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Thread: The question of the constitutionality of firearm registration

  1. #1
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    The question of the constitutionality of firearm registration

    I’ve been trying for a while now to wrap my head around the issue of the constitutionality of firearm registration and I have come to the conclusion that SCOTUS has not resolved it. Now I realize that 2nd. Amendment jurisprudence is still in its infancy, and there are still a lot of issues left unresolved by Heller and McDonald. But this registration issue was raised in both Heller and McDonald and I suggest we still have no clear answer.

    Heller: The D.C. gun laws in Heller made it a crime to possess an unregistered/unlicensed handgun, and it then banned registration and licensing of handguns. The SCOTUS majority dealt only with the issue of the actual ban. It sidestepped the issue of registration and licensing because Heller surrendered his argument that registration was unconstitutional:

    Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home.District Of Columbia v. Heller, 554 U.S. ___ 07290, III (2008)

    Thus, the issue of the constitutionality of registration schemes was left for another day.

    McDonald: In McDonald, the law in question was a registration and ban system similar to what D.C. had used—registration was required, and then a separate provision banned new registration and effectively banned possession of handguns. The primary issue was whether the 2nd. Amendment applied to the States, and that was clearly resolved in favor of incorporation. McDonald reached this result by arguing that the effective ban was unconstitutional. However, and likely because the issue was avoided in Heller, he made a separate argument that registration by itself is unconstitutional. The majority opinion written by Alito completely ignored the registration argument and made no comment on it whatsoever. Additionally, although Scalia and Thomas wrote concurring opinions they both ignored the registration issue. This effectively leaves the issue open once again, and for the moment there is no clear direction from the SCOTUS majority telling us whether registration would be constitutional or not.

    However, the minority justices have been busy attempting to build their own arguments for constitutionality of registration. Consider, for example, now-retired justices Stevens’ comment on McDonald’s claim that registration by itself is unconstitutional:

    To the extent that petitioners contend the city of Chicago's registration requirements for firearm possessors also, and separately, violate the Constitution, that claim borders on the frivolous. Petitioners make no effort to demonstrate that the requirements are unreasonable or that they impose a severe burden on the underlying right they have asserted.
    McDonald v. Chicago, 561 U.S. ___ 081521, 57 (2010)

    Why is this unresolved issue important?

    Look at the following current registration statute under the ATF portion of the U.S. Code that establishes the National Firearms Registry and Transfer Record. Note how comprehensive the registration system is….

    26 U.S.C. § 5841 - Registration of firearms

    (a) Central registry

    The Secretary shall maintain a central registry of all firearms in the United States which are not in the possession or under the control of the United States. This registry shall be known as the National Firearms Registration and Transfer Record. The registry shall include -

    (1) identification of the firearm;

    (2) date of registration; and

    (3) identification and address of person entitled to possession of the firearm.

    (b) By whom registered

    Each manufacturer, importer, and maker shall register each firearm he manufactures, imports, or makes. Each firearm transferred shall be registered to the transferee by the transferor.

    (c) How registered

    Each manufacturer shall notify the Secretary of the manufacture of a firearm in such manner as may by regulations be prescribed and such notification shall effect the registration of the firearm required by this section. Each importer, maker, and transferor of a firearm shall, prior to importing, making, or transferring a firearm, obtain authorization in such manner as required by this chapter or regulations issued thereunder to import, make, or transfer the firearm, and such authorization shall effect the registration of the firearm required by this section.

    (d) Firearms registered on effective date of this Act

    A person shown as possessing a firearm by the records maintained by the Secretary pursuant to the National Firearms Act in force on the day immediately prior to the effective date of the National Firearms Act of 1968 shall be considered to have registered under this section the firearms in his possession which are disclosed by that record as being in his possession.

    (e) Proof of registration

    A person possessing a firearm registered as required by this section shall retain proof of registration which shall be made available to the Secretary upon request.


