Why ‘universal background checks’ will inevitably lead to registration

Gun_ConfiscationI have a friend I attended law school with who is constantly stating that his family “owns over a hundred guns” while simultaneously supporting (at least partially) some of the Democrat’s proposals that I am most concerned by.

His latest post on Facebook was to share Slate’s article about how American’s are concerned about the possibility that so-called ‘universal background checks’ will quickly morph into nationwide registration.

His comment accompanying the article was that this was “[y]et another irrational fear.

I started to comment on his Facebook post but then realized that this topic deserved a detailed commentary.

So here we are … answering the question “Is it irrational to fear that the ‘universal background check’ bill will lead to a de-facto registration scheme?

Let’s just start with the plain text of the bill itself.  Does it say anything about a record-keeping requirement?

Why yes it does!  It says that “[r]egulations … shall include a provision requiring a record of transaction of any transfer that occurred between an unlicensed transfer or and unlicensed transferee.

Hmm.  I wonder what form such a record would take?

But let’s not stop there.  We have a historical precedent.  While generally a very pro-gun state, Pennsylvania has a very similar de-facto registration problem.

Under Pennsylvania law, it is illegal to maintain a registry of firearms.  This is codified at 18 Pa.C.S. § 6111.4.  However, Pennsylvania also has ‘universal background checks’ for all handgun transfers and, in order to enforce that law, the Pennsylvania State Police maintains a ‘transfer database’ of all handguns in the state and use it as a de-facto registration scheme.

In the 2002 case of Allegheny Sportsmen League v. Ridge, the Commonwealth Court allowed this practice to continue by distinguishing between a registry of ‘ownership’ and a registry of ‘sales’ or ‘transfers.’  Even the court admitted that the distinction is ‘slight.’

“While we agree that the database maintained by the Commonwealth is a ‘registry’ of sorts, there are no allegations that the Commonwealth maintains a registry of firearm ownership.

The distinction lies not in the term ‘registry’, as urged by Petitioners, but with what is being registered.  A ‘registry of firearm ownership’, by plain definition, would maintain a record of ownership, whereas a registry or database of handgun sales would maintain a record of sale.

While the distinction may seem slight, a registry of ownership would necessarily encompass a registration of all firearms, including long guns, firearms owned by Pennsylvanians not purchased in the Commonwealth of Pennsylvania, as well as information on transfers of handguns to spouses, children, and grandchildren, whereas the database of handgun sales maintained by the Commonwealth contains only information on the sale of handguns in the Commonwealth of Pennsylvania.”

Regardless of what it is called, Pennsylvania law enforcement uses the database as a de-facto registration and woe betide anyone who possesses a handgun that is not in the ‘registry.’ Numerous gun owners have had their firearms confiscated and have been forced to prove their ownership and compliance with the ‘universal background check’ law before getting them back.

Pennsylvania’s scheme is a perfect example of how law enforcement will address such a scheme.  After all, in order to enforce a ‘universal background check’ law, they need to know whether you complied or not … right?

That brings me to my next point which is the lack of an effective enforcement mechanism outside of actual registration.  Without a nationwide registration, this law would be an empty shell and they know it.  If there is no database to check then the only option is to require owners to be considered criminals until they themselves prove otherwise (as happens in Pennsylvania).

Let’s face it.  If this bill passes as written, the courts will uphold some form of database in order to provide an enforcement mechanism.  Forcing citizens to maintain their own paperwork would, in my opinion, be unenforceable as a 5th Amendment violation under the holding in Haynes v. United States.

So … The courts will pontificate that Congress would not have passed a law without intending law enforcement to take the reasonable steps necessary to implement and enforce it … and voila … we have nationwide registration.

And before my friend, who I hope will read this article, says that I too am merely irrational, I should point out that the ACLU shares my concerns.

Chris Calabrese, a privacy lobbyist for the ACLU, speaking to reporters Wednesday said that a registry would be a logical “next step” in the implementation of the bill as written. He went on to add that “we have seen in the past that the creation of these types of records leads sometimes to the creation of government databases and collections of personal information on all of us … As we’ve seen with many large government databases, if you build it, they will come.

He noted a prime example of what gun owners might expect to happen with such data.  “And they come to use databases for all sorts of different purposes. For example, the National Counterterrorism Center recently gave itself the authority to collect all kinds of existing federal databases and performed terrorism related searches regarding those databases. They essentially exempted themselves from a lot of existing Privacy Act protections.

