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Gun Registration and Gun Control
by Bartholomew Roberts[*]

Introduction

Both President Clinton and Vice-President Gore strongly support the registration of all handguns. Some states currently have a handgun registration system, California has had de facto handgun registration in some form for over seventy years.

This page describes three basic gun registration schemes and their purpose, and explains why gun registration is fiercely opposed by gun rights advocates.

Firearm Registration Scheme #1 - The Existing National Registration System

Note: National Firearms Act weapons (such as full-auto firearms) are handled differently from the following discussion, and require a more stringent registration and purchasing procedure. (See the Bureau of Alcohol, Tobacco, and Firearms, National Firearms Act FAQ.)

The following regulations were established by the Gun Control Act of 1968.

People engaged in selling firearms as a business must have a federal firearms license (FFL). Individuals and collectors are allowed to sell and trade their firearms without this license, but it is illegal to earn a living selling firearms without it. When purchasing a firearm from an FFL, a Form 4473 (also known as the "Yellow Form") and Form 77 must be filled out. The dealer must also record the sale in his bound-book (similar to a transaction log). (Form 77 was not established by this law, but is an effort by licensed firearms dealers to promote safety and lessen dealer liability.)

The Form 4473 contains the name, address, driver license information, NICS background check transaction number, serial number and model of the firearm, and a short federal affidavit stating that the purchaser is eligible to purchase firearms under federal law. Lying on this form is a felony and can be punished by up to five years in prison in addition to fines, even if the transaction is denied by the National Instant Criminal Background Check System (NICS).

The Form 77 is a short form indicating that the purchaser of the weapon is knowledgeable about the function of the weapon and basic safety rules. The purchaser must also attest that the dealer has explained these rules such that the customer understood them.

The dealer must keep the Form 4473 for twenty years and is subject to inspection by the Bureau of Alcohol, Tobacco, and Firearms (BATF or just ATF). The dealer also records all information from the form 4473 into his bound-book. A dealer must keep this log the entire time he is in business and is required to surrender the log to the ATF upon retirement from the firearms business.

In addition, the sale of two or more handguns within five days to the same person must be reported to the ATF via a Form 3310.4.

Firearms Tracing with Registration Scheme #1

These forms and records are used by law enforcement agencies to trace firearms associated with crime. To initiate a firearm trace, the police must note the serial number of the gun, then forward a firearm trace request (Form 3312.1) with other pertinent information to the ATF. The ATF then contacts the manufacturer who identifies the wholesaler that bought the firearm. The wholesaler then refers the ATF to the retail dealer who, using the bound-book, identifies the original retail purchaser.

The ATF considers a trace successful if the original purchaser is identified. Normally at this point, the ATF turns the case over to local law enforcement, however in rare cases the ATF attempts to follow the chain of possession. To trace a gun beyond the first retail purchaser, law enforcement authorities must conduct interviews and use informants, and of course these methods are often unsuccessful.

It averages 11.4 days to trace a firearm to the first retail purchaser. The ATF has developed a computer system that reduces trace time to an average of five days. Participation is voluntary, and it is anticipated the number of licensees participating will increase. (ATF, Commerce in Firearms in the United States, February 2000, p. 20)

The same ATF publication (p. 25) says, "Approximately 200,000 trace requests were received in 1999...A firearms trace currently identifies the first retail dealer for approximately 60 percent of trace requests and the first retail purchaser for approximately 40 percent of trace requests." (The report lists the reasons why many traces fail.)

However, ATF trace requests are not necessarily representative of crime guns or gun traces:

"One reason that few [violent crime] guns are traced is that information about the chain of custody from manufacturer to retail sale is often not necessary for prosecution of state and local gun crimes. After all, a District Attorney bringing an armed robbery case needs to prove that the defendant used a gun, not that the defendant used a gun with a particular pedigree. In some cases, local police may find it faster to conduct a trace themselves than to ask BATF to perform the trace.

