The surprise is that, even after last year's landmark Supreme Court ruling on gun rights, mandatory registration could be constitutional. It may not be the wisest public policy. It may not be practical. But after the D.C. v. Heller decision, it also may not violate the Second Amendment to the U.S. Constitution.
That question is at the heart of a second lawsuit underway against the city of Washington, D.C. It also arose last week when the U.S. Seventh Circuit Court of Appeals in Chicago said that the Second Amendment poses no barrier to mandatory regulation because it does not "invalidate any and every regulation on gun use."
Even some pro-gun scholars and advocates reluctantly agree. "I think under the Heller decision, registration would be constitutional," Alan Gottlieb, founder of the Second Amendment Foundation in Bellevue, Wash., told CBSNews.com this week. "It doesn't make it good public policy."
This isn't a mere abstraction: four years ago, after Hurricane Katrina laid waste to much of New Orleans, local police, the national guard, and U.S. Marshals began breaking into homes at gunpoint and confiscating lawfully-owned firearms.
"Registration is probably not unconstitutional," says Don Kilmer, an attorney in San Jose, Calif. who has sued two California counties for denying law-abiding citizens permits to carry concealed weapons. "There's a difference between registration as a permissible regulation and registration as good policy."
Part of this conclusion stems from the approach that the pro-gun side adopted when suing to overturn the District of Columbia's handgun ban. To make their case appealing to as many Supreme Court justices as possible, the attorneys shouldered the legal equivalent of a rifle instead of a shotgun, and argued only for Americans' right to possess firearms for self-defense -- not for the right to avoid registering them.
Justice Antonin Scalia's majority opinion in Heller noted that, because the plaintiffs "conceded at oral argument" that they do not "have a problem with... licensing," the court would "not address the licensing requirement." The appeals court in that case did, however, and suggested that registration was just fine: "Reasonable restrictions also might be thought consistent with a 'well regulated militia.' The registration of firearms gives the government information as to how many people would be armed for militia service if called up."
At this point it's probably helpful to look at the actual text of the Second Amendment, which reads: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
In legal circles, there's a never-ending (more like all-consuming) debate about how to interpret such language. To oversimplify: Some conservative justices, including Scalia, tend to look to the original meaning of the words in ordinary use at the time it was written. Others argue for the concept of a "living Constitution," meaning the Constitution is dynamic and should evolve over time to reflect evolving social values.
You can figure out for yourself which school of thought ended up on which side in last year's 5-4 Heller decision.
The problem for gun rights advocates is that, if you look at the language and custom at the time the Second Amendment was written, laws like the Militia Act of 1792 pop up. It required men between the ages of 18 and 45 to register themselves for militia service, and specified they have certain weapons such as a "good rifle." Similarly, a report from Philadelphia in 1823 showed that there were 12,678 rifles in private hands, indicating some records of who owned what.
"Systems akin to registration were quite common at the time of the framing of the Constitution and the time of the ratification of the Bill of Rights," says Dennis Henigan, vice president for law and policy at the Brady Campaign and author of the new book Lethal Logic. "Even before that the state militia statutes had the same kind of requirements, so they can track how well the militia was armed."
Then again, the reason for registration in Colonial America was the opposite of today's. In the 1700s and early 1800s, public policy encouraged firearm ownership. Now governments that mandate gun registration tend to want to discourage it.
At the moment, a minority of states including New York, Maryland, California, New Jersey, and Massachusetts require mandatory registration for handguns. Others, like Pennsylvania, require sales of handguns to go through a dealer, who keeps records of the transaction.
Under federal law, there's no formal registration for any non-automatic firearm, and unrecorded transfers between private citizens are permitted. A kind of distributed registration requirement exists for anyone buying a firearm through a dealer; they must fill out Form 4473, which the dealer is required to keep on file for 20 years. (Fans of the movie Red Dawn probably remember Form 4473's cameo appearance. And, yes, attorney Stephen Halbrook, author of a book about World War II, has noted that the Nazis "disarmed Berlin's Jews using the Weimar firearm registration records.")
No less an authority than the late William Rehnquist, who became the chief justice of the Supreme Court, once wrote a memo saying there is no "serious legal obstacle" to registration. Rehnquist was no anti-gunner; he subsequently wrote the opinion in U.S. v. Lopez (striking down the Gun-Free School Zones Act) and joined the majority in Printz et al v. U.S. (striking down part of the Brady bill). Then again, because he wrote that memo while an attorney at the U.S. Department of Justice, it's not clear how much of it represents his own opinion.
That brings us back to today's gun debate, and the possibility that a case involving registration will end up, before too long, in front of the Supreme Court.
The leading candidate is a lawsuit that Fairfax, Va.-based attorney Stephen Halbrook (who questioned now-Justice Sonia Sotomayor's Second Amendment record before the Senate Judiciary committee) filed against the District of Columbia. The nation's capital is no fan of firearms, and after the justices in Heller required it to change its laws, it begrudgingly complied by erecting the strictest gun registration and licensing regime in the nation. There are vision tests, training courses, taxes, fees, written tests, criminal penalties, fingerprinting, work history disclosure, and an open-ended ban on any firearm that police deem a "danger to the health, safety, and security" of the community.
