Appeals Court: Government Can Require Gun Registration

[BloodEclipse]

Posted by Declan McCullagh

(AP)​

An appeals court in Chicago has ruled that the federal, state or local government can require all citizens to register their firearms under penalty of law.

A three-judge panel of the U.S. Seventh Circuit Court of Appeals said that, even after the Supreme Court's high-profile gun rights decision last year, the Second Amendment is no obstacle to mandatory gun registration.

The case arose out of the Chicago-area town of Cicero's mandatory registration requirement for firearms. A local man named John Justice was raided by the Cicero police on suspicion of violating business ordinances including improper storage of chemicals; the police discovered six unregistered handguns during the raid.

Justice runs the Microcosm laminating company on 55th Ave., which sells special adhesives and does custom coatings for customers, and argued in a civil lawsuit that the local ordinance violated the Second Amendment. He did not immediately respond to a request for comment on Wednesday.

In a 3-0 opinion published last Friday, the judges said that this was a different situation from the District of Columbia v. Heller case, which led the Supreme Court to strike down D.C.'s law effectively prohibiting the ownership of handguns.

"There is a critical distinction between the D.C. ordinance struck down in Heller and the Cicero ordinance," the court said in an opinion written by Judge Diane Wood, a Clinton appointee. "Cicero has not prohibited gun possession in the town. Instead, it has merely regulated gun possession under Section 62-260 of its ordinance."

If the court had merely written that the Second Amendment doesn't apply to the states (a concept called incorporation), this would not have been especially newsworthy. After all, a different three-judge panel from the 7th Circuit already has rejected the incorporation argument.

What's unusual -- and makes this case remarkable -- is that Wood went out of her way to say that even if the Second Amendment does apply to states, mandatory gun registration would be perfectly constitutional. "The town does prohibit the registration of some weapons, but there is no suggestion in the complaint or the record that Justice's guns fall within the group that may not be registered," she wrote. "Nor does Heller purport to invalidate any and every regulation on gun use."

The other judges on the panel were William Bauer, a Ford appointee, and John Tinder, a George W. Bush appointee.

I haven't been able to find the full text of Section 62-260 online (if you can, please send it to me). The Legal Community Against Violence's summary of firearm laws says that in Cicero, "all firearms in the City must be registered prior to taking possession of the firearm" and that registration certificates must be renewed every two years.

Alan Gottlieb, founder of the Second Amendment Foundation, said in an interview that registration is terrible public policy, especially because world history shows that it often leads to confiscation.

Last week's decision should remind us that Heller won't be the last word on gun rights, Gottlieb said. "It starts building blocks on a foundation -- you don't win everything in one case," he said. "As you and I know, criminals aren't going to register their guns. Prohibited persons aren't going to register their guns. Someone prohibited from owning a gun isn't going to register it. Registration would apply only to law-abiding citizens."

There is no national registration requirement for firearms, although anyone buying a gun from a dealer fills out a Form 4473, which the dealer must keep on file in paper form for 20 years. My home state of California says that all handguns be registered, but it's not as strict as Cicero's requirement (rifles and shotguns are exempt from registration).

David Kopel, research director at the Golden, Colo.-based Independence Institute, said: "I think Heller at least hints that (Cicero's regulation) might be unconstitutional. Registration of non-commercial transactions might be unconstitutional. At least it leaves the question open." (Kopel has pointed out that four Chicago suburbs repealed their handgun bans post-Heller.)

I happened to interview Paul Helmke, president of the Brady Campaign, earlier on Wednesday and asked him about what the Heller decision means for gun control. He replied: "Outside D.C.'s gun ban and perhaps Chicago's, there really probably aren't that many gun laws that are going to be affected by Heller. What I've argued is that Heller, in a way, took the extremes off the table. It said you can't have a total gun ban like D.C.'s. They also took the other extreme off the table, which is that anyone can have any gun, anywhere, any time."

Read literally, the Seventh Circuit's decision means that the U.S. Congress could enact a mandatory registration requirement tomorrow -- a law saying that you must report your handguns, rifles, and shotguns to the FBI and ATF or go to prison -- and at least one federal circuit would uphold it as constitutional.

But would the Supreme Court justices? A number of gun cases, including one brought by the National Rifle Association, another out of New York, and a third out of California, are headed in their direction. By next summer we may have an answer.

Update 1:38am ET: A helpful CBSNews.com reader, James E., was kind enough to point me toward the text of the town of Cicero's regulation. You can find it on Municode.com. The interface is awful, but if you poke around on the menus to the left under Chapter 62, Article VI, you'll find it.

It's a remarkable read. Cicero makes it illegal to possess "any slingshot," or any "laser sight accessory." Non-dealer firearm transfers are prohibited. Carrying a "concealed" knife is prohibited. The unlicensed sale of a "Bowie knife" is prohibited. A quick read shows that it is illegal to "fire or discharge any gun, pistol or other firearm within the town" except at licensed shooting ranges -- which I imagine poses a problem for residents hoping to use a gun for legitimate self-defense.

Anyway, the portion relevant to today's story says: "All firearms in the town shall be registered in accordance with this division. It shall be the duty of a person owning or possessing a firearm to cause such firearm to be registered. No person shall within the town possess, harbor, have under his control, transfer, offer for sale, sell, give, deliver, or accept any firearm unless such person is the holder of a valid registration certificate for such firearm. No person shall, within the town, possess, harbor, have under his control, transfer, offer for sale, sell, give, deliver, or accept any firearm which is unregisterable under this division." (Police, of course, are exempt.)

More news on guns... starting to see a pattern....

