Heller implications for Licensing

It is interesting to note that the Heller decision does not rule out licensing requirements for firearm ownership.

From the syllabus of the Heller decision:

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.

This is interesting because while it says that the Court does not address the licensing requirement, they assume the license will satisfy the request for legal firearm ownership. Also interesting is that the Court says that unless Heller is disqualified from exercising second amendment rights, the district must issue him a license.

The upshot of all this is that it leaves the door open for states to require licensing for firearm ownership. We need to work to make sure that any such licensing schemes preserve the anonymity of firearm ownership, so that the ideal of the militia is preserved:

"The prefatory clause comports with the Court’s interpretation
of the operative clause. The “militia” comprised all males physically
capable of acting in concert for the common defense. The Antifederalists
feared that the Federal Government would disarm the people in
order to disable this citizens’ militia, enabling a politicized standing
army or a select militia to rule. The response was to deny Congress
power to abridge the ancient right of individuals to keep and bear
arms, so that the ideal of a citizens’ militia would be preserved."

Emphasis mine. Note that the Court here recognizes the fundamental reason for the right to bear arms, and recognizes the risk of disarming the people in order to disable the citizens' militia.

Anonymous firearm ownership is necessary to preserve the ideal of a citizens' militia, and to deny Congress the power to abridge that ideal.

I think that's OK-Pennsylvanian issues a License to Carry a Firearm on that basis-it licenses the person rather than the weapon.
Also note the uses of the term weapon rather than just firearm.

Mabe a lot of potential here for repealing knife laws, too.

mark

But it is not sufficient to simply license people, either. Because if we only license people who own firearms, and all legal firearm owners are required to have a license, then, by default, you have a government-maintained list of all firearm owners.

I prefer the suggestion made to license everyone at the time you obtain a driver's license or state ID. At that time your ID would be marked with a small "F" to indicate you are approved to possess firearms. In this manner the bulk of the population will be vetted for firearm possession, whether they actually possess them or not. Consequently, the government will have no list of who owns firearms. Back up this mechanism with stiff penalties for people found in possession of firearms without the proper permit.

Follow this up with a law that requires a record of all private firearm transactions to be kept by the seller for 10 years. This record to include the data of transfer and the FOID number of the buyer. This data will be kept by the seller for 10 years and only provided to the government with a court order. Back this up with stiff penalties for firearms traced back to a seller who cannot provide a record of the transfer.

This mechanism would screen all firearm purchases against NICS, not just store purchases. Yet it would preserve the anonymity of firearm owners while preserving the ability to manually track firearm transfers by legitimate, court-ordered law enforcement needs.

firearms.

ON EDIT ADD:
Wikipedia re Canadian gun registry is a recent example of the next battle over RKBA.

they assume the license will satisfy the request for legal firearm ownership--OP



The Court is simply not giving the petitioner more than he asked for. They are answering "his prayer for relief." They are explicitly not addressing the licensing issue. That's what they said.

My personal take--it is unconstitutional to charge for the exercise of a right. You can license concealed carry and charge a reasonable fee, for example, but then you must allow open carry.

Poll taxes.

I saw the "must" word (similar to "shall"?) and also noted the minimalist approach of the Court. I think the Court's using "must" is an anticipation of abuses which could come from licensing. Those abuses could come in the form of subterfuge which denies large numbers of potential applicants, and it could come in the use of data gathered by the licensor (D.C.). The court is so conservative that many liberal gun-controllers should be thanking them for not taking a more modern "liberal" approach and making a sweeping ruling, using especially the 14th Amendment.

I think the next battles will be over licensing for home-use only, fees and arbitrary "may issue" procedure. From watching last night's PBS news, it sounds as if D.C. will try to dig. Future courts will have a reckoning as they face the various challenges first instituted long ago by the Jim Crow era in the South.