Halbrook's brief filed in federal court on July 31 says, simply, "An arm protected by the Second Amendment may not be required to be registered... It cannot be imagined that the Americans of the founding generation would have deemed any requirement that all of their firearms be registered with the Crown or, later, any government entity, as consistent with their right to possess firearms, any more than they would have viewed speaker registration consistent with the right to utter opinions."
Anyone browsing gun-rights forums on the Internet will see plenty of analogies between the First Amendment and the Second Amendment, often with comparisons like: "I can't wait for the law which says that not only must newspapers register their printing presses and get licenses to publish, but so must individuals register their computers and printers and get licenses to print or to blog."
Eugene Volokh, a professor of law at UCLA and curator of the libertarian-leaning Volokh.com site, addresses this in an article in the latest UCLA Law Review. It argues that a registration requirement is commonplace among other constitutional rights.
Volokh writes: "Even speakers may sometimes need to register or get licensed. Parade organizers may be required to get permits. Gatherers of initiative signatures may be required to register with the government, and so may fundraisers for charitable causes, though such fundraising is constitutionally protected." He adds that even the right to marry and the right to vote can require licenses or registration, and he believes gun rights are "more like the trackable rights, and that it is the untrackable rights that are the constitutional outlier."
A First Amendment analogy can be found in a 1958 case involving the NAACP, in which the Supreme Court ruled that the civil rights group could not be forced to disclose the names and addresses of its members to the state of Alabama. (Abortion is another example: nobody thinks that the current Supreme Court would uphold a law saying that pregnant woman seeking abortions must register with the government, even though the right to an abortion is not as evident in the Constitution as the right to keep arms.)
Dave Kopel of the Golden, Colo-based Independence Institute takes a hybrid view of the constitutionality of registration. "Registration of militia guns, the gun which a person brings to militia service, to fulfill his militia obligation, is almost certainly constitutional," he says. "As for non-militia guns... the First Amendment parallel is Supreme Court rejection of registration of NAACP members."
So does Don Kilmer, the California attorney suing over concealed carry. "Based on the Second Amendment, registration can only be linked to militia service, such that you would be required for example to register militia-style weapons," Kilmer says. "You may be required to let the government know you have an AR-15, but you may not need to let them know that you have an over-under shotgun that you use for sporting clays and duck hunting. Of what good is a 12-gauge over-under going to be for the militia?"
Complicating matters is that not all registration laws are identical. One law might require centralized registration of all future handgun sales, while another could require reporting of all existing guns in private hands. And licensing laws like the District of Columbia's might demand more than registration -- but permission from the authorities -- before a gun can be owned legally.
Alan Gura, who argued the Heller case before the Supreme Court last year and seems to be heading there again in a lawsuit against Chicago, suggests a way to square the Second Amendment with 18th century history. "My answer on this would be, sadly, (registration) is constitutional although perhaps only if the government is serious about organizing a militia. The fact is that the framers had gun registration for this purpose, and the D.C. Circuit (in the case that led to Heller) specifically approved of registration being constitutional."
Translation: Because the District of Columbia isn't requiring its to denizens turn out on Saturday mornings for militia practice at the National Guard Armory on East Capitol St., its law might be unconstitutional. Maybe.
(Some state constitutions provide more protection for gun owners. Idaho's Constitution is unambiguous: "No law shall impose licensure, registration or special taxation on the ownership or possession of firearms or ammunition." And it's worth noting that after the Katrina debacle, Congress voted to prohibit federal officials from confiscating firearms after a "major disaster or emergency.")
In the past, some anti-gun types have tried to enact forms of mandatory national registration. An unsuccessful 1995 bill, H.R. 169, would have imposed California-style registration of handguns nationwide through a "federal handgun registration system." Violations would have been punished by up to 12 years in prison. The author of the bill, Rep. Cardiss Collins, D-Illinois, told her colleagues at the time that "I still believe the best way to control handguns is to ban them outright."
For the record, the Brady Campaign's Dennis Henigan says his group advocates mandatory registration of all future gun transactions, even between private parties. But it is not calling for registration of existing firearms.
Part of the problem in guessing exactly how courts will respond to challenges like the one involing the D.C. registration requirement is that the Heller majority decision didn't specify what kind of laws (except for ones relating to violent felons, or carrying guns in courthouses) are constitutional or not. It didn't even say how judges should approach the question.
"The question is not whether registration will or won't be upheld, but whether courts require the government to demonstrate a fit between means and ends of the sort they require when evaluating time, place, and manner regulations of speech," says Randy Barnett, a professor at Georgetown Law School who wrote in 1998 that the Second Amendment may "not preclude such gun regulations as registration." Barnett adds: "There should be no category of regulation--including registration--that can be adopted free of any showing that it is necessary to acheive a compelling government objective."
It's true that in some situations, registration has led to confiscations, and the 5-4 majority of the Supreme Court that views the Constitution as protecting the individual right to bear arms is a slender one. But then again, not all laws that may be divisive, counter-productive, and difficult to implement will be ruled unconstitutional.
Declan McCullagh is a correspondent for CBSNews.com. He can be reached at firstname.lastname@example.org. You can bookmark the Taking Liberties site here, or subscribe to the RSS feed.