NRA: Gun Licensing and Registration "Tougher To Criticize" Now

In the aftermath of the Supreme Court ruling on the Second Amendment, it's been my hope that it might be easier to find some common ground on steps to help reduce gun violence in this country now that the extremes of the gun control debate (gun confiscation on the one hand and the absolutist "any person, any place, any gun" on the other hand) have been rejected by the Court.

Some sense that this might be possible came out of a PRI (Public Radio International) show that I was part of a couple days ago. The "To the Point" show on Tuesday, July 1, hosted by Warren Olney involved a discussion of the Heller case and its implications for the future with Robert Levy from the Cato Institute, LA Chief of Police William Bratton, me, Chuck Michel (described for the show as the Chief Attorney for the NRA), and former Guns & Ammo magazine editor Whit Collins.

After I brought up the numerous permissible restrictions and limitations on the "right to keep and bear arms" outlined by Justice Scalia in Heller, including his references to possible licensing of gun owners and registration of guns, the host asked the NRA representative his thoughts as follows (at 25:00/50:04):

Warren Olney: What about registration and licensing?

Chuck Michel: I think that, well, that's a very interesting question. The problem has always been that registration and licensing led to confiscation and I think, I still think registration and licensing is really - it's problematic in multiple respects, privacy reasons and that kind of thing, but I think that now that, you know - there are a lot of people in the gun control movement who are really gun ban, banners. They're in favor of civilian disarmament. Those folks are never going to get their way now as a result of this opinion, so I think licensing and registration is, it's going to be tougher to defend, or, I should say tougher to criticize."

Olney: Oh so, in other words, licensing and registration are more likely to be upheld?

Michel: Yes, particularly if it's - and I'm not saying I necessarily agree with that - but particularly if there are actual licenses issued. A lot of times, what the problem with licensing and registration is that the system is abused. It's set up, theoretically, to actually issue a license, but you can't really get one. That was sort of the situation in Washington, D.C. So those licensing schemes which are illusory I think are all going to be struck down. If you have actual, a good faith licensing system in place that complies with due process notions, and you know, procedural notions of constitutionality, then I think those will probably stand.

After this, the radio host asked for my response:

Olney: ...Paul Helmke, back to you, Brady Center To Prevent Gun Violence, what are you hearing from Chuck Michel that either reassures or disturbs you about what's gonna happen next?

Paul Helmke: Well, I was very happy to hear the comments about licensing and registration because really that could be one of the crucial things that could help make our communities safer. If we knew who had the guns and where they were, and made sure that they passed some basic level of testing, knowledge of the laws before they had the guns, that makes sense. We're not a gun ban organization. We don't push for gun bans. But we do feel that things like licensing and registration, real licensing and registration, things like background checks, restrictions on military style weapons, can make a difference here, and I think Justice Scalia allows that. And for the - for Chuck at least - and the NRA hopefully to recognize that licensing and registration might make sense, I think is a step forward. My hope with this whole decision is that by eliminating the extremes, the extreme on the one side of a gun ban, and the extreme on the other side of "anybody can have any gun, anywhere, any place, any time" - by eliminating the extremes, maybe we can get this middle-of-the-road, common-sense discussion in the middle, and try to figure out what really works here.

Then the host returned to Mr. Michel as follows:

Olney: Chuck Michel, when people say "military-style" we hear about assault weapons, you said something earlier about various classes being banned, is that an area where you think there will be litigation?

Michel: Well, let me just first clarify, so I don't get overly criticized by the members of the NRA that may be listening, you can't license a civil right. So, I'm not talking about a license to own a gun or to have a gun. There are certain types of licensing which will survive and others that won't....

I'm not sure what kind of license Mr. Michel thought he was talking about, but his original statement speaks for itself.

From Heller's attorney's statement at the March 18 oral argument...

"We don't have a problem with the concept of licensing... So long as the licensing law is not enforced in an arbitrary and capricious manner, so long as there are some hopefully objective standards and hopefully some process...."

...to Justice Scalia memorializing that statement in his opinion...

