Accidental National Gun Registry?

The creation of a national gun registry, or centralized database for every gun in America, is prohibited by statute. Nevertheless, a backdoor appears to be left open – and fear mounts that records traditionally used to assure guns do not fall into the wrong hands by legal sale, will be used for other purposes.

Specifically, the Firearm Owners’ Protection Act, a 1986 law amending a 1968 law, makes clear that gun owners have rights secured to them through the Second Amendment, and further secured by both judicial interpretation and legislative protections.

The 1986 act grew out of concern that average gun owners were being harassed by overzealous federal officials, in effect eclipsing the Second Amendment by implicit coercion, intimidation, and attempts to reduce overall gun ownership, or minimize use of firearms for legal purposes. 

The concern was not one-sided, but bipartisan, and came at a time when perhaps two-thirds of all Americans owned firearms. While ownership has trended down in recent decades, especially in urban centers, it has trended up markedly – including in urban centers – in the past several years.

A committee of Congress found, in 1982 – in the run-up the 1986 law banning a registry and supporting citizen owners – that citizen rights are critical.

“The conclusion is … inescapable that the history, concept, and wording of the Second Amendment to the Constitution … as well as its interpretation by every major … court in the first half-century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner,” without government registration or intimidation. See, Firearm Owners Protection Act.

While the law has often been controversial, some flow-downs are clear. States have a right to register firearms, pursuant to the 10^th Amendment and States’ rights, which also reflect differing state interpretations of how best to balance ownership and public safety.

Similarly, states can legislate certain time, place, and manner restrictions, although the Supreme Court has indicated in the past 20 years that these will be closely scrutinized to assure they do not violate the Second Amendment.

Finally, the law is clear on one point – which again goes to avoiding federal coercion – and that is that no federal registry of firearms can be created, which would in effect permit federal – a large, centralized government – intimidating average, legal, law-abiding citizen gun owners.

This is where things are getting dicey, and facts suggest an “open backdoor” that could imperil legal gun owners’ rights – especially the right not to be harassed by reference to the federal database. 

In effect, the federal government has come into possession of more than 920 million records of gun owners – across the country – because so many licensed firearms dealers have gone under during COVID.

While some might see a conspiracy, this is likely a mere outgrowth of the virus, public fears, federal mandates tied to inoculations, masks, and OSHA, plus a down economy, tight labor market, and small margins. 

But the effect is the same, the federal government is in possession of records that – once turned digital – allow a de facto database to exist, at least one that reflects sales by the legal or licensed firearms dealers who have gone out of business.

On the data, this seems a violation of the foregoing statute, although the government says they have no intent to use the emerging database as a formal registry, or to permit or pursue harassment of legal gun owners. And the government does have the right to collect records from defunct sellers.

Even this assurance may in principle be true, but history also teaches us that the best-laid plans of mice and men often go astray, and that governments with power use it, eventually. 

So, what is the protection that could be used to assure no registry-based harassment by the federal government in two, five, ten, twenty years? What might restore the protections that the 1986 act sought to provide, align the reality with the law, and in the process protect average citizens – and assure the Second Amendment is not unintentionally eviscerated?

The answer is two-fold. First, with gun rights increasingly under review – and that means, restrictions by the government under review – by the conservative Supreme Court, a challenge that seeks to preserve citizen rights may be launched, and a case announced that protects these rights.

At the same time, legislation might be lofted, likely in the next Congress, not this one, assuming Republicans can gain control of one of both chambers, to reaffirm that citizen gun rights under the Second Amendment are kept sacrosanct, not subjected to the kind of “Big Brother” oversight that would, in time, lead to their erosion, eclipse, eventually curtailment.

All this may seem a distant worry, or something that should not garner so much ink, but rights – of all kinds – are lost by inches, by indifference, by assuming the best, by forgetting the adage offered by Lord Acton, centuries ago:  Power corrupts, and absolute power corrupts absolutely.

The best way to protect citizen rights – of all kinds – is to watch closely that infringements of all kinds are prevented, even the incremental and seeming innocuous – especially those infringements.