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7th Circuit Says Gun Registration is OK. Guns at Obama protests:

Last week, the 7th Circuit Court of Appeals decided a case involving the Cicero, Illinois, gun registration ordinance. Full coverage of the decision is available in an article for CBS News, by Declan McCullagh. (And be sure to check out Declan's new Taking Liberties weblog.) The decision is written by Supreme Court short-list Judge Diane Wood.

The Wood opinion first cites circuit precedent, accurately, for the fact that the Second Amendment is not incorporated in the Seventh Circuit. The decision goes on, however, to declare that the Second Amendment would not be violated even if it did apply. That portion of the decision has very little reasoning; it simply says that Cicero (unlike D.C., in Heller) does not ban guns. Ergo, the Cicero registration law is constitutional.

The Wood opinion quotes some language from Heller, which provided a non-exhaustive list of presumptively constitutional gun control laws. Yet this list, to the extent that it is relevant, cuts against the Cicero ordinance. Included in the Heller list are: "laws imposing conditions and qualifications on the commercial sale of arms." This would suggest that the gun registration system created by the federal Gun Control Act of 1968 would probably be upheld. The gun is registered at the time of sale, and the registration paperwork (the federal 4473 forms) must be retained by the dealer. The forms are available to law enforcement, without need for a warrant, in the course of bona fide criminal investigations. The 1968 GCA was a compromise; it created registration (which was the primary objective of gun control advocates at the time) but had the registration records maintained in decentralized locations (at the dealers) rather than consolidated by the federal government (since Second Amendment advocates worried that centralized registration might one day be abused in order to implement gun confiscation, as it had been under Nazis).

Cicero's ordinance, however, goes far beyond registration of "commercial sale," and requires that anyone who simply possesses a gun must re-register it every two years. Accordingly, the Cicero ordinance is not within the scope of Heller's presumptively constitutional laws. The Wood court, if it wanted to provide dicta about the constitutionality of registration, should have provided some legal analysis, rather than merely asserting that the Cicero ordinance was constitutional. (The CBS article explains some other features of the Cicero law; the ban on laser scopes strikes me as almost certainly unconstitutional, and the ban on slingshots seems dubious.)

A second issue in the news has been the fact that when President Obama spoke at the Phoenix Convention Center recently, several protestors on the sidewalk outside the center carried firearms openly, as is lawful in Arizona. I've been the Phoenix Convention Center, which is immense. There is no possibility that a person with a gun outside the Center could pose the slightest threat to a person speaking in one of the rooms inside the Center. The White House, commendably, said that the President had no objection to the protesters. However, I think that the protesters probably hurt, rather than helped, the Second Amendment cause. This article in the Christian Science Monitor quotes me to that effect. I did an iVoices.org podcast on the topic, to which I will provide a link when it is uploaded.

Finally, shame on MSNBC for dishonestly injecting racism into the controversy, and claiming that the gun carrying may have had "racial overtones." Actually, as Newsbusters has pointed out, the black rifle was being carried by a black man.

Related Posts (on one page):

  1. More on gun registration, and guns at POTUS speeches:
  2. 7th Circuit Says Gun Registration is OK. Guns at Obama protests:
Melancton Smith:
The purposely edited the footage to hide that fact that the rifle carrier was black. It is a shameful deliberate lie so that they could push their broader lie charging protesters with racism.
8.20.2009 3:10pm
shertaugh:

"The Wood opinion first cites circuit precedent, accurately, for the fact that the Second Amendment is not incorporated in the Seventh Circuit."


I don't care what you say, there's no way a Democrat ever "accurately" cites precedent. They strictly legislate from the bench.
8.20.2009 3:12pm
fnook (mail):
Finally, shame on MSNBC for dishonestly injecting racism into the controversy, and claiming that the gun carrying may have had "racial overtones." Actually, as Newsbusters has pointed out, the black rifle was being carried by a black man.

