The Right To Keep and Bear Arms in Self-Defense and Government Tracking Regulations:

In this post and the two that surround it on this chain, I continue blogging excerpts from my Implementing the Right To Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, which is forthcoming in a few months from the UCLA Law Review. But I particularly focus on analogies between the right to keep and bear arms and other constitutional rights, when it comes to waiting periods, taxes and fees, and government tracking regulations. Such analogies are often drawn, but usually between the right to bear arms and just one other right. I try to avoid cherry-picking my favorite rights to compare with, and instead look to how courts have dealt with similar questions as to a wide range of rights, including free speech, voting, abortion, and property rights.

The article is quite long, so I thought I'd just blog some excerpts; if you're interested in the broader framework the article discusses (a framework that separates the inquiry into the scope of the right based on its text, original meaning, and history, the burden that the restriction imposes on the right, the reducing-danger arguments for the restriction, and the government's proprietary role [if that's present]), please follow the link. Also, please remember: Not all unwise laws are unconstitutional laws, even where constitutional rights are potentially involved.

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Government tracking regulations -- nondiscretionary licensing regimes either for possession or carrying, instant background checks, registration requirements, serial number requirements, requirements that guns be test-fired and the marks they leave on bullets recorded, or requirements that all new semiautomatic guns must "microstamp" the ejected brass with the gun's serial number -- generally don't by themselves substantially burden self-defense. If the regulations contain some restrictions, such as waiting periods, fees, or denials of licenses to certain people (either as a class or in government officials' discretion), those might be substantial burdens. But the tracking regulation itself is not much of a burden on self-defense: A person is just as free to defend himself with a registered gun as he would be if the gun were unregistered.

In one high-profile constitutional law area, such requirements are indeed forbidden: Most speakers don't need to get licenses, or register their speech, or submit their typewriters for testing so that their anonymous works can be tracked back to them. Likewise, tracking requirements for abortions would likely be unconstitutional.

But this is not the normal rule for constitutional rights. Even speakers may sometimes need to register or get licensed. Parade organizers may be required to get permits. Ballot signature gatherers may be required to register with the government, and so may fundraisers for charitable causes, though such fundraising is constitutionally protected. People who contribute more than a certain amount of money to a candidate may be required to disclose their identities to the candidate, who must in turn disclose those identities to the government; lower courts have held the same as to people who contribute to committees that support or oppose ballot measures. The contribution disclosure requirements have been judged (and upheld) under a moderately strong form of heightened scrutiny; the other disclosure requirements have been upheld even without strict scrutiny.

Likewise, the Constitution has been interpreted to secure a right to marry, but the government may require that people get a marriage license. The Takings Clause bars the government from requiring people to leave their land unimproved and thus valueless, but the government may require a building permit before improvements are made.

People have a right to vote, under all state constitutions and, in practice, under the federal Constitution, but they may be required to register to vote. Whom they voted for has been kept secret, at least for a hundred years, but whether they voted and what party they belong to is known to the government, and is often even a matter of public record. Many of these requirements are instituted to prevent crime (chiefly fraud) or injury (such as the injury stemming from unsafe construction).

This of course leaves the question of what the right to bear arms is most like: those rights for which government tracking can't be required, or those rights for which it can be. I'm inclined to think that it is more like the trackable rights, and that it is the untrackable rights that are the constitutional outlier.

The rule barring licensing requirements for many kinds of speakers is in large part historical, stemming from an era when such licenses were discretionary and used to control which viewpoints may be expressed. It persists largely because of a continuing concern that some viewpoints may be so unpopular with the government or the public that people who are known to convey those viewpoints will face retaliation. Even so, some kinds of speakers may have to identify themselves to the government, when the speech poses serious concerns about fraud or corruption. The same worry about retaliation, coupled with a longstanding tradition of privacy of medical records, likely provides the cause for the no tracking rule for abortions.

Gun owners as a group have faced some hostility from the government and the public, but gun ownership is very common behavior, and there's safety in numbers: It seems unlikely that the government will retaliate against the tens of millions of gun owners in the country, who represent 35 percent to 45 percent of all American households. Gun carrying is both rarer and, if required to be done openly, more likely to viscerally worry observers. But mere gun ownership, if disclosed to the government rather than to the public at large, is not likely to yield a harsh government reaction, and registration requirements are thus unlikely to deter ownership by the law-abiding. (I set aside the question whether making gun ownership or concealed carry license records public under state open records acts might be unconstitutional.)

It's true that certain kinds of guns are rare and especially unpopular. But as I've argued above, the right to bear arms in self-defense should be understood as protecting a right to own some arms that amply provide for self-defense, not a right to own any particular brand or design of gun. (In this respect, it differs from the right to speak, which includes the right to convey the particular viewpoint one wishes to convey. Many kinds of arms are fungible for self-defense purposes in a way that viewpoints are not fungible for free speech purposes.)

It is not impossible that the government will want to go after gun owners, chiefly to confiscate their guns. This could happen if the government shifts to authoritarianism, and thus doesn't care about constitutional constraints and at the same time wants to seize guns in order to diminish the risk of violent resistance. Or it could happen if a future Supreme Court concludes the individual right to bear arms is not constitutionally protected, and Congress enacts a comprehensive gun ban. Some have argued that the Free Speech Clause ought to be interpreted from a "pathological perspective," with an eye towards creating a doctrine that would serve free speech best even in those times when the public, the government, and the courts are most hostile to unpopular speakers. Should the Second Amendment be interpreted the same way?

Here we may be getting to a topic that's outside the scope of this Article, because it requires us to think about whether the Second Amendment retains a deterrence-of-government-tyranny component as well as a self-defense component. I'm inclined to be skeptical of the ability of either constitutional doctrine or private gun ownership to constrain the government in truly pathological times. I'd like to think that either or both would provide a material barrier to such pathologies, but I doubt that this would in fact be so, especially given the size and power of modern national government. Nonetheless, figuring this out requires thinking through the deterrence-of-government-tyranny rationale, something I have not done for this Article.

For now, I'll leave things at this: The tracking requirements likely don't themselves impose a substantial burden on the right today. Such tracking requirements aren't generally unconstitutional as to other rights, though they are sometimes unconstitutional as to some rights. And the key question is the extent to which current doctrine should be crafted with an eye towards a future time when the doctrine or government practice may be very different than it is today.