    That’s a very comprehensive (read invasive) registration scheme. The penalties for failure to comply with this registration scheme are severe:

    26 U.S.C. § 5871 - Penalties

    Any person who violates or fails to comply with any provisions of this chapter shall, upon conviction, be fined not more than $10,000, or be imprisoned not more than ten years, or both.

    Now understand that, for the moment, only the following firearms are covered under the above ATF National Registry scheme:

    U.S. Code 26 U.S.C. § 5845 Definitions

    For the purpose of this chapter -

    (a) Firearm

    The term "firearm" means

    (1) a shotgun having a barrel or barrels of less than 18 inches in length;

    (2) a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length;

    (3) a rifle having a barrel or barrels of less than 16 inches in length;

    (4) a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length;

    (5) any other weapon, as defined in subsection (e);

    (6) a machinegun;

    (7) any silencer (as defined in section 921 of title 18, United States Code); and

    (8) a destructive device. The term "firearm" shall not include an antique firearm or any device (other than a machinegun or destructive device) which, although designed as a weapon, the Secretary finds by reason of the date of its manufacture, value, design, and other characteristics is primarily a collector's item and is not likely to be used as a weapon.

    (e) Any other weapon

    The term "any other weapon" means any weapon or device capable of being concealed on the person from which a shot can be discharged through the energy of an explosive, a pistol or revolver having a barrel with a smooth bore designed or redesigned to fire a fixed shotgun shell, weapons with combination shotgun and rifle barrels 12 inches or more, less than 18 inches in length, from which only a single discharge can be made from either barrel without manual reloading, and shall include any such weapon which may be readily restored to fire. Such term shall not include a pistol or a revolver having a rifled bore, or rifled bores, or weapons designed, made, or intended to be fired from the shoulder and not capable of firing fixed ammunition.


    And note that “Silencer” or “Muffler” is defined here:

    U.S. Code 26 U.S.C. § 5845 Definitions

    (24) The terms "firearm silencer" and "firearm muffler" mean any device for silencing, muffling, or diminishing the report of a portable firearm, including any combination of parts, designed or redesigned, and intended for use in assembling or fabricating a firearm silencer or firearm muffler, and any part intended only for use in such assembly or fabrication.

    So at present the definition of “firearm” for the registration scheme is limited to those unique firearms (sawed-off shotguns, machineguns, etc.) that were effectively taxed to death starting in the 1930s.

    The danger, however, is that this is not the only definition of the word “firearm” in the U.S. Code. In the general crimes title (Title 18), the following definition of “firearm” exists:

    U.S. Code 18 U.S.C. § 921 Definitions

    (3) The term "firearm" means

    (A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive;

    (B) the frame or receiver of any such weapon;

    (C) any firearm muffler or firearm silencer; or

    (D) any destructive device. Such term does not include an antique firearm


    Clearly this definition covers every “firearm,” including black powder firearms. This broader definition is used to cover general crimes committed with firearms (like possession by felons, armed career criminal violations, etc.)

    Here is my question: If a bill came before Congress tomorrow that took this broader definition of “firearm” in Title 18 and applied it to the National Registry in Title 26 to require complete intrusive registration of every firearm not controlled by the federal government, then is there any SCOTUS authority to say the change would be unconstitutional? I say not at present—for the only comments from justices one way or the other are in favor of constitutionality (thankfully, from minority opinions).

    Isn’t this a real problem for people who do not favor registration?

    Anyone else have thoughts on this?

  2. #2
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    I was under the impression that the Supreme Court issued a strict scrutiny ruling when it came to evaluating laws that potentially infringe on the Second Amendment, meaning the law has to be narrowly tailored to achieve a specific goal and be the least invasive method possible to achieve such a goal.

    I fail to see how a proposed law, attaching the broader definition of "firearm" to the NFA34 bill, would ever pass the strict scrutiny standard. I fail to see how it would even pass 4th Amendment challenges, because such a measure would easily violate the people's right to privacy and for a trivial reason.

    And then there's the issue regarding the Gun Owner's Protection Act of 1986, which specifically forbade the creation of any centralized federal registry of gun owners. So any such proposal would be violating the law that's already in place unless the previous law was repealed first.