Respondent conceded at oral argument that he does not "have a problem with . . . licensing" and that the District's law is permissible so long as it is "not enforced in an arbitrary and capricious manner."

... Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.

...to one of the NRA's chief lawyers now saying positive things about the possibility of gun licensing and registration, maybe we really are on the way to finding some common ground here.

We still make it too easy for dangerous people to get guns. Now that gun confiscation is off the table, maybe we can start finding some areas of agreement that will help make us all safer.

Note to readers: This entry, along with past entries, has been co-posted on bradycampaign.org/blog and the Huffington Post.

Comments

[Thirdpower]

Police officer deaths lowest in 43 years. I blame the sunsetting of the federal AWB.

http://www.usatoday.com/news/nation/2008-07-09-police-deaths_N.htm

[Sneaky]

They'd be lower if not for Florida. Gang violence is getting worse and worse, and it's spreading out further from Miami-Dade than it used to.

[Thirdpower]

Lower court follows pre-Heller law

Gene Volokh has a post on it.

http://volokh.com/posts/1215558009.shtml

The federal trial court notes that " Ostalaza neglects to substantiate that argument with citations to any authority. Instead, Ostalaza points to District of Columbia v. Heller, a case that was pending before the Supreme Court at the time his motion was filed. " Can't see where that makes a difference.

It then cites to collective-right rulings from its Circuit. As Gene points out, the trial court seems to assume that it is bound by its Circuit rulings even though the Supreme Court has gone to the contrary -- the Circuit is its immediate boss, and until the Circuit changes its mind, the Supreme Court's ruling doesn't matter much.

From ArmsandtheLaw

[Thirdpower]

CCW permit holders are just criminals in waiting according to the BC's "reasonable, common-sense measures":

The Brady Campaign spokesman says "We've gotta be reasonable here .... getting a concealed weapons permit just means you haven't committed a crime, yet."

But they don't want to restrict firearms from average people. No. Never.

[vespasian1]

Now we know that what we suspected about the ACLU all along is true. They are just an extreme lefty sham of an organization that doesn't give a damn about defending the Constitution; just the parts they like.

Hey, since SCOTUS just affirmed our guaranteed right to keep and bear arms, how can they say it just applies to 'in the home'? You 'keep' arms in your home. You 'bear' arms on your person. If 2A does indeed apply to individuals, then we should all have a right to carry, no?

[djkrlsn]

Sure looks like it to me, but it seems that liberal/progressive are even more selective about what parts of the Bill of Rights than the dread conservative--at least conservatives acknowledge the fourth amendment exists while "progressives" do everything possible to deny the either the existence or the plain meaning of the second amendment. Also Kell--it sure looks like the Heller decision and the loss of Jade took the wind out of your sails since you seem more interested in Brangelina than in cheerleading for Paul (I thought ironjawedangels were supposed to be willing to wade through all the hosts of h*ll to advocate for their beliefs).

[Sneaky]

Because the case was specifically about those laws effectively disabling firearms in the home and about the ban on handguns, not about the carrying of firearms. I'm actually quite proud of the Supreme Court for NOT reaching further than the case at hand. I'm damn tired of judicial activism.

It's a topic that CAN come up in another case, but not likely very soon. The Heller case gave the District of Columbia quite a public bloody nose, and the city's doing its best not to deal with the changes within the 21 days the Court allows for new laws to be drafted. Patience, my friend. Patience.

[Tao21Zen]

Paul, you keep saying you want to "find some common ground" but it seems to us that your idea of "common ground" is the pro-gun side continuing to concede more of its ground to you with receiving nothing in return. Paul, compromise is a two way street. What pro-gun compromise has the Brady Campaign (or any other anti-gun group) EVER made? The last gun related concession made was the NRA endorsing the changes you guys wanted to the Brady Background check. Well, where is the reciprocity Paul? What ground are you at the Brady Campaign willing to offer up to us?

[benEzra]

I'd like to see them stop fighting to ban the most popular rifles, and stop trying to turn the clock back to the 1800's regarding firearm aesthetics and magazine capacities. Those things are largely irrelevant to U.S. criminal violence anyway, and are aimed primarily at the law-abiding.

