Title: Re: discussion: is gun registration unconstitutional?
Sorry, but this seems to be just making stuff
up. It doesn't seem like a textual argument, because it doesn't explain
how the text supports the claim. It doesn't seem like an original meaning
argument, because it doesn't cite any relevant documents (unless the author is
somehow just channeling the Framers). It isn't an argument for precedent,
because there's no precedent that supports it. It doesn't look an argument
by analogy to other legal rules, because it doesn't cite the rules or explain
why the analogy is sound.
It's probably an argument about what
rules courts should devise in order to implement the constitutional text.
But if that's so, it should be cast in terms somewhat more tenuous than "there
is constitutional authority"; and beyond that, it should explain why these are
the right rules. Is the test that registration is permissible only when it
advances the arming of the militia? If so, why? Is it that
registration is permissible only when it "doesn't impair the use of firearms for
legitimate militia purposes"? If so, then why are the purposes listed
there the "only" ones?
Folks, this list is aimed (in
relevant part) at discussion of constitutional questions, in a way that will
help scholars doing research on U.S. constitutional law. (It's also aimed
at discussion of other matters, such as the criminology of gun control, but I
focus here on what this post is relevant to.) That means that if you want
to argue about what the law is, you should cite authority that supports your
view. If you want to argue about what rules courts should craft, you
should explain why courts should craft these rules (and even here it would be
helpful if you could cite and discuss existing legal principles that help
support your argument). Ipse dixits of the form "This is the law," with no
support other than "I said so, and I think this is logical," don't cut
it.
I realize that this is somewhat
constraining to those who have a different understanding of how legal argument
should be conducted. Nonetheless, I'm afraid that this is the rule I
insist on as the list custodian.
Eugene
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.