"Further, some jurisdictions-such as New York, Maryland, California, New Jersey, and Massachusetts-keep detailed records of all legal ownership of handguns, or of all guns. These jurisdictions would logically use their own records first for gun tracing, and would turn to BATF only when their own data failed." (Kopel, David B. Tracing Misinformation: How Anti-gun Activists Misuse BATF Data, 1998)

Firearm Registration Scheme #2 - Firearm Fingerprinting

Every firearm leaves a set of unique marks not only on the bullet, but on the case as well. This combination of markings allows police to track bullets and their casings the same way investigators run fingerprint checks. Firearm fingerprinting can be an invaluable tool to law enforcement since it can link together crimes that otherwise would be pursued as separate cases. An automated tracing system has been created (Integrated Ballistics Identification System) to implement this scheme. (Department of Justice, Promising Strategies to Reduce Gun Violence, Section IV: Strategies To Interrupt Sources of Illegal Guns, July 21, 2000)

In addition to recording the markings from guns used in crimes, the system is designed to record markings from the test firing of every new gun. Currently, manufacturer participation is voluntary and only Glock USA, is contributing information to the database. If the database does eventually contain the majority of firearms in the US, it would be possible for the police to start the trace process with nothing more than a bullet or a casing left at a crime scene.

Since individual owners of weapons are not directly identified, firearm fingerprinting cannot be used to confiscate legally owned firearms. Law enforcement can also pursue a trace without having to have the actual gun. Only a bullet or an empty casing is needed to trace a weapon. This method can be used to supplement other registration schemes.

However, bullets are rarely recovered intact and because the "fingerprint" of a gun is based on the parts used in the gun (the firing pin, extractor, barrel, etc.), as these parts experience wear through use, the fingerprint will change. It is also possible to completely alter the fingerprint just by replacing some or all of the parts that come into contact with the bullet or casing. Certain weapons are less vulnerable to this type of tracing. For example, smoothbore firearms (such as shotguns and some antique firearms) do not have any rifling in the barrel to leave marks on the projectile. Finally, something as simple as the use of a file on the parts coming into contact with the casing can alter the fingerprint of the gun to the point where it is no longer identifiable.

For more reading on ballistic information systems:

Firearm Registration Scheme #3 - Centralized Registration System

Firearms are registered in a central database to their current owners. All legal firearms must be registered. At a minimum, owner name(s), driver license number or other valid identification number, address at the time of registration, and firearm serial and model number are associated with each gun.

In order to trace a firearm, law enforcement simply enters the information into a computer and receives the last registered owner, as well as all firearms at that location or owned by that person. This system is also able to trace the complete chain of transactions from original seller to the last legal purchaser.

Less labor intensive than the first scheme, the last registered owner can be found quicker and with less work. It allows greater flexibility for law enforcement since they can obtain firearms information based on name or serial number.

Are There Benefits to a Firearms Registration Scheme?

The Canadian government thinks so. This link responds to each of the 10 reasons they give for enacting a centralized gun registration scheme.

Registration, Criminals, and Self-Incrimination

For a brief period, the Supreme Court held in 1968 (Haynes v. U.S., 390 U.S. 85) that felons were exempt from federal and state laws regarding registration because it violated their Fifth Amendment protection against self-incrimination. In other words, only people who were not criminals could be prosecuted for failing to register a firearm or found to be in possession of an unregistered firearm. However, in 1971, (U.S. v. Freed, 401 U.S. 601) the Court held that due to changes in the National Firearms Act of 1968 the law no longer violated the 5th Amendment rights of felons.

Why Gun Rights Advocates Oppose Gun Registration

A centralized registration system is the one usually proposed by gun control activists, and it is the type most feared by gun rights advocates. At the heart of resistance to registration is the belief that it encourages firearm prohibitions and ultimately leads to confiscation. (It is also why many choose not to comply and register weapons already owned.)

Those who favor more gun control often accuse gun owners of being paranoid, but the track record of firearms registration is not a good one.