There's certainly common ground to be found, but new bans on popular guns and/or their magazines and ammunition isn't it.

[fishyjay]

I can easily name two:

One pro-gun compromise made by the Brady Campaign was agreeing to exempt hunting guns from the assault weapon ban. Another was agreeing to instant checks in the Brady law.

Of course, the Brady Campaign has been trying to renege on those compromises ever since. I suppose now you are going to quibble about THAT?

[Tao21Zen]

"One pro-gun compromise made by the Brady Campaign was agreeing to exempt hunting guns from the assault weapon ban."

---

So, the Brady "compromised" by limiting the number of firearms they would otherwise choose to have banned? This is why we can never find common ground with the anti-gunners.

The anti-gunner idea of "compromise" is "settling" for only getting half of the new anti-gun laws they want passed and then, after they get those measures past, continue to fight for those they didn't get passed. The sad irony is that the anti-gunners actually site these "sacrifices" saying that the pro-gun should respond by "compromising" and letting the anti-gunners have the other half of the anti-gun laws they wanted.

So much for "common ground."

[molonlabe]

"The ACLU interprets the Second Amendment as a collective right. Therefore, we disagree with the Supreme Court’s decision in D.C. v. Heller. While the decision is a significant and historic reinterpretation of the right to keep and bear arms, the decision leaves many important questions unanswered that will have to be resolved in future litigation, including what regulations are permissible, and which weapons are embraced by the Second Amendment right that the Court has now recognized­."

http://blog.aclu.org/2008/07/01/heller-decision-and-the-second-amendment/

"The ACLU has received funding from the Open Society Institute, the Arca Foundation, the Annie E. Casey Foundation, the Columbia Foundation, the Nathan Cummings Foundation, the Geraldine R. Dodge Foundation, William and Flora Hewlett Foundation, the John D. and Catherine T. Macarthur Foundation, the Mertz Gilmore Foundation, the Minneapolis Foundation, the Jessie Smith Noyes Foundation, the Open Society Institute, the David and Lucile Packard Foundation, the Scherman Foundation, the Carnegie Corporation of New York, the Columbia Foundation, the Ford Foundation, the JEHT Foundation,THE JOYCE FOUNDATION, the Lear Family Foundation, the Public Welfare Foundation, the Rockefeller Foundation, and the Woods Fund of Chicago."

http://www.discoverthenetworks.org/groupProfile.asp?grpid=6145



Not really a surprise when you follow the Wheelbarrow Full Of Cash(tm)."

[Tao21Zen]

Wow, I thought if group would agree that the 2nd Amendement is an individual right, it would be the ACLU. I wonder how they respond to the fact the the founders used the same textual language and vernacular in the 2nd Amendment that they used in the other Amendments.

Are these the ACLU's positions on rest of our Constitutionally protected rights?

1. The right to speech only applies if you belong to a State operated/sanctioned group?
2. You can only practice your religion is a State run church?
3. All newspapers and media outlets have to turn over their control to their State government
4. Unless you are yourself a member of the state, any soldier can come into your home and set up dwelling?
5. You only are free from unreasonable searched and seizures if your home is owned and operated by the State?
6. "Right to remain silent" and receive "due process of law" are only for those that are members of the government or a government approved group?
7. You can be punished in any cruel and unusual manner, unless your are a member of the government or a government approved group?
8. ladies, join a state group if you want to have an abortion and the right to vote?
9. All blacks not belonging to an approved state group are still slaves?
10. One can only consume alcohol in a state owned and operated bar?

Seems like a great place to live in, right?

[molonlabe]

"Seems like a great place to live in, right?"

Only if you walk on 4 legs and are insulated by a nice thick coat of wool I guess.

I thought that the ACLU would have a credibility problem from the inevitable flip-flop from their position on MIller when Heller was handed down. It never occurred to me that the ACLU would just blatently ignore 9 SCOTUS justices who solidified the already obvious individual RKBA. Looks like the ACLU has been taking those Judicial Activism(tm) classes at Helmke University.