    Also is the fact that the Supreme Court has made it clear that the Second Amendment is regarded the same as all the other amendments in the Bill of Rights, meaning the same protections (at least in theory) apply to it that apply to all the others. And since government can't compel people to acquire a license to exercise their specific religion, or pass a background check before consulting with a lawyer, or submitting fingerprints for running an online blog, or mandate the registration of every single muslim in the country, I foresee one hell of a wrangling being necessary in order to justify such a bill to the point that congress would actually pass it in the proposed manner.
    [QUOTE=Brady;363469]When I was a kid I did lots of things like playing with fire and torturing animals even though adults told me not to.[/QUOTE]
    The admission of a sociopathic serial killer.

    [QUOTE=Penfold;363126]No Personal attacks, insults, name calling, offensive generalizations, or labeling.[/QUOTE]
    He should practice what he preaches.

    The three duties of government: 1. Protect property 2. preserve contracts 3. provide for the rule of law.

  3. #3
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    We the People ignored the prohibition laws and then it was repealed.

    Also, I have a Belly button!
    "Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel." -- Patrick Henry

  4. #4
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    Quote Originally Posted by Tither View Post
    We the People ignored the prohibition laws and then it was repealed.
    Yeah but nobody ever sent in a squad of highly trained individuals to turn us into swiss cheese for ignoring the 18th Amendment. Look at Waco and Ruby Ridge. Ignoring the problem won't make it go away this time.
    [QUOTE=Brady;363469]When I was a kid I did lots of things like playing with fire and torturing animals even though adults told me not to.[/QUOTE]
    The admission of a sociopathic serial killer.

    [QUOTE=Penfold;363126]No Personal attacks, insults, name calling, offensive generalizations, or labeling.[/QUOTE]
    He should practice what he preaches.

    The three duties of government: 1. Protect property 2. preserve contracts 3. provide for the rule of law.

  5. #5
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    Speaking on Canada’s gun registry.
    The gun registry doesn't make us safer
    The key factor to consider when determining the fate of the federal long-gun registry is whether or not it prevents crime. That was its initial objective. That is how Jean Chretien's Liberal government justified the nearly $2-billion that has been spent on the project and a bureaucracy that continues to consume between $87-million (RCMP estimate) and $106-million (Canadian Taxpayers Federation estimate) annually.

    If the registry prevents murders and cuts down on other gun crimes such as robberies and armed drug deals, then there might be a case for keeping it -- might. Otherwise, there is no justification for the way it makes criminals of law-abiding gun owners.

    In fact, on the crime-prevention front, the registry has been an abject failure.
    Game, Set, and Match!
    "Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel." -- Patrick Henry

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    Does the scope of the RKBA include freedom from registration?

    Well I think that McDonald has answered part of the question when it declared the RKBA to be a “fundamental” right. This means the test now should be “strict scrutiny.” Here are a few examples of cases describing this test:

    Certain substantive rights we have recognized as “fundamental”; legislation trenching upon these is subjected to “strict scrutiny,” and generally will be invalidated unless the State demonstrates a compelling interest and narrow tailoring.” Regents of University of Michigan v. Ewing, 474 U.S. 214, 226 (1985)

    Thus [for example], the Fourth Amendment speaks only of “unreasonable searches and seizures” and of “probable cause.” These rights are “fundamental,” and we have held that in order to support legislative action the statute must be narrowly and precisely drawn and that a “compelling state interest” must be shown in support of the limitation. E. g., Kramer v. Union Free School District, 395 U.S. 621; Shapiro v. Thompson, 394 U.S. 618; [Page 212] Carrington v. Rash, 380 U.S. 89; Sherbert v. Verner, 374 U.S. 398; NAACP v. Alabama, 357 U.S. 449 .” Doe v. Bolton, 410 U.S. 179, 211-212 (1973)

    “(Where fundamental liberty interests are infringed) the statutory classification would have to be not merely rationally related to a valid public purpose but necessary to the achievement of a compelling state interest. E. g., Shapiro v. Thompson, 394 U.S. 618 (1969); Loving v. Virginia, 388 U.S. 1 (1967).” Eisenstadt v. Baird, 405 U.S. 438, 455 (1972)