Fair enough, but pointing out that the rifle was carried by a man with dark skin complexion doesn't necessarily settle the issue. What if he was put up to it by associates that do harbor racial animus toward the president? After all, the fervency of the opposition to the mundane issue of "health reform" suggests to me that there's something else, in addition to the specifics of health reform legislation, motivating a non-trivial number of the protesters.
8.20.2009 3:13pm
fnook (mail):
I don't care what you say, there's no way a Democrat ever "accurately" cites precedent. They strictly legislate from the bench.

All generalizations are bad (;=)), but this one is worse than most.
8.20.2009 3:15pm
Nunzio:
Although DK is correct that Heller is silent on whether or not individual firearms registration requirements are unconstitutional or not unconstitutional, why would requiring individuals to register their guns with local authorities be an infringement of the individual right to keep and bear arms?

I see why people might not like it, but it seems like a regulation not an infringement.
8.20.2009 3:18pm
Constantin:
After all, the fervency of the opposition to the mundane issue of "health reform" suggests to me that there's something else, in addition to the specifics of health reform legislation, motivating a non-trivial number of the protesters.

One-sixth of the American economy, and, as both sides are arguing, fundamentally redefining the relationship between the citizen and the State. That's probably enough for even non-racists to get exercised about.
8.20.2009 3:22pm
Dan Hamilton:
It is one of the most frightening things that gun registration can be constitutional. The every two years or the cost may make the Cicero scheme unconstitutional but overall registration can be constitutional.

It is stupid because most gun owners will not comply. Just look at Canada.

But that is the purpose! Turn gun owners into criminals as has been done in Chicago when someone has failed to re-register their weapons each year or in the case of Cicero every two years. Also anyone who doesn't register everything becomes a criminal.

It needs to be ruled unconstitutional. The ONLY purpose it has ever served is to make gun owners criminals or to confiscate their guns. Both have been done in recent years. Confiscation in California and New York with so called assualt rifles. So the only use for registration is to infrienge on gun ownership.

Fear registration. They are trying to turn you into a criminal and take your gun rights from you.
8.20.2009 3:23pm
PersonFromPorlock:
As I said before, Heller allows for Constitutional rights to be subject to licensing prior to their being exercised. We really need to push licensing journalists, it'll get their attention.
8.20.2009 3:26pm
DangerMouse:
Fair enough, but pointing out that the rifle was carried by a man with dark skin complexion doesn't necessarily settle the issue. What if he was put up to it by associates that do harbor racial animus toward the president? After all, the fervency of the opposition to the mundane issue of "health reform" suggests to me that there's something else, in addition to the specifics of health reform legislation, motivating a non-trivial number of the protesters.

Man with a dark skin complexion? Good lord.... The guy was black. African-American. What, do you want to test his blood also? What a pathetic way to minimize him, and his free will, with your words, and also insuination that he was put up to it by racists.

Hey, here's a radical thought: perhaps people are against Government run healthcare, because they're against government run healthcare!?! Egads, that could just be it! After all, I seem to recall that America was in a cold war against a state system in which we stood on the side of individual freedom as opposed to the massive bureaucracy of the state. And I also recall that an amazingly popular president was elected on his message that "Government is the problem," and that another President was to declare "The Era of Big Government is Over." And perhaps that there are people who still harken to those words. Or, you know, we're all racists.

This racism crap is such an act of desperation. Wolf! Wolf! Wolf! Racist! Racist! RAAAAAAAAAAACIST!
8.20.2009 3:29pm
Dan Hamilton:

Fair enough, but pointing out that the rifle was carried by a man with dark skin complexion doesn't necessarily settle the issue. What if he was put up to it by associates that do harbor racial animus toward the president?


He was carring a PRO-OBAMACARE sign surrounded by pro-Obamacare people. It was a setup.

What part of demonizing gun and anti-Obamacare people don't you understand?

