LOCKED, LOADED, AND REGISTERED: THE FEASIBILITY AND CONSTITUTIONALITY OF A FEDERAL FIREARMS REGISTRATION SYSTEM.

AuthorMcDonough, Dylan J.

INTRODUCTION

The federal government has long been hostile to the very notion of a gun registration policy. Aside from a spattering of narrow twentieth-century statutes, (1) Congress has had nothing to say about such a policy-or at least nothing nice to say. One law specifically barred agencies from implementing "any system of registration of firearms, firearms owners, or firearms transactions or dispositions," (2) and another forbade any "department, agency, officer, or employee of the United States" from using the National Instant Criminal Background Check System ("NICS") to establish "any system for the registration of firearms, firearm owners, or firearm transactions or dispositions." (3) For good measure, the regulation creating NICS reiterated the sentiment in identical language. (4) In each significant piece of firearm legislation, Congress included provisions that specifically reject a system of gun registration. This seems at first blush an inauspicious foundation for a federal gun registration system.

As Justice Louis Brandeis once reminded us, however, "It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country." (5) Heeding this sentiment, a number of jurisdictions adopted their own systems of gun registration. The District of Columbia, for example, passed into law the Firearms Control Regulations Act of 1975, part of which created a registration system for all firearms. (6) Hawaii's gun registration requirement rivals the comprehensive scope of Washington, D.C.'s law. (7) California and a handful of other states also have robust systems of gun registration. (8)

Legislation instituting a national gun registration program must be able to withstand a Second Amendment constitutional challenge. The Supreme Court has not yet ruled on the issue, but its Second Amendment jurisprudence indicates the legal framework it would likely employ in such an analysis. Fortunately, the U.S. Court of Appeals for the D.C. Circuit-working within the strictures of the Supreme Court's Second Amendment pronouncements-already addressed the very question of gun registration in Heller v. District of Columbia, first in Heller II (9) and again in Heller III. (10) The court found some more onerous requirements of the law violated the Second Amendment, but the core of Washington, D.C.'s gun registration system passed constitutional muster. (11) The constitutionality of a federal system of gun registration is therefore not a question of first impression.

The need for an effective gun policy is an urgent one. In 2019, 39,523 people died and 30,141 were injured from gun violence. (12) Taken together, gun violence directly harmed about 69,664 people in the United States in 2019 alone, (13) and the extent of the damage inflicted in that year is no outlier. (14) Considering as well the toll taken on the families and friends of those victims, violence inflicted with guns has had, and continues to have, a profound impact on the country at large. (15) The bare numbers illuminate a simple fact: there is a crisis of gun violence in the United States that Congress has yet to adequately address.

As vital as it is to our federal system of government to allow states to tinker with innovative policies, eventually those experiments must end and any successful findings should be implemented in jurisdictions beyond the original state "laboratory." And on the issue of gun safety legislation, the results are in. In states with more rigorous firearm regulations, fewer people die from guns, while in states with less rigorous firearm regulations, more people die from guns. (16) The correlation is incontrovertible and worth repeating: states with strong gun laws have the lowest gun death rates, and states with weak gun laws have the highest gun death rates. (17)

Despite the success of states in demonstrating the efficacy of tighter gun legislation, interstate gun trafficking stymies the ability of states to stem gun violence within their borders. The current patchwork of state laws is wanting for a system of federal regulation. The Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") collects data that traces the origins of guns used or suspected to have been used in crimes, and the numbers underscore that "most crime guns confiscated in states with relatively restrictive laws governing gun ownership and sales tend to have been first purchased... in a state that has more lax laws." (18) Even a brief analysis of ATF crime-gun trace data comparing the proportion of out-of-state crime guns to the stringency of that state's gun policies illustrates this pattern. (19) No matter how comprehensive a state's gun regulations, its efforts are partially undercut by a neighbor state with a dearth of gun regulations. The federal system was designed precisely for matters such as this-when the policy of one state harms the citizens of another, and particularly when the aggrieved state is powerless to remediate that harm, Congress must legislate. (20)