    But rights are not absolute in scope. Take, for example, freedom of religion. That right is written in absolute terms, but no one believes freedom of religion would protect a man from a murder charge if he engaged in human sacrifice. This is because the scope of all rights is limited, and no one will accept that human sacrifice would be a form of protected activity under the religious freedom clause. Therefore, strict scrutiny would not apply to a charge of murder for engaging in human sacrifice, and SCOTUS would declare that no protected constitutional right was “infringed” by a prosecution for murder.

    And so this is the question: Is freedom from registration protected by the RKBA?

    Right now the SCOTUS approved protected scope (or reach, if you will) of the RKBA is very limited. SCOTUS has not done much beyond saying the RKBA protects a right to have a handgun in the home for defense. Most importantly, SCOTUS did not limit the right here, and it very plainly said that it has not fully defined the scope of every activity the right protects or every activity the government is prohibited from doing. Obviously the scope will expand as new cases come before SCOTUS. But what troubles me is the issue of registration was put directly to SCOTUS in McDonald, the majority had a direct opportunity to declare registration by itself an unconstitutional infringement on the RKBA, and the majority dodged the issue entirely. We only find a now-retired dissenter addressing it, in passing, and in favor of the constitutionality of registration.

    Now this is a question of power and not wisdom. Set this aside for a moment the question of whether registration is wise or serves any useful purpose. I’m not asking whether Congress should try to create a mandatory registration of all firearms (I think it’s a bad idea), I’m asking instead whether Congress constitutionally can try to do it.

    Right now I think the jury is still out on whether Congress can try it. SCOTUS has not said registration would violate any freedom the RKBA protects, and no one has yet argued to SCOTUS successfully that the amorphous right to “privacy” would provide a freedom from registration.

    Absent this then I see the only thing prohibiting mandatory registration is the anti-registration language in the Gun Owner’s Protection Act. But this can be repealed easily enough. In fact, repealing this act does nothing to infringe on our RKBA, it only takes away the negative thou shalt not attempt the infringement language. No alleged infringement occurs until Congress goes further and tries to create the registry. Once that happens then we have to go to SCOTUS and hope it will agree that registration falls within the scope of liberty the 2nd. Amendment (or a general right to privacy) was designed to protect. How do you think people like Sotomayor would rule? Hopefully with no more than three others on her side is my answer.

    But we won’t know unless and until we get there….

    Happy Thanksgiving everyone, including all those who live outside my country and do not enjoy all the freedoms I have inherited.

  7. #7
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    I've got a better question, Bryan. Has there ever been a court case, either a lower court ruling in your territory, or a Supreme Court case, where the ruling specified that the government had the authority to compel a person to first register with them before they could exercise their constitutional rights?

    Nevermind firearms cases, let's focus on any case dealing with any other recognized fundamental rights protected by the Bill of Rights. Have there been any cases where it was stated that congress had the constitutionally bestowed authority to force people to first register and seek permission before they could be allowed to exercise their choice of religion, or share their personal opinion with others, or own and operate a blog, or enjoy a right to privacy, or have an attorney, or be allowed to enjoy a speedy and public trial?
    [QUOTE=Brady;363469]When I was a kid I did lots of things like playing with fire and torturing animals even though adults told me not to.[/QUOTE]
    The admission of a sociopathic serial killer.

    [QUOTE=Penfold;363126]No Personal attacks, insults, name calling, offensive generalizations, or labeling.[/QUOTE]
    He should practice what he preaches.

    The three duties of government: 1. Protect property 2. preserve contracts 3. provide for the rule of law.

  8. #8
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    Quote Originally Posted by NATO 556 View Post
    I've got a better question, Bryan. Has there ever been a court case, either a lower court ruling in your territory, or a Supreme Court case, where the ruling specified that the government had the authority to compel a person to first register with them before they could exercise their constitutional rights?