The poor record of gun control and registration in countries without democratic traditions is discussed in these two sources and will not be elaborated upon here:

Democratic societies have also used registration to confiscate what were once previously legally-owned firearms. Many gun rights advocates "believe that a nucleus of anti-gun activists will agitate for restrictions and bans on the 'most dangerous' type of firearm in common use. When that gun is banned they will move on to the next model which will in turn become the 'most dangerous' type. Firearms owners fears are supported by what has happened recently in the UK, Australia, and Canada, and has previously happened in NZ [New Zealand]." (The Registration of Firearms: A Compendium of Available Fact From Australia, Canada, and New Zealand, 1998)

Gun Confiscation in Democratic Societies

New Zealand has had some form of firearms registration since 1921. In 1974, all revolvers lawfully held for personal security were confiscated. (Same source as previous paragraph)

In May of 1995, Canada's Bill C-68 prohibited previously legal and registered small-caliber handguns. Current owners of such guns were "grandfathered," which means the guns are to be forfeited upon death of the owner. Bill C-68 also authorizes the Canadian government to enact future weapons prohibitions.

On 10 May 1996, Australia banned most semi-automatic rifles and semi-automatic and pump shotguns. Prior to this law, many Australian states and territories had firearms registration. Owners of these newly outlawed firearms were required to surrender them (with some monetary compensation). All such firearms are to be confiscated and destroyed after a 12-month amnesty program. Roughly 600,000 of an estimated 4 million Australian guns have been surrendered to authorities and destroyed.

"Since 1921, all lawfully-owned handguns in Great Britain are registered with the government, so handgun owners have little choice but to surrender their guns in exchange for payment according to government schedule...The handgun ban by no means has satiated the anti-gun appetite in Great Britain." (All the Way Down the Slippery Slope: Gun Prohibition in England and Some Lessons for Civil Liberties in America", Hamline Law Review, 1999)

Even in the United States, registration has been used to outlaw and confiscate firearms. In New York City, a registration system enacted in 1967 for long guns, was used in the early 1990s to confiscate lawfully owned semiautomatic rifles and shotguns. (Same source as previous paragraph) The New York City Council banned firearms that had been classified by the city as "assault weapons." This was done despite the testimony of Police Commissioner Lee Brown that no registered "assault weapon" had been used in a violent crime in the city. The 2,340 New Yorkers who had registered their firearms were notified that these firearms had to be surrendered, rendered inoperable, or taken out of the city. (NRA/ILA Fact Sheet: Firearms Registration: New York City's Lesson)

More recently, California revoked a grace period for the registration of certain rifles (SKS Sporters) and declared that any such weapons registered during that period were illegal. (California Penal Code, Chapter 2.3, Roberti-Ross Assault Weapons Control Act of 1989 section 12281(f) ) In addition, California has prohibited certain semi-automatic long-rifles and pistols. Those guns currently owned, must be registered, and upon the death of the owner, either surrendered or moved out of state. (FAQ #13 from the California DOJ Firearms Division Page)

A Compromise Registration Scheme?

A major weakness of the current national registration system is that secondary transactions, such as private sales, are not recorded. This could be fixed by requiring all firearm transactions to be recorded, similarly to what California does with handguns. California requires all firearm sales go through a licensed dealer, and the state maintains a record of handgun purchases and transfers (U.S. Department of Justice, Survey of State Procedures Related to Firearm Sales, 1997 ).

However, instead of keeping these transactions at a central location, the dealers would be required to report a sale to the appropriate firearms manufacturer, who would maintain a transaction record similar to what licensed dealers are required to keep now. (Having manufacturers maintain these records, preserves the transaction chain. Transactions for defunct companies would be handled the same way as licensed dealers or retailers who go out of business, the records are turned-over to the BATF.)

To balance the fear that registration would be used to confiscate legitimately owned firearms, the government would guarantee a payment of 2 million inflation-adjusted dollars for every legally registered firearm subsequently banned by the government. This offers gun owners a safeguard that their property rights would be respected and at the same time it would make widespread confiscation of legally-owned firearms economically unfeasible.

Most gun control advocates would turn pale at the prospect of such a proposal since it attempts to preserve gun rights. Unfortunately an ironclad compromise such as this cannot exist. The above proposal is flawed because all Congress need do is simply pass another law lowering or eliminating the payment guarantee. Unfortunately there are no guarantees in politics.

Another problem with a national registration system is state and local governments are not prevented from enacting gun bans, yet a national registry of gun owners would exist.

