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.