    Nevermind firearms cases, let's focus on any case dealing with any other recognized fundamental rights protected by the Bill of Rights. Have there been any cases where it was stated that congress had the constitutionally bestowed authority to force people to first register and seek permission before they could be allowed to exercise their choice of religion, or share their personal opinion with others, or own and operate a blog, or enjoy a right to privacy, or have an attorney, or be allowed to enjoy a speedy and public trial?
    OR their right to vote.

    Er.....uh.....

    Never mind.
    If ye love wealth greater than liberty, the tranquility of servitude greater than the animating contest for freedom, go home from us in peace. We seek not your counsel, nor your arms. Crouch down and lick the hand that feeds you; May your chains set lightly upon you, and may posterity forget that ye were our countrymen. —Samuel Adams

  9. #9
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    Quote Originally Posted by daewoo View Post
    OR their right to vote.

    Er.....uh.....

    Never mind.
    Do you have the Right to vote as many times as you like? Or did they do that so that elections are fair?
    Last edited by Tither; 11-27-2010 at 02:21 PM.
    "Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel." -- Patrick Henry

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    Seems like there are far too many folks that are confused as to whom the SOVEREIGN is. The correct answer is THE PEOPLE and not the government nor any branch of government nor is any branch of government the receipient of any rights and their duties and powers a few and well defined.

    The BOR was specifically retained BY THE PEOPLE. We will just keep voting the sluggards out until they understand their duties and our rights.

    There, that wasn't so difficult now was it?

  11. #11
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    Quote Originally Posted by NATO 556 View Post
    Yeah but nobody ever sent in a squad of highly trained individuals to turn us into swiss cheese for ignoring the 18th Amendment. Look at Waco and Ruby Ridge. Ignoring the problem won't make it go away this time.
    I know what you mean but look at the public outcry over those incidents.

  12. #12
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    a couple of apples to go with our oranges

    Quote Originally Posted by NATO 556 View Post
    I've got a better question, Bryan. Has there ever been a court case, either a lower court ruling in your territory, or a Supreme Court case, where the ruling specified that the government had the authority to compel a person to first register with them before they could exercise their constitutional rights?

    Nevermind firearms cases, let's focus on any case dealing with any other recognized fundamental rights protected by the Bill of Rights. Have there been any cases where it was stated that congress had the constitutionally bestowed authority to force people to first register and seek permission before they could be allowed to exercise their choice of religion, or share their personal opinion with others, or own and operate a blog, or enjoy a right to privacy, or have an attorney, or be allowed to enjoy a speedy and public trial?
    Well there are a couple of examples I can think of involving prior registration before exercising rights.

    The first would involve the first amendment rights of free speech and assembly. SCOTUS has allowed prior restraints on these rights involving “march permits” and the like:

    [T]he Court has recognized that government, in order to regulate competing uses of public forums, may impose a permit requirement on those wishing to hold a march, parade, or rally, see Cox v. New Hampshire, 312 U.S. 569, 574-576 (1941). Such a scheme, however, must meet certain constitutional requirements. It may not delegate overly broad licensing discretion to a government official. See Freedman v. Maryland, supra. Further, any permit scheme controlling the time, place, and manner of speech must not be based on the content of the message, must be narrowly tailored to serve a significant governmental interest, and must leave open ample alternatives for communication. See United States v. Grace, 461 U.S. 171, 177 (1983). Forsyth County v. Nationalist Movement, 505 U.S. 123, 130 (1992)

    These types of permits (and the fee payments that go with them) are typically justified as giving the local government notice of the event and paying the cost of the government’s police and administrative costs for the event.

    But note that the exercise of the rights mentioned here is in a “collective” sense.

    The second registration example involves the right to vote. Like free speech and assembly, the right to vote, and the principle of “one man, one vote,” is considered a “fundamental right.” But you must pre-register to vote, and the government can keep a registration list of whether or not you have voted.