Calabrese went on to note other concerns the ACLU has about the bill include the vague language that would criminalize gun ownership for same-sex couples, unmarried couples, people shooting on their own property and even those shooting each other’s firearms at certain shooting ranges.

They are also concerned about the implications and possible misuses of school tip lines in Schumer’s bill.  In short, the ACLU is not a fan of this bill despite their general support for background checks.

To my friend, I can say only this … When even the ACLU says you are wrong then perhaps you shouldn’t let your distrust of the NRA get in the way of logical thought.

Carry on!

About John Pierce

Monachus Lex is written by Virginia attorney John Pierce. John is a life-long gun rights advocate, an NRA certified instructor and co-founder of the nationwide gun rights group OpenCarry.org.

He has an undergraduate degree in Computer Information Systems, an MBA from George Mason University and is a 2012 Honors Graduate of Hamline University School of Law in St. Paul, MN.

Professionally, John is a member of the American Bar Association Second Amendment Civil Rights Litigation Subcommittee and his writings have been published by the ABA Civil Rights Litigation Committee and the ABA Minority Trial Lawyer Committee.

In addition, his open carry advocacy has been featured on Nightline and The Daily Show With Jon Stewart.
This entry was posted in ACLU, Confiscation, Democrats, General Civil Rights, Registration, Universal Background Checks. Bookmark the permalink.

10 Responses to Why ‘universal background checks’ will inevitably lead to registration

  1. Dean Lambrecht says:

    This article completely fails to address the federal-state differences in gun policy regulatory powers, which is addressed directly as the main point of the very Slate article that began this entire thing. The remainder of the text in this comment is a direct quote from the Slate article itself:
    So, a national gun registry is illegal. It has been ever since the 1986 passage of the Firearm Owners Protection Act. Look over there:

    ‘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 authority to inquire into the disposition of any firearm in the course of a criminal investigation.’

    This law regularly kills law enforcement attempts to build a registry of firearms. You could pass a law that changed this and legalized gun registration, but that’s not part of the bill.

    • CplDevilDog says:

      So by the verbiage of the FOPA as quoted in the above reply, would that not make even PA’s “gun SALES registration” illegal? Seriously, if “‘No such rule or regulation…that records required to be maintained…or firearms transactions or dispositions be established.”, would a registration database of firearms sales not be counted under “firearms transactions or dispositions”? I think you just shot your own argument in the foot, but I may be misunderstanding you. Are you supporting or opposing the formation of a system that could be easily converted to firearm registration?

      • Chris says:

        That 1986 law was overruled in 94 with the federal “assault weapons ban” and the “Brady Bill” which amongst other things established the national background checks, which require registration of at least we citizens (creating dossiers and presumption of guilt for those NOT under warrant for criminal acts), and as a database guy, I GUARANTEE that no matter what they say, the KEEP any transaction records that can later be used against you.

  2. Grapeshot says:

    When they come for your friend’s guns, what will he say then? Who will be there to speak up for him?

    Incremental loses do add up just as surely as a boot to the back of your neck.

  3. Sam says:

    How will same sex marriages play in this? If the legislation allows exemptions for gun transfers to direct family members then wouldn’t it be discriminatory to those people who resides in states which don’t recognize same sex marriages?

    Universal Background Checks are conducted through the National Instant Criminal Background Check System (NCIS) which according to Federal Register Volume 63, Number 107, “information about the individual will only be retained temporarily for audit purposes and will be destroyed after eighteen months.”

    System backups? Everyone always forget the backups.

    • Chris says:

      Trust me. They don’t delete the records; they may be purged from the on-line database, but to do so they first archive them into a searchable warehouse. One NEVER throws away potentially useful data, especially given that data storage has become so cheap. This doesn’t even require the backup tapes (which get overwritten). That “audit purposes” loophole is big enough to drive a Mack truck through; how long for instance, could the “audit” period be? 10yrs? 100?

      There is no difference between having a State or Fed gov grant permission to utilize one’s 2nd rights vs. having to ask permission from the same entities to exercise one’s 1st (religion, press, speech, association).

