June 26, 2008
Dealing with dangerousness: can, will, should DC regulate guns like states regulate sex offenders?
As the Heller majority opinion recognizes, handguns can be used for lots of good purposes, but also may be dangerous and can cause great harm in a community. The same might be said for released sex offenders: they can do lots of good things, but also may be dangerous and can cause great harm in a community. Though the parallels are imperfect, it does suggest that DC and other jurisdictions interested in gun control might try now to regulate guns the way many jurisdictions now regulate sex offenders.
Specifically, sex offenders are typically required to register where they live, to notify authorities when they move, and to update their registration every few months. In addition, many states prohibit sex offenders from living in the vicinity of schools and other areas where kids congregate. And the failure to comply with these regulations can lead to criminal liability under state and federal laws.
So, can, will and should DC take the same approach to handguns and their owners? Can and should DC pass new legislation requiring those seeking handgun licenses to register where they live (and where in their homes guns are kept), to notify authorities when they move, and to update registrations every few months? Can and should DC prohibit gun owners from living near schools or other areas where kids congregate? Should there be public websites where concerned parents can find if any registered gun owners are living nearby?
Though perhaps enforcing strict registration rules with severe criminal liability might go too far after Heller, the majority opinion hints that enforcing these regulations through fines and gun forfeitures could withstand constitutional scrutiny. Indeed, DC might be able turn this into a money maker by demanding that gun owners (like car owners) pay a sizable fee for maintaining the gun registry and can charge very large fines for the failure of a gun owner to maintain his registration.
In short, to the extent that a lot of government regulation of sex offenders (not to mention alcohol and tobacco) are permitted in the name of public safety, will it really be that hard for DC and other jurisdictions to develop more refined (and potentially more intrusive) gun control regulations (and taxes) after Heller?
June 26, 2008 at 02:49 PM | Permalink
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Tracked on Jun 26, 2008 3:39:22 PM
Some, but not all, of the "licensing" regulations you posit by analogy to sex offender rules might pass muster. However, I think geographic limitations on where you can live and lawfully possess a firearm would pretty clearly be deemed an undue burden, if analogous to the regulations you reference: "many states prohibit sex offenders from living in the vicinity of schools and other areas where kids congregate." I know of no other enumerated Constitutional right that can expressly be conditioned on not having one's private residence within a specified distance from a school, park, or other public facility. Or to put it differently, it would be inconceivable for a court to deny a post-Heller right to keep and bear arms within one's home solely because one's home happens to be within 1000 feet -- or five miles -- of a school or park.
And unlike registered sex offenders, I doubt a court would ever approve posting the names of all licensed firearms owners on a government web page (I know of one incident in Roanoke, VA where the local paper printed CCW permit holders' names and addresses, and the uproar was pretty spectacular). The prospect of such publicity being a chilling effect on one's Second Amendment right by itself would probably cause that to be a non-starter.
(why did I mention 5 miles above? Because when he was in the Illinois legislature Obama publicly favored prohibiting firearms dealers from having a place of business within 5 miles of any school or park. Some map checking on other blogs has suggested this brilliant idea would virtually eliminate gun shops from most metropolitan areas, and even throughout most of the Northeast Corridor from at least southern New Hampshire down to Richmond, Virginia).
Posted by: zippypinhead | Jun 26, 2008 5:36:00 PM
Aren't fees and taxes in future gun regulations limited by rulings such as these:
"A state may not impose a charge for the enjoyment of a right granted by the federal constitution."
Murdock v. Pennsylvania, 319 US 105
"If the State converts a right into a privilege, the citizen can ignore the license and fee and engage in the right with impunity."
Shuttlesworth v. City of Birmingham Alabama, 373 US 262
Posted by: Joe R. | Jun 30, 2008 1:14:27 PM