As perhaps the main person on this list who has been making the argument that is it not just unfair but unconstitutional, I will summarize the arguments one more time. See http://www.constitution.org/col/psrboa.htm for my law review article with a more expansive argument.
1. The constitutional prohibitions of bills of attainder and ex post facto laws (Art. I Sec. 9 & 10), and of depriving persons of life, liberty or property with due process of law (Amd. 5), are essentially equivalent ways of stating the same right against having one's constitutional rights disabled legislatively, but only by judicial due process, with the burden of proof on the petitioner seeking the disablement.
2. What makes disablement of the rights of persons convicted of a crime to vote or have firearms unconstitutional is that the disablement is not an explicit element of the sentencing order. The petitions of criminal prosecutors do not in general ask the court to disable the right to vote, or the right to keep and bear arms, but only the right of life, liberty for some specified period of time, or property in the form of money and in some amount of it, all in accordance with the statutory penalties for the crime with which the defendant is being accused. If the defendant is convicted, such conviction is authorization to the president of the court to issue a sentencing order (perhaps after a sentencing hearing), that disables the rights specified in the petition, up to a point specified by law.
3. If the sentencing order does not contain an explicit disablement of rights not sought in the petition, then it is a violation of due process and the prohibition against bills of attainder to then invoke a statute that makes it a crime to exercise another right that had not been disabled. It is not sufficient that due process was done with respect to another right. Due process must be done for each right, it must be explicitly argued for each right, and each right must explicitly disabled.
4. A statute that disables the right of convicts beyond what rights were disabled by the sentencing order is a bill of attainder, and perhaps an ex post facto law as well. It is the legislative disablement of a right of an individual, an identifiable group, or the people as a whole.
5. Constitutionally, there are only two ways a right may be disabled, or restricted. Either as a way to resolve a dispute between private parties involving a conflict of the exercise of their rights, or as punishment for the violation of someone's rights, in accordance with a statute that specifies the penalty. Nothing else is permitted. The class of those convicted of a crime is not an exception to the classes of persons who, if made the subject of a legislative act disabling rights, would constitute a bill of attainder.
Now. Please try to refute the above line of argument, by logic from original understanding of the Constitution, not by current practice.
As for registration, there is constitutional authority to do certain kinds of registration, but only for certain purposes:
1. To ask each militiaman to declare what weapons he will bring to a militia muster, if he can only bring one or a few.
2. To have an inventory of weapons available for militia, or that militiamen are willing to use for militia, to be able to plan militia operations. (Which means they would not need to register all, but only as many as they chose to make available.)
3. To prevent theft and enable the return of stolen property to its rightful owner, or to maintain accountability for the use of firearms issued to or shared among militiamen, to make sure each is returned to its proper owner by the militiaman to whom it was loaned.
4. To enable standards of manufacture and distribution, so that, e.g., .556 ammo will reliably fire in rifles labeled as .556 caliber, and bad runs that fail to qualify can be traced to the defect in the manufacturing operation.
We may be able to identify a few other such reasonable registration regulations.
But it should be clear that none of these impair the use of firearms for legitimate militia purposes. Indeed, they only facilitate such use. And that is the only purpose for which regulations might be imposed.
Again, keep in mind that "self-defense" is militia, although it would be more accurate to say it is "defense of a member of the community" -- who happens to be oneself. There is nothing in the concept of militia that requires call-up by an official, or requires more than one person acting in concert, unless more than one are present and their common action is needed for effective defense. Militia can be done by one person acting alone, called up for militia by himself, on his own authority and the perception of a threat to the community. It is the threat, not the position, that confers authority to issue a call-up to anyone present.
Clayton E. Cramer wrote:
If it's unfair to penalize ex-felons with loss of voting rights, it's at least as unfair to penalize non-felons with potential punishment for failing to register a gun.
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