What happened WAS PLANNED well in advance.
8.20.2009 3:29pm
Cato The Elder (mail) (www):

After all, the fervency of the opposition to the mundane issue of "health reform" suggests to me that there's something else, in addition to the specifics of health reform legislation, motivating a non-trivial number of the protesters.

This is how they really think! This weak logic is common to their many policy positions. When a leftist sees something that has disparate impact, e.g., opposition to Obamacare, and not to the suggested Republican reforms, then the burden shifts to you to justify that your feeling isn't disparate treatment, e.g., outrageous "racism"! This same sort of thinking is on full display in the VRA thread as well. It's insane.

By the way, fnook, that was a clever rhetorical trick to turn the word "Black" into the clumsy phrase "man with a dark skin complexion" so you could continue to insinuate the point. Much deserved props.
8.20.2009 3:30pm
Melancton Smith:
fnook wrote:

After all, the fervency of the opposition to the mundane issue of "health reform" suggests to me that there's something else, in addition to the specifics of health reform legislation, motivating a non-trivial number of the protesters.


I hope this is sarcasm, as only a complete idiot would consider this healthcare reform to be mundane. Granted socializing medicine in this manner does not turn us into a socialist nation, but it is a step down the road to socialism and free thinking individuals don't want what is at the other end of that road. Forced labor, purges, gulags, etc. Capitalism works by incentivising workers with financial compensation...the carrot. Socialism works by using the stick.
8.20.2009 3:33pm
Steve:
At least one person has recognized the possibility that fnook might have been sarcastic... hello, it was pretty obvious sarcasm folks.
8.20.2009 3:41pm
Matt_T:
Fair enough, but pointing out that the rifle was carried by a man with dark skin complexion doesn't necessarily settle the issue. What if he was put up to it by associates that do harbor racial animus toward the president?

What if he was possessed by the ghost of a Confederate general? Exactly how absurd do you want to make your speculation?

After all, the fervency of the opposition to the mundane issue of "health reform" suggests to me that there's something else, in addition to the specifics of health reform legislation, motivating a non-trivial number of the protesters.

Appeal to ignorance.
8.20.2009 3:41pm
DangerMouse:
The only proper way to spell "racist" these days is with at least 6 "A"s. The more "A"s, the more you can properly convey how ludicrous and preposterous the charge is.

Example 1: "John Smith is a RAAAAAACIST." That's your normal, everyday racism that Libs think all non-Libs have.

Example 2: "Obamacare protesters are RAAAAAAAAAAAAAACIST." This is supposed to convey super-duper raaaaaacism, such as what Libs think that actual conservatives have.
8.20.2009 3:44pm
Archon (mail):
Looks like the defendant John Justice may have had another interesting case in front of the 7th Circuit before (if it is the same John Justice.)

It appears to be a Fourth Amendment case, but he refuses to plead that the Fourth Amendment is applicable to the states through the Fourteenth Amendment because that amendment was never properly ratified. Here is probably the most interesting passage from the ruling:

"Indeed, we might well be violating Mr. Justice's rights under the First Amendment if we forced him to maintain this suit under the Fourteenth Amendment. It would compel an association that he finds offensive on ideological grounds. See, e.g., Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977); West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). He had a choice between principle and interest--between repudiating reliance on the Fourteenth Amendment, which he abhors, and swallowing his abhorrence and pleading under it. He chose principle. We are bound by his choice whatever we personally might think of it. See Gay Student Services v. Texas A &M University, 737 F.2d 1317, 1329 (5th Cir.1984)."
8.20.2009 4:02pm
Roger Ford (mail):
No link to the opinion itself? I thought this was a law blog.


[DK: Trying to get people to read the CBS article, which contains a link to the opinion.]
8.20.2009 4:03pm
Kazinski:

He was carring a PRO-OBAMACARE sign surrounded by pro-Obamacare people. It was a setup.