The implementation of a national regulatory program is no easy task, but this Note offers a viable path forward. Inspired by Congress blanching at the possible use of NICS data to establish a federal gun registry, one starting point to establish a federal gun registry is the use of NICS data. Although posited more disapprovingly than here, the National Rifle Association (NRA) succinctly explained the role of NICS in establishing a national gun registration system:

NICS would become a registry of firearm transfers if all firearm transfers were subject to NICS checks, the FBI retained records of approved checks indefinitely, and such records included information currently maintained on federal Form 4473s, which document the identity of a person who acquires a firearm from a firearm dealer, along with the make, model and serial number of the firearm acquired. Over time, as people would sell or bequeath their firearms, a registry of firearm transfers would become a registry of firearms possessed. (21) Transforming NICS into a national firearm registration system may overhaul the current system, but even so, it is better than building from scratch. The foundation and framework are sturdy; though extensive, the renovation need not raze the existing structure.

In advocating on behalf of the ingenuity of state policymaking, Justice Brandeis declared: "If we would guide by the light of reason, we must let our minds be bold." (22) Today, it is not enough for the states alone to effect bold policy visions. Gun violence is a national affliction, and none other than the federal government is sufficiently equipped to treat it. A system of firearms registration is a good place to start.

This Note is organized as follows. Part I outlines the evolving history of federal firearm legislation and its relevance to registration. Part I also presents promising state-level (or equivalent) systems of gun registration that may inform a like federal policy. Part II establishes the Supreme Court's Second Amendment jurisprudence and its potential application to federal firearms registration. Part III then details a lower court's application of Supreme Court precedent to existing firearm registration laws. Finally, this Note concludes by articulating how Congress can and why it must institute a federal firearms registration system.

  1. BACKGROUND ON EXISTING FEDERAL AND STATE FIREARM LAWS

    Before turning to specific systems of firearm registration, the history and current landscape of the policy is vital to understand. Part I will first examine the history of major federal gun legislation, then highlight examples of existing state-level firearm registration systems.

    1. Historical Federal Laws Relating to Firearm Registration

      The modern national political landscape has proven intractably indisposed to passing any sort of gun safety legislation, even in the face of tragic and widely publicized mass shootings. (23) But Congress has not always been this impotent. The following subsections will highlight the most significant federal gun laws of the past century, the effects of which still reverberate today. Most importandy, the failures and successes of these laws inform future gun reform efforts.

      1. The National Firearms Act of 1934

        Congress has not always legislated in accord with its recent hostility to a system of gun registration. The National Firearms Act of 1934 (NFA) is the earliest federal law regulating firearms that, though subsequently amended, remains in effect today. (24) As originally enacted, the NFA regulated machine guns, shotguns and rifles with barrels less than eighteen inches long, guns except for pistols and revolvers "capable of being concealed on the person," and any sort of muffler or silencer. (25) In addition to imposing various taxes, the law required all importers, manufacturers, dealers, and possessors to register these kinds of guns and gun accessories with the Secretary of the Treasury. (26) Failure to comply within the statutorily imposed time limits could result in criminal prosecution, with maximum penalties of a $2000 fine or five years in prison, or both. (27) Decades later in Haynes v. United States, however, the Supreme Court defanged the firearm registration regulatory power of the NFA by finding that, because registration was mandatory, and because "a prospective registrant realistically can expect that registration will substantially increase the likelihood of his prosecution," the law violated the Fifth Amendment's privilege against self-incrimination. (28) Once the Court tore its longstanding gun regulations asunder, Congress promptly acted to reassemble the tattered remains.

      2. The Gun Control Act of 1968

        To remedy this newfound constitutional defect, Congress amended the NFA with Title II of the Gun Control Act of 1968 (GCA). (29)...

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