Hi-Tech Licensing and Registration is Still Just Licensing and Registration
Having tried and failed to impose a national firearm licensing and registration scheme on an unwilling American public for more than half a century, gun control advocates have spruced up the policy for the 21st century. In a paper titled “A Decentralized and Encrypted National Gun Registry,” a group of Brown University researchers working with Sen. Ron Wyden (D-Ore.) advanced a gun licensing and registration scheme where cryptography would purportedly protect gun owners’ data from criminal and government overreach. In fact, the proposal failed to address the primary reasons gun owners oppose firearm licensing and registration – something the researchers come close to admitting in the course of their paper.
Firearm policy has received a significant amount of attention in recent years. With that attention has come interest from an array of professional and academic fields. Individuals from far flung disciplines have attempted to wade into the gun policy debate with little depth of knowledge about the legal, political, practical, and cultural factors attendant to the issue.
Gun owners oppose firearm licensing and registration for a number of reasons. Licensing and registration measures are an infringement upon the Second Amendment right. Such measures are cumbersome, and thus burden and discourage gun ownership and use. The data could be used by criminals to target gun owners for property crime. Firearm registration is ineffective, as proven by Canada’s experiment with the long-gun registry. A RAND corporation survey of the available research on gun registration stated that the researchers “found no qualifying studies showing that firearm sales reporting, recording, and registration requirements decreased” violent crime, mass shootings, or suicide.
However, the overriding reason that gun owners oppose firearm registration is that they know for certain that government will abuse any such registry.
The Gun Control Act of 1968 is the centerpiece of federal firearms regulation. Protecting gun owners from firearm registration was a chief concern during debates over the legislation. In 1985, Sen. James McClure (R-Idaho) explained, “The central compromise of the Gun Control Act of 1968—the sine qua non for the entry of the Federal Government into any form of firearms regulation was this: Records concerning gun ownership would be maintained by dealers, not by the Federal Government and not by State and local governments.”
The Firearms Owners’ Protection Act of 1986 amended the GCA to further protect gun owners from the threat of registration. The legislation added language stating,
No such rule or regulation prescribed after the date of the enactment of the Firearms Owners’ Protection Act may require that records required to be maintained under this chapter or any portion of the contents of such records, be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or any political subdivision thereof, nor that any system of registration of firearms, firearms owners, or firearms transactions or dispositions be established.
The Brady Act of 1993, which provided for the establishment of the National Instant Criminal Background Check System, made clear the NICS cannot be used to create a firearms registry. The language states that the NICS must “destroy all records of the system with respect to the call (other than the identifying number and the date the number was assigned) and all records of the system relating to the person or the transfer.” Further, the Brady Act prohibited any “department, agency, officer, or employee of the United States” from requiring any record generated by the NICS to be retained or to use the system to establish a firearms registry.
These protections have proven vital.
Gun control advocates no longer hide their goal of firearms confiscation. During the 2020 presidential campaign both Joe Biden and Kamala Harris made clear that they intend to confiscate firearms.
During an August 5, 2019 CNN interview, Biden had the following exchange with host Anderson Cooper when asked about firearm confiscation:
Cooper: So, to gun owners out there who say well a Biden administration means they are going to come for my guns.
Biden: Bingo! You’re right if you have an assault weapon.
As District Attorney of San Francisco, Harris signed on to an amicus curiae brief in the U.S. Supreme Court case District of Columbia v. Heller that argued the Second Amendment does not protect an individual right to keep and bear arms. On the September 16 edition of “The Tonight Show Starring Jimmy Fallon,” Harris shared her support for gun confiscation. During a question and answer session, an audience member asked Harris “Do you believe in the mandatory buyback of quote-unquote assault weapons and whether or not you do, how does that idea not go against fundamentally the Second Amendment?” The candidate responded “I do believe that we need to do buybacks.”
Reasonable gun owners must assume that any firearm licensing and registration scheme would be used to advance firearm confiscation.
Further, the federal the government has sought to undermine and circumvent the existing statutory protections prohibiting firearm registration at every turn.
As noted, the Brady Act established the NICS and contained a section that prohibited using the system for firearms registration. Despite this clear prohibition, shortly after the NICS launched in 1998, NRA learned that the FBI was retaining data on gun owners and lawful firearms transactions in what it termed an “audit log.” In NRA v. Reno, NRA sued the attorney general to halt the practice. It was Biden’s nominee for Attorney General, U.S. Court of Appeals for the D.C. Circuit Judge Merrick Garland, who along with two colleagues, allowed the practice to continue.
In 2012, the Barack Obama Administration perverted federal statute to create a registry of the sale of certain firearms in the Southwest border states.
Under federal law, gun dealers are required to report to the federal government the transfer of two or more handguns to a single individual within the course of five days. Further, in instances limited in scope, the Attorney General is authorized to require specific firearm transaction data from an FFL through what is termed a “demand letter.”
Stretching the statutory authority beyond all reason, the Obama