Since the Second Amendment, and gun rights in general, are seldom treated as normal constitutional law, what may seem like "sensible" solutions, will be fiercely opposed by gun rights advocates.

The Reality of Gun Control Politics

How can politicians or governments be trusted with a gun registration list when the president of the United States says one thing [sort of implying the Second Amendment may protect some kind of individual right]...

"If you look at the history of the Second Amendment and what led to its adoption, there is, it's my view, nothing in there which prevents reasonable measures designed to keep guns out of the hands of criminals and kids. To say that criminals have an absolute right to get guns, and we're just going to throw the book at them if we catch them, but we can't prevent them from committing a crime in the first place, I think is wrong."
( NBC's Tom Brokaw discusses gun control with the president, April 12, 2000)
While on the other hand, the U.S. government is arguing in federal court (see U.S. v. Emerson information) that there is absolutely no right of an individual to own firearms!
Judge Garwood: "You are saying that the Second Amendment is consistent with a position that you can take guns away from the public? You can restrict ownership of rifles, pistols and shotguns from all people? Is that the position of the United States?"

Meteja (attorney for the government): "Yes"

Garwood: "Is it the position of the United States that persons who are not in the National Guard are afforded no protections under the Second Amendment?"

Meteja: "Exactly."

Meteja then said that even membership in the National Guard isn't enough to protect the private ownership of a firearm. It wouldn't protect the guns owned at the home of someone in the National Guard.

Garwood: "Membership in the National Guard isn't enough? What else is needed?"

Meteja: "The weapon in question must be used IN the National Guard."
(Excerpt of oral arguments in U.S. v. Emerson, 5th Circuit Court of Appeals, June 13, 2000)

As further evidence that creating a national, state, or local registration list of gun owners and their guns is hazardous to the preservation of gun rights, please see GunCite's "Nobody wants to take your guns."

What Can be Done?

The "blood" of gun violence victims is not on the hands or the consciences of gun rights supporters, but on those who have refused to acknowledge, preserve, and guarantee the rights of law-abiding gun owners.

Since, in the near future, a legitimate compromise on the issue of firearm registration is extremely unlikely, what can be done to prevent and discourage criminals from getting guns? Or, more precisely what can be done to discourage legally obtained guns from being transferred to criminals?

National Institute of Justice authors James Wright and Peter Rossi outlined a scheme to enhance enforcement capabilities:

"[S]tiff penalties for firearms transfers to felons whenever these were detected and, in the same framework, stiff penalties for the crime of gun theft. Enhanced penalties for transfers to felons were added to federal law in 1986, and should be added to state laws as well. To assist prosecutions of gun theft, states should follow Virginia's lead, and make sale of a stolen firearm a special, serious offense. In many states, the theft and sale of $75 gun amounts to only petty larceny. Selling a 'hot' $75 pistol should be a more serious offense than selling a 'hot' $75 toaster-oven.

"Other ways to keep criminals away from guns include closer monitoring of parolees and probationers, and more intensive crackdowns on fencing operations for stolen firearms. State or federal strike forces aimed directly at gun-runners might be introduced or augmented...

"Funding for any of the above programs should come from the same general revenues that support all law enforcement, or from a special assessment on convicted gun felons. Persons exercising their Constitutional right to bear arms should not be forced to pay a special tax to support enforcement efforts against gun criminals, any more than camera owners or magazine readers should be taxed to pay for enforcement of child pornography laws." (Kopel, David, WHY GUN WAITING PERIODS THREATEN PUBLIC SAFETY)

To read more about the tremendous effect that enforcing existing gun laws (with swift, certain, and severe punishment) has had on reducing gun crime and violence, please see GunCite's "Enforcing the laws we already have."

Conclusion

Although there may be some benefit to firearms registration (the degree of which is very debatable), successful and practical alternatives have been suggested. Just as we have certain safeguards to protect our civil liberties, even though they may impede crime-fighting efforts, due to the very real danger and potential for abuse that a firearm registration system presents, gun rights activists will continue to vigorously oppose gun registration schemes.

[*]Bartholomew Roberts is a pseudonym, but he will respond to email.
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