Or maybe I'm just that naive to think that the 2A is in fact part of the rest of the BOR. Go figure.

[djkrlsn]

Also Paul--since the Brady Campaign is alll about "reasonable gun control" and "finding middle ground"--why did the Brady Campaign lawyer (Hennigan) clearly state that the Brady Campaign opposes shall issue concealed carry permits (and on a practical basis, the Brady Campaign seems to oppose all ldefensive use of firearms and to be extremely grudging in its support for hunting and other sporting use of firearms).­. From where I sit, the "new and improved" Brady Campaign is the same old Brady Campaign that opposes the second amendmet with some new prevarications

[djkrlsn]

Sorry--I should have stated that Larry Elder was the interviewer.

[Sneaky]

Whew. We've been busy the last few days eh dj? I wonder how much talk it'll take before the Brady Campaign actually does something; if it feels that licensing and registration are "tougher to criticize", one would think they'd at least go on the offensive to counter their nemesis the NRA (who, it should be noted, hardly takes note of them).

[djkrlsn]

I don't know about you, but I have certainly inconvenienced a few electrons the last few days--but what is irriitating is that I am probably one of the most conservative regulars on Huffington Post--and it seems that I have to spend way toomuch time reminding the "progressives" here that the ENTIRE Bill of RIghts deserves to be fought for and protected. I don't know about you, but I find it hypocritical for many posters here to be screaming that "the BUSHIES HAVE VIOLATED MY RIGHTS" with fisa while they are trying to read the Second Amendment out of the Constitution.

[kaveman1]

Quick question Paul...

If the Brady Campaign no longer supports gun bans, why did I receive an email from the Brady Campaign stating the following:

"Within minutes of the decision, NRA Executive Vice President Wayne LaPierre announced a challenge to gun laws in San Francisco and Chicago.

The Brady Center needs your help now. We cannot let the gun lobby get even one step ahead of our efforts to defend gun laws."

The NRA is challenging the gun BANS in Chicago and San Fransico. Do you even understand how little credibility you have when you say you are against gun bans and then beg for cash to defend gun bans?

As far as registration and licencing goes, SCOTUS has already ruled that you can't charge people money to exercise a Constitutional right when they struck down the Poll Tax.

Any licencing and registration scheme is going to cost money and will be challenged and struck down.

Also, any prohibited person will be exempt from registering their firearms based on their 5th Amendment rights against self-incrimination. So even if it does pass muster, the registery will only contain law abiding people and the bad guys are off scot-free.

Wake up Paul.

[kaveman1]

So Paul, if gun bans are off the table, why are you pushing to ban guns?

Just wondering.

[djkrlsn]

And if the Brady Campaign opposes gun bans--how about some proof that the Brady Campaign actually opposes gun bans (lip service is NOT PROOF--especially since the briefs related to the Heller case support the DC ban on functional firearms in the home). If the Brady Campaign opposed gun bans--any briefs filed would support the Cato Institute.

[muffinman2]

"Paul ~ my hat's off to you. Some of these posters are the extremist 'all guns, all the time, everywhere' types; but you still work to find a middle ground (even with them). "~shedances

Paul still supports the DC ban, the Chicago ban, NJ Smart Gun Law (ban), and bans in San Francisco and Chicago suburbs. s this the "middle ground" to which you refer?

The Brady Campaign is out to end guns, not "gunviolence"(tm). When they say they are looking for middle ground, they are lying in order to survive.

[djkrlsn]

I think that is why Kelli has been amazingly quiet since I made my ideas/suggestions about ways to help determine if the propose laws relating to guns are reasonable. If the laws have to be aimed directly at criminals, not discriminate against the poor or disabled (but allowing for restrictions based on mental illness and disabling mental limitations), the laws actually would have to reduce violent crime, and lastly meet the Miller test of being in common use--just about everything Kelli has indicated that she supports would be unreasonable by that standard.