    Yet these two examples and firearm ownership are like apple and oranges. March permits involve public property owned by the government that by its nature must be fairly rationed on a first come first serve basis when more than one group wishes to use the same public street or park on the same day, and the activity involved almost always involves a governmental presence (police, traffic control, etc.) to ensure safety. No government action is required for firearm ownership to fairly distribute limited resources or provide public safety when I have a gun in my closet.

    Similarly, voting by its very nature requires you to first pre-register and prove residency and then have your act of voting in each election recorded (unless you want to run for mayor of Chicago—where residency may not even be required for one candidate). This is because the act of voting, like marching to protest something, can only be exercised as part of a collective process, and the act of registration is required to ensure that everyone has an equal say in this collective process. If I do not register and thus attempt to “vote early and vote often” in the same election then my abuse of that voting right dilutes the same right of others to have their voice equally heard. My act of buying (or not buying) a firearm has no impact on the right of another to make the same choice, and so registration is not required to protect his right from dilution by my buying more than one gun.

    Thus—while marching, voting, and firearm ownership are all true personal, individual choices—voting and marching are rights we only use “collectively” while firearm ownership remains an individual right. It is the collective exercise of the right which requires (and thus permits) registration.

  13. #13
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    I'm not surprised about matters that involve voting and public protesting. That's why I left out those specific examples and instead went for examples of rights that could be exercised on the individual level and still be considered viable.

    I'm assuming there are no cases covering the ability/inability of the government to require the registration and documentation of a constitutional right that can be exercised by single individuals not otherwise part of a designated group or collective movement?
    [QUOTE=Brady;363469]When I was a kid I did lots of things like playing with fire and torturing animals even though adults told me not to.[/QUOTE]
    The admission of a sociopathic serial killer.

    [QUOTE=Penfold;363126]No Personal attacks, insults, name calling, offensive generalizations, or labeling.[/QUOTE]
    He should practice what he preaches.

    The three duties of government: 1. Protect property 2. preserve contracts 3. provide for the rule of law.

  14. #14
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    Quote Originally Posted by Tither View Post
    Do you have the Right to vote as many times as you like? Or did they do that so that elections are fair?
    Way to gloss over that point. I recall NATO wondering what rights exist where you have to register. Daewoo named one. You're arguing that there is a good reason for it. Fine. But then you argument is not "you shouldn't have to register for a right" but rather "you need a good reason to register for a right". At that point we can just fold up the cards and go home because you've parted ways with original understanding of the constitution.

  15. #15
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    Quote Originally Posted by Steeeeve View Post
    Way to gloss over that point. I recall NATO wondering what rights exist where you have to register. Daewoo named one. You're arguing that there is a good reason for it. Fine. But then you argument is not "you shouldn't have to register for a right" but rather "you need a good reason to register for a right". At that point we can just fold up the cards and go home because you've parted ways with original understanding of the constitution.
    No. My argument is there is no other way in order to accomplish a fair election! A very different and important point!

    Daewoo has tried to argue that our Founding Fathers registered their firearms because of the 1792 Militia act.

    Militia Act of 1792,
    IV. And be it further enacted, …
    The officers to be armed with a sword or hanger, a fusee, bayonet and belt, with a cartridge box to contain twelve cartridges; and each private of matoss shall furnish themselves…. , and to be armed with a sword and pair of pistols, the holsters of which to be covered with bearskin caps.
    He calls this gun registration, and when pressed, he then had to say that the fusee, bayonet and belt were also registered as well!

    My point is that our Founding Fathers totally distrusted government and would never have allowed the government to know where all firearms were, and who had them! Heck the Revolutionary War started when the their very own British Soldiers came to both Lexington and Concord to seize the powder stores, collecting weapons along the way! They would rather die fighting the Most Powerful Army the World had ever known, them instead of being disarmed!
    George Mason
    [W]hen the resolution of enslaving America was formed in Great Britain, the British Parliament was advised by an artful man, who was governor of Pennsylvania, to disarm the people; that it was the best and most effectual way to enslave them; but that they should not do it openly, but weaken them, and let them sink gradually...I ask, who are the militia? They consist of now of the whole people, except a few public officers. ...
    "Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel." -- Patrick Henry

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