police power, a law must have a means-ends relationship to a legitimate state objective. That test gives the judge relatively wide discretion to enjoin or uphold State action, although an empiricist such as myself would argue that there are right and wrong answers to this question. All you have to do is look at Canada to see that gun registries do not have a means-ends relationship to lowering crime, or even solving crimes. I don't think we need to be gunshy, no pun intended, about having this debate. The data is on the side of gun rights and freedom from arbitrary law, not the other way around.
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Old March 1, 2013, 11:27 PM   #7
Gaerek
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Is gun registration prohibited by law?

States can, Feds cannot.
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Old March 1, 2013, 11:36 PM   #8
Tom Servo
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The data is on the side of gun rights and freedom from arbitrary law, not the other way around.
It is, but there are obstacles. In the leadup to the McDonald case, our opposition claimed that the 2nd Amendment shouldn't be incorporated because it would trample all over states' rights.

Yep, for a brief time, the Brady Campaign agreed with Ron Paul on the 10th Amendment. It was a bit surreal.

That said, one hurdle to any effective challenge would be the assertion of a means-ends relationship to a legitimate state objective. In the case of a registry, they'd claim it was for public safety.
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Old March 1, 2013, 11:43 PM   #9
Gaerek
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Is gun registration prohibited by law?

Slightly off topic but and interesting side note to what Tom wrote. Part of the reason we're having difficulty passing any kind of nationwide reciprocity bill is the 10th Amendment. There are conservatives who are against it because it infringes on states rights. Heck, one of the most promising nationwide reciprocity bills to be submitted to the Senate was written by two red state democrats.
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Old March 2, 2013, 12:41 AM   #10
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Quote:
Originally Posted by Tom Servo
That said, one hurdle to any effective challenge would be the assertion of a means-ends relationship to a legitimate state objective. In the case of a registry, they'd claim it was for public safety.]
I suppose they would. But claiming it is for public safety, and the registry actually having a means-ends relationship to public safety are two different things. If one could show to the judge that their is a spurious relationship, or no relationship to public safety, it would fail the test. Courts are loathe to apply this test, originally outlined in Lochner (<3), because it would result in them invalidating a significant amount of State legislation. Nonetheless, the requirement must still legally be met. This shows us why people need to start taking judicial elections seriously.
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Old March 2, 2013, 10:14 PM   #11
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I am far from a constitutional law scholar, but so many things have passed the rational-basis test and similar tests that I am afraid to say that anything "couldn't" pass. All it takes is one bad panel of appellate judges and a set of bad facts for everything to go off the rails. I've seen it before in other areas.
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Old March 3, 2013, 01:47 AM   #12
JRH6856
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And even though FOPA may prohibit a federal registry at this time, it is only a federal law (not a Constitutional level restriction) and can be repealed anytime Congress has the votes and desire to do so.
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Old March 3, 2013, 06:13 AM   #13
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Correct aboout judges who will rubber stamp just about anything. We've already seen District court judges who said the 2A was confined to the home and 340$ registration fees in NYC were constitutional. If the Feds passed a registration bill(let's say not onerous), I doubt it would be struck down, at least not before many more 2A wins at the high court to establish the kind of protections that the 1st Amendment enjoys.
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Old March 3, 2013, 08:21 AM   #14
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Exactly. I would not be surprised at all to see a federal gun registration requirement passed in the next several years, and it's even money at best whether it would hold up against constitutional scrutiny. Regardless, it wouldn't make it before the U.S. Supreme Court for years.
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Old March 3, 2013, 08:58 AM   #15
Nickel Plated
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Thanks for clearing the issue up for me.

I do think the state's rights argument is being misused in these cases though. As far as I'm concerned, Constitutional rights trump State's rights. There's a reason it's called the Constitution of the United States. It's supposed to apply throughout the country. The states don't get to pick and choose which amendments are valid within their borders. They signed on to ALL of them when they joined the Union, now they must abide by ALL of them.

That's why I think a national reciprocity bill or a national ban on registries will not violate state's rights. I mean what's the point of a constitutionally protected fundamental right if any podunk town mayor can just disregard it at will.
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Old March 3, 2013, 09:05 AM   #16
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Nickel Plated -- You are correct that individual rights under the U.S. Constitution cannot be deprived by individual states under a claim of "state's rights." The problem here is that a logical argument can be made that requiring registration does not rationally deprive citizens of their Second Amendment right to bear arms. Indeed, it's pretty clear that the Second Amendment is not absolutely inviolate -- as an example, governments can and do make it illegal for convicted felons to carry firearms.

The point is, the gray area between any person, felon or not, being able to own any firearm and the right to effectively legislate law-abiding citizens out of practically owning firearms is where the legal battles will take place. And when you are talking about an individual state imposing something like a registration requirement, the constitutional bar will be lower than if the federal government did it because states do have the right to legislate to best serve their citizens (open for interpretation, I know).
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Old March 4, 2013, 12:06 AM   #17
hermannr
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the gun owners protection act 1986..yes, it is illegal, at teh federal level, and though not tested, same act makes it illegal at the state and local level also.

I do believe that is why, when you purchase a firearm through a licensed dealer in WA, there is a "report of sale" that goes to DOL. (and is available to LE) It is not a "registration" only in teminology...and of course, private sales are not required to report the sale.
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