That's just not true. It was not a setup by Obama supporters. If it was a setup they wouldn't have picked a black man, so MSNBC wouldn't have had to censor the footage to hide that he was black. Here is some more information here, and photos about the incident.
8.20.2009 4:07pm
Soronel Haetir (mail):
At this point the only registration schemes I expect to fail would be those that fail applicants for arbitrary reasons, not how many hoops one has to jump through and keep jumping through after approval.
8.20.2009 4:07pm
MAM:
Mr. Kopel must certainly know that there can be a racist undertone even if the person carrying the gun is of the same race.
8.20.2009 4:26pm
wfjag:
@Kazinski:

That's just not true. It was not a setup by Obama supporters. If it was a setup they wouldn't have picked a black man, so MSNBC wouldn't have had to censor the footage to hide that he was black. Here is some more information here, and photos about the incident.

Hmmm???? Guy wearing starched, white, button-down shirt and conservative tie in Arizona surrounded by people carrying signs supporting Obamacare.

Inescapable conclusion: Obviously a Mormon missionary trying to convert Obots.
8.20.2009 4:38pm
Sarcastro (www):
It's a conspiracy! There is no such thing as a True Conservative gun protester. Additionally, there is no such thing as an actual racist anymore - all accusations are false.

Finally, I was totally the one who wrote "I don't care what you say, there's no way a Democrat ever "accurately" cites precedent. They strictly legislate from the bench." It was me, and I in no way wish I had come up with that post myself.
8.20.2009 4:46pm
DangerMouse:
Additionally, there is no such thing as an actual racist anymore - all accusations are false.

Hey, blame the libs for crying wolf on that one, bucko.
8.20.2009 4:52pm
Sarcastro (www):
And after the boy cried wolf enough, all wolves were killed forever.

And everyone else lived happily ever after.
8.20.2009 4:56pm
Sarcastro (www):
[Though I do agree with DangerMouse to the point that there is a contingent on the left that sees everything through race and is loud about it. Likewise gender.

Of course on the right, there is similar tunnel vision with respect to seeing everything as a facet of illegal immigration, *ahem* abortion, etc. Plus "white male" victimization is coming on strong these days as well.

It is unfortunate having a simple but consistent world view is so comforting.]
8.20.2009 5:00pm
AnthonyJ (mail):
It needs to be ruled unconstitutional.
Gee, judicial activism much? You may think registration is undesirable, but it should only be ruled unconstitutional if it is in fact unconstitutional.
8.20.2009 5:09pm
AndyinNc:
By the same bulletproof logic of Kopel's post, Alan Keyes and Michael Steele prove that there are no racists in the Republican party.
8.20.2009 5:33pm
ShelbyC:
The color of the man's skin has nothing to do with whether or not he is a racist. What matters is whether or not he agrees with Obama.
8.20.2009 6:05pm
Maurice Ross (mail) (www):
I do not understand how the author can say that the regulation is not presumptively valid under Heller. It clearly is presumptively valid--Heller allows gun registration systems, and surely a system that requires periodic renewal (i.e., every two years) will be upheld. Heller made clear reasonable regulations of guns in support of legitimate governmental interests, such as avoiding violence, protecting the public from criminals, protecting the public from harms that may result from carrying guns into public places etc will be upheld. In reality, Heller is academically interesting, but it changes virtually nothing of practical importance concerning regulation of firearms.
8.20.2009 6:17pm
flashman (mail):
I agree with Mr. Kopel that openly carrying a firearm at an Obama event, even if its legal, does nothing to help gun control opponents. The fact that the man was black (conspiracy or not) also doesn't matter in the long run. I agree with Mr. Kopel that openly carrying a firearm at an Obama event, even if its legal, does nothing to help gun rights. The fact that the man was black (conspiracy or not) also doesn't matter in the long run. Yes, African-Americans can support gun rights too, but what was interesting is how this small fact was glossed over since having a black man carrying a gun in public doesn't fit the progressive left's self image. Conversely, if you want to rile up the racists that do still exist, give them the specter of an armed black man. Speculating on the motives of the man doesn't get anyone very far without further information. However, what can be concluded from the event is what Mr. Kopel has argued: it doesn't help gun rights. It wasn't the time or the place, though it did get the desired attention.
8.20.2009 6:26pm
Carl in Chicago (mail):
I am saddened to read such petty bickering in the comments on the Volokh Conspiracy.
8.20.2009 7:22pm
Gabriel McCall (mail):
DangerMouse: How many "a"s are proper in the phrase "racism straight up"?
8.20.2009 7:25pm
CDR D (mail):
>>The only proper way to spell "racist" these days is with at least 6 "A"s. The more "A"s, the more you can properly convey how ludicrous and preposterous the charge is.