  4. AO says:

    I would not mind registration (NOT), IF and that is a very big IF it were to be used and maintained to be used just like car registration. Car registration is only used to show who the owner of a car is. I have no feat that the government will some day take my car form me, even if I became a felon or mentally disturbed, they still can not stop me owning a car. I may not be allowed to use it on public streets, but I can drive it on private property, I can work on it paint it, modify it, I can even destroy it is if I so choose. I could buy a 1 million dollar car and destroy is if I felt the desire, it is not illegal. They keep registration mainly (to my knowledge) to see how many types, colors, accident rates for insurance purposes, and many other reasons. None of them are to conficate a car. If I had the same belief and expectations then and only then would gun registration be tolerated, just like a cars registration. Granted ANY type of registration is an infringement of personal right to privacy of which I am against.

    • Chris says:

      Don’t be so naive. Vehicle registrations are so that they know who has what so that they can extract $$ from you and so that they can track you down when they want to. This is a main reason for the license plate cameras; cops are armed roving tax collectors. On top of that, they are building databases (dossiers in effect) of the travel habits of citizens under the sophist umbrella that there is “no privacy when in public”. My buddy is a municipal officer in CT who used to maintain their IT systems; he admitted that a) they don’t follow the law to purge records every three months (for those not under warrant), and that whey the do, the data is just archived (e.g. moved from the “on line” database to another to maintain deep history).
      The same for the scanners at toll booths.

      Later he became an investigator; this is when he was able to leverage this constant surveillance system to develop a travel pattern for a suspect (not always under warrant yet) so that they could pick him up.

      Now you want ownership registration of every weapon. The only reason for this is so that the State knows who has what, when they decide to come for you. Do a little research; broke California has recently passed a law and created a “task force” whose job it is to browse medical records, old court records and cross-reference to the handgun permitting database and then if they get a hit on any variation historically vs CURRENT permitting laws (violation of ex poste facto) the carry permit is deemed voided (making an instant felon of the licensee); the CA “officers” show up in full SWAT battlegear to subdue and disarm the so-called felon, who can then be charged with illegal weapons (even though he wasn’t notified of the cancellation of the permit). It is important to note that these “task forces” don’t go after actual criminals (such as MS13 which is rampant in CA) but only those of us dumb enough to submit to unconstitutional laws.

      Permits and licenses exist solely for the purpose of slowly eliminating that which is licensed. And don’t think for a moment that individually-owned vehicles aren’t in their crosshairs; individual vehicles, like personal wealth, are a means of freedom from government dependence and therefore must be eliminated. So far they cannot do either vehicles or firearms directly, so they take angled shots to nip little bits at a time.

      Wonder why they are pushing to get people into cities and make such a deal about “sprawl”? This is because congested cities are easier to control. Most cities cannot go more than a couple of days without power and food deliveries; residents have been disarmed so are defenseless against State military power (see Boston post marathon bomb) or against thieving (at best case) thugs (see post Katrina New Orleans). Further by living in congested cities, most have no private means of transportation and therefore escape.
      Next take the attacks on vehicle emissions – which was very successful since the 70s eliminating particulates and acids – and the push to electric battery-powered vehicles, which have not the speed or range. This is also to restrict liberty (side note; States complain that as more electric vehicles are adopted the gas taxes are dropping; now they want to stick GPS trackers in all vehicles to track – and charge- for total miles driven; tell me that this data won’t be used as a dossier on one’s travel just like the license plate readers are being used today, go ahead).

  5. Bergman says:

    There’s also the nasty precedent it and other legislation like it sets that unalienable rights can be abolished with a license, background check and registry.

    The right to keep and bear arms has the same level of constitutional protection as the rights to freedom of expression, freedom of the press and freedom of expression.

    Given that more people have been killed throughout history by malicious use of knowledge gained from books than have been killed through malicious use of bullets, it’s not hard to justify background checks on book transfers, a license to own books, a psych evaluation in order to learn to read, etc. The only real protection against such a thing is the constitution. And we’re busily setting precedents that the constitution doesn’t really say what the plain text of it says.

    Where will it end?

    • Chris says:

      Where will it end? The same reason that the communist Dems want we citizens disarmed. It will end with resurrecting and deeply watering the tree of liberty with the blood of tyrants (and as few patriots as is possible).

      Let me ask you; why is our Federal DHS importing and training Russian Spetznak military divisions in Colorado and elsewhere in the mid-west? Why is our CIC dismissing record numbers of senior officers (captain through general) on specious charges? Why are they using false “psyche” charges to strip – primarily military but starting into the civilian population – of 2nd amendment rights (and confiscating arms) based on so-called “Oppositional Defiance ‘Disorder'”?

      The Tree is dying and I for one am waiting for the next Lexington and Concord.

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