[twogunmojo]

i would argue that miller would be reversed or struck down if the right case came along....i don't understand how a short barreled shotgun is illegal and my bond arms derringer which can be loaded with 3 inch .410 shotshells thus making it a one-handed double-barreled shotgun which will fit into my pocket isn't illegal...­.and shotshells can be purchased for virtually all handguns made....we call them snake loads....a­nd they are in common use....hav­e been for decades

[twogunmojo]

i tried to post this last night....i­f the test is that a firearm needs to be in "common and regular use" to pass a propsed ban the anti gunners are going to lose every time....cl­yde barrows' weapon of choice was a "bar".....­browning automatic rifle chambered in .30-06 with a cut down stock....r­evolvers have been in use for at least 150 years give or take....se­mi-automat­ics have been in use for 100 years give or take.....r­ifles and shotguns have been in use for 400 years give or take....th­anks everyone for your comments..­.both pro and con

[vespasian1]

"How does the "gun-show loophole" really make any difference? Do criminals go to gun shows to buy guns? Don't they either steal or buy from another criminal? Does this place another undue burden on the law-abiding?"

No, the 'gun show loophole' is not significant. According to the FBI, less than 2% of guns ultimately used for criminal purposes originated from gun shows. The vast majority of the guns that criminals use are stolen, or come from other criminals.

And yes, this does place another undue burdon on the law-abiding. That is what the Brady Campaign is all about, and it's going to get worse after Heller. Now that the 'individual right' issue has been settled, the BC has to direct all of it's resources to supporting other gun-bans, and nit-picking us to no end over every sniggling little thing they can.

The more difficult, or impossible, the BC can make gun ownership for people, the happier they are.

[twogunmojo]

and lets make one more comment on the "slippery slope" argument..­..paul, josh, and kelli are all in a rush to ban .50 caliber guns....la­st time i checked my 12 gauge shotgun is actually a .76 caliber weapon....­one quarter larger than my .50 caliber black powder rifle and ungodly powerful at less than 200 yards....i would entertain reasonable arguments that pertain to gun control but only if the dialog included a national right to carry my gun anywhere in the continental united states...a­nd only if the licensing fee and testing were such that the average person....­.a barista perhaps...­.lol....co­uld past the test and pay the fee....

[djkrlsn]

Twogun--your reference to the average person being able to get a license is precisely why I put made being nondiscriminatory part of being reasonable--since there are certain posters on this thread that have claimed that DC and Chicago gun laws are reasonable.

[thedewd]

"The only question remaining is whether Congress has the courage to join us" - Bloomberg

Oh, I actually have several questions that have nothing to do with "courage".

So, being suspected of being a terrorist is enough to deny my right to self-defense? Since there's no potential for abuse, that sounds great. Geez, no questions about that one. Well, maybe one: What's to prevent someone from labeling me a "suspect" and denying my 2A rights?

How does the "gun-show loophole" really make any difference? Do criminals go to gun shows to buy guns? Don't they either steal or buy from another criminal? Does this place another undue burden on the law-abiding?

Where the heck did you come up with the "fire sale" notion? I would guess that whomever is buying the "fire sale" guns has to be an FFL, so no background check is necessary, they are already a Federal Firearms License holder and subject to more scrutiny than an average citizen,

Isn't is already a felony for any prohibited individual from being in a store that sells guns? This seems like a solution in search of a problem, is it?

As I see it, having the courage to stand up to an overzealous, elitist and ineffective mindset is really the only answer to the questions.

[benEzra]

You don't even have to be a terrorism suspect. You just have to be an environmental activist, an anti-war protester, a completely innocent person with a foreign sounding name, or someone who got stuck on the list because a bureaucrat needed to meet their end-of-month watchlist quota.

No-Fly Blacklist Snares Political Activists:
http://www.sfgate.com/cgi-bin/article.cgi?file=/c/a/2002/09/27/MN181034.DTL

Innocent People Placed On 'Watch List' To Meet Quota:
http://www.thedenverchannel.com/news/9559707/detail.html

People placed on the list as infants (and how do you get taken off it when you grow up?):
http://www.schneier.com/blog/archives/2005/08/infants_on_the.html

Alberto "No Habeus Corpus" Gonzales wants the power to deny gun ownership to ANYONE HE SECRETLY BLACKLISTS, which can be done at the mere the whim of himself or others, with zero due process and little to no chance of successful appeal. That is who the Brady Campaign are supporting when they support Mr. Gonzales' "no-guns-f­or-the-bla­cklisted" policy.