Example 1: "John Smith is a RAAAAAACIST." That's your normal, everyday racism that Libs think all non-Libs have.

Example 2: "Obamacare protesters are RAAAAAAAAAAAAAACIST." This is supposed to convey super-duper raaaaaacism, such as what Libs think that actual conservatives have.<<<




No, I think the Jeaneanne Garofolo pronunciation is more melodious:

Race-IZZZZZ-UMMMMM.

Sorry, Ms Barfolo, but it's really about the Social-IZZZZZ-UMMMM.
8.20.2009 7:35pm
LarryA (mail) (www):
Although DK is correct that Heller is silent on whether or not individual firearms registration requirements are unconstitutional or not unconstitutional, why would requiring individuals to register their guns with local authorities be an infringement of the individual right to keep and bear arms?
Used to be whenever you registered to vote you had to pay a little poll tax, and take a literacy test. The procedures were so blatantly abused in so many locations in so many times that courts eventually cried enough. Propose reinstituting either to a minority today and you'll really get called racist.

And the issue isn't just of historical interest. The Texas Legislature this year had a huge dustup over whether photo IDs should be required when voting.

Shouldn't we be as protective of the right to keep and bear arms? Given the long and discriminatory history of firearms registration, which (I'm looking at you, Chicago) continues to this day, and its proven uselessness as a public safety tool, it should be sent the way of the poll tax and literacy test.
8.20.2009 8:12pm
gerbilsbite:
Setting aside protesters who say (as the man in NH with the unfortunate sign did) that they are packing heat for home/personal/national defense (which are of course protected purposes under 2A), would carrying a gun for purposes of political speech fall under the 2A's protections?
8.20.2009 11:42pm
PersonFromPorlock:
gerbilsbite:

...would carrying a gun for purposes of political speech fall under the 2A's protections?

I've often wondered, a little tongue-in-cheek, if a favorite rhetorical device of gun controllers, the phrase "What sort of message does it send..." couldn't be worked up into a First Amendment defense of the RKBA.
8.21.2009 12:39am
Glen Alexander (mail):

I do not understand how the author can say that the regulation is not presumptively valid under Heller. It clearly is presumptively valid--Heller allows gun registration systems, and surely a system that requires periodic renewal (i.e., every two years) will be upheld. Heller made clear reasonable regulations of guns in support of legitimate governmental interests, such as avoiding violence, protecting the public from criminals, protecting the public from harms that may result from carrying guns into public places etc will be upheld.
Maybe if you read the majority opinion (as opposed to the dissents) you might understand why gun registration is questionable. The Heller court specifically declined to address licensing requirements.

Furthermore, it was Justice Breyer who proposed a judge-empowering "interest balancing inquiry" that "asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute's salutary effects upon other important governmental interests." The majority rejected this approach, instead holding that "the very enumeration of the right takes out the hands of government — even the Third Branch of Government — the power to decide on a case-by-case basis whether the right is really worth insisting upon."

Heller has already had a substantial impact on firearms regulations, and will likely continue to do so for many years to come.
8.21.2009 2:35am
Steve in CT:

Although DK is correct that Heller is silent on whether or not individual firearms registration requirements are unconstitutional or not unconstitutional, why would requiring individuals to register their guns with local authorities be an infringement of the individual right to keep and bear arms?