 

[Joe Williams]

This is a particularly alarming decision, since it's aimed SOLELY at controlling law abiding gun owners, with absolutely NO legal impact on criminals. As the judges surely know, criminals cannot be required to register their guns... the Supreme Court has already held that doing so violates their right against self incrimination.

 

[BloodEclipse]

or any "laser sight accessory."

Yeah those things can mow down the masses in a hurry.

 

[Bill of Rights]

This is a particularly alarming decision, since it's aimed SOLELY at controlling law abiding gun owners, with absolutely NO legal impact on criminals. As the judges surely know, criminals cannot be required to register their guns... the Supreme Court has already held that doing so violates their right against self incrimination.

Yep!

Let's see... Federal Appeals Court says that any gov't, whether fed, state, or local, can require ALL citizens to register guns

Supreme Court says that criminals cannot be required to register guns

If a law requires me to register my guns and I refuse, that makes me a criminal and I am therefore exempt, which vacates the conviction and again makes me a law-abiding, peaceable citizen. Sorry, "Woody".... We win, you lose. Sure is a b***h having that pesky Constitution overruling you, ain't it? Maybe you'd be more comfortable living someplace that didn't have that. Try Iran. Really. I'll help you pack. Case closed.

Blessings,
Bill

 

[Glockster]

It is simply incredible that judges can wholesale claim that the 2A doesn't apply to this or that. They all ignore "infringed". The Founders would be appalled.

 

[SC_Shooter]

Good Lord. What will these cooks come up with next?

I had the same question as Bill - If I refuse to register all my guns per the Appeals Court ruling, it would make me a criminal. Then, per the Supreme Court (read into that - overrides the Appeals Court) I can use the law against self incrimination to hide behind. Wow. How crazy is that?

I suspect that the Supreme Court would lean strongly toward hearing this case if it makes it to their level because of the apparent conflict between the two courts. Most of what they hear seems to be issues where lower courts have conflicting opinions.

Personally, I'd rather see all these resources invested in dealing with those who are wantonly breaking the law and harming others than in creating new ways for otherwise law abiding citizens to become criminals. Get the priorities rioght people!

 

[mrjarrell]

As Declan stated in the article we already have defacto registration in this country through the 4473. It's a backdoor registration and one the ATF and anyone can take advantage of anytime they bloody well please. Cicero's registration is just upfront. The courts are pretty much always going to side with a government, history proves that. Rarely so they side with the rights of the individual or the Constitution. Especially, when it comes to weaponry. Even that travesty Heller ended up favouring government, in the end.

Who writes the weekly check to these judges? A government. Impartiality? If you believe that I've got a bridge for you. We can look forward to many more decision such as this. The Nazghul sit and render their own justice upon us.

 

[Joe Williams]

As Declan stated in the article we already have defacto registration in this country through the 4473. It's a backdoor registration and one the ATF and anyone can take advantage of anytime they bloody well please. Cicero's registration is just upfront. The courts are pretty much always going to side with a government, history proves that. Rarely so they side with the rights of the individual or the Constitution. Especially, when it comes to weaponry. Even that travesty Heller ended up favouring government, in the end.

Who writes the weekly check to these judges? A government. Impartiality? If you believe that I've got a bridge for you. We can look forward to many more decision such as this. The Nazghul sit and render their own justice upon us.

But, the 4473 on several of our guns do not point to us, hence no registration. Nor will they ever be, regardless of what the law says.

 

[homeless]

I am going to get flamed for this however I do see some validity in this. If the registration is a simple form, is free of charge, and cannot be denied, then and only then would it 'Not Infringe'

While I do not like the idea of registration, it is an example of bad law, not unconstitutional law. It should be repealed in the state house, not the courtroom. I know what registration leads to, and this particular ordinance sounds like a weighted stepping stone. I think that the argument was wrong to over turn the law. Had they argued that the restrictions invalidated the law, the invalidated the ragistration requirement I would be behind them. However since modern legal cases (particularly reguarding the 2a) have become an excersize in semantics there isn't much that can be done with this.

In the end though I still belive that An Immoral man is at times in agreement with the law, and at other against it. A moral man however has little use for the law. If the man is truely moral and the law is at odds with him, then it must be the law that is immoral and since law must be moral, the law in invalid.

 

[henktermaat]

Time to sell all of my weapons to one of you guys, if you will sell yours to me in return.

 

[Fargo]

I ould point out that as it appears that the court had already ruled that the 2nd isn't incorporated, this language about registration would be what is know as "dicta" which means "things said in passing." This is because the registration determination is not what the case was decided upon; indeed it cannot be unless the court had already ruled that the 2nd is incorporated. As such, it would not bind in precedent or hierarchy upon any other court. Rather, it is just a liberal judge trying to bootstrap his/her agenda into the opinion.

 

[mrjarrell]

But, the 4473 on several of our guns do not point to us, hence no registration. Nor will they ever be, regardless of what the law says.

The 4473 has all the necessary info on you and your firearm to constitute a registration document. It must be kept for 20 years and handed over to the authorities on demand (or, in a just world with a subpoena). How can that form not be used to register you forearms should TPTB wish it?

 

[Joe Williams]

The 4473 has all the necessary info on you and your firearm to constitute a registration document. It must be kept for 20 years and handed over to the authorities on demand (or, in a just world with a subpoena). How can that form not be used to register you forearms should TPTB wish it?

Using your reasoning, the guns might be registered to whoever bought them. But they aren't registered to me. The one on my hip has been through at least two private transfers, some of ours have been through many more, and I don't leave paper trails on private transfers.