No, thanks. If someone is an actual terrorist suspect, put them under active surveillance and arrest them when they do something illegal; if not, leave them alone. But due process is the absolute foundation of our legal system, and destroying it over fear of Terrah! or hatred of gun owners would be a severe loss indeed.

[thedewd]

I find it amusing that the BC wants registration and licensing. Picture this:

Criminal #1 - I have a stolen .45 that I want to sell

Criminal #2 - I want to get a .45

Criminal #1 - OK, so let's go down to the local gun store and get background checks on both of us so we know the sale will be legit!

Criminal #2 - Awesome! That way I'll be in full compliance with the law when I go rob the next guy!

That's so realistic! I can imagine them carefully filling out the forms and making sure they're not "fugitives from justice".

Once again, the BC thinks that criminals will follow the law. The fact is that the Heller case put the burden on the government to provide a compelling reason to limit the rights of law abiding citizens. I find the "assault weapons" tact tired and totally against everything the BC says. Do you want to ban guns or not?

[StinkyPete]

Part 1 of 2
It seems as registrati­on/licensi­ng schemes probably can't be dismantled on constitutional grounds. There are other grounds to prohibit these attempts.
As pointed out already, due to constitutional principles, prohibited persons are exempt from any licensing/­registrati­on requirements. This dissociates such plans from crime or criminal use of firearms.
More importantly is the misconduct of politicians, police departments, national guard units and contractors such as Blackwater.
Mayor Nagin of New Orleans presents a very strong example of 'official misconduct' when it comes to violating the basic rights of law-abiding citizens. The evidence is all over the net, including videos.
Mayor Nutter of Philadelphia is another example of a politician knowingly and deliberately passing and promising to act on explicitly illegal laws.
The conduct of the police after a tornado is simply despicable, forcing immediate legislative action.
http://tinyurl.com/644bnz
The police in Louisiana apparently have the right to steal firearms while armed themselves - with no consequence!
http://tinyurl.com/5rmguu
Blackwater is a problem that is going to have to be dealt with - their conduct in NO after the hurricane is well known, more recently
http://tinyurl.com/6ndqhd
Other legislation prompted by misconduct by politicians and police is reviewed in the following brief submitted by 55 Senators and 250 Members of Congress
http://tinyurl.com/yq7cuv

[StinkyPete]

Holy Crap - I'll try a 4th time - Shheeessh!

Part 2 of 2
There is also the astonishing position taken by the anti-gun crowd wrt the Tiahrt Amendment. These guys have contempt for the lives and well being of Law Enforcement trying to do their jobs as pertains to firearms crime. They prioritize their own objectives which boil down to nothing more than harassment of law abiding citizens (as usual).
Here's Paul, recently on HuffPo
http://tinyurl.com/6zk4sm
Here's the Director of BATFE
http://tinyurl.com/669xmn
Here's a more detailed article with impressive links to LE, Congress on the topic
http://tinyurl.com/6rnjh6

In addition is the pattern in the past century of gun control and it's uses reviewed in another brief
http://tinyurl.com/6qr2od

Clearly with the above and the continuing pattern of misconduct by politicians and police the only thing that a licensing/­registrati­on scam can provide is a tool to engage in illegal theft/confiscation of firearms and harassment­/mistreatm­ent of law-abiding citizens.

[CCW4ME2]

We might all ask ourselves, when it comes to evaluating any scheme to license automobile drivers or people who want to carry a gun in public, "Would a reasonable person conclude that the licensing scheme, in its totality, is intended to restrict the number of persons who are allowed to engage in the said activity or merely to insure that they do so in an orderly manner?" Many gun licensing schemes are clearly aimed at "keeping guns off the street" and not simply used to keep track of who is carrying. Any government that does not trust the people with arms is a government which does not deserve the trust of the people.