I see why people might not like it, but it seems like a regulation not an infringement.


It seems clear that Heller did not rule out registration, but a question I have is at what point does registration become onerous upon the law abiding? How effective is firearm registration against crime? I suppose it's not necessarily in the purview of the courts to find legislation unconstitutional just because it ineffective.

Dan Hamilton makes a good point about making typical citizens into criminals using registration. Massachusetts did this several years ago when it changed its licensing from lifetime to a 5 year renewal. It is likely that 10's of thousands of MA residents are now criminals for not renewing their licenses, even though they and their firearms have never injured another party.
8.21.2009 4:17am
Brett Bellmore:

I agree with Mr. Kopel that openly carrying a firearm at an Obama event, even if its legal, does nothing to help gun control opponents.


Actually, I believe it does help: One of the long term strategies of the gun control movement has been to "denormalize" the carrying of firearms. Used to be, you'd see somebody with a gun on a bus, or even loading it into the overhead baggage on a plane, and not even blink. Now, it results in alarm, because it's not a common event. People stop thinking of gun ownership as normal, because unless they're gun owners, they don't SEE guns, except maybe on TV in crime dramas.

Open carry is intended to renormalize the carrying of firearms. It's very similar to the standard treatment for phobias. And there's evidence it's working.
8.21.2009 7:34am
Martha:

The purposely edited the footage to hide that fact that the rifle carrier was black. It is a shameful deliberate lie so that they could push their broader lie charging protesters with racism.

??? I was visiting relatives who watch MSNBC and only MSNBC and I saw the black guy numerous times. Definitely he was shown on Countdown. I wasn't really listening to KO so I don't know what the commentary was, but if the MSNBC editors really meant to obliterate the image of a black guy w/rifle, they are pretty bad at their jobs.
8.21.2009 11:49am
ShelbyC:

I wasn't really listening to KO so I don't know what the commentary was, but if the MSNBC editors really meant to obliterate the image of a black guy w/rifle, they are pretty bad at their jobs.


It was edited when it was being used as the lead to the racisim commentary.
8.21.2009 11:55am
RKV (mail):
So by the same logic it's OK to register printing presses? Yeah, fill out a 4473 every time you post to your blog?

If I can rephrase Cantwell vs. Connecticut...

"to condition the [right to keep and bear arms] upon a license, the grant of which rests in the exercise of a determination by state authority ... is to lay a forbidden burden upon the exercise of liberty protected by the Constitution."
8.21.2009 12:22pm
RKV (mail):
See also Murdock v. Commonwealth of Pennsylvania Justice Douglas quoting Blue Island v. Kozul (Il.)...

"a person cannot be compelled 'to purchase, through a license fee or a license tax, the privilege freely granted by the constitution."
8.21.2009 12:36pm
martinned (mail) (www):
@RKV: Question: Would it be constitutional for the US government to refuse to issue passports, or do US citizens have a constitutional right to leave the country?
8.21.2009 1:33pm
ShelbyC:

Would it be constitutional for the US government to refuse to issue passports, or do US citizens have a constitutional right to leave the country?


US Law doesn't require you to have a passport to leave the country.
8.21.2009 5:42pm
PKO Strany (mail):
If the First Amendment protects nude lap dancing as protected speech, then it surely protects carrying arms as political speech.
8.21.2009 5:59pm
hlm (mail):
Yes it was a set up but not by Obama but by a Phoenix clown who besmirches the name of libertarianism every time he opens his very big mouth. It was a stunt pulled off by a guy named Ernie Hancock, who is a wacko 911 conspiracy theorist who pals around with the lunatic right but pretends to be a libertarian. That's a shame because he does a lot of harm to libertarian ideas. And this is just another example of how he does it. He's a loose canon. Unfortunately the loose canon also has a few loose screws. And means one has to be careful around it.
8.22.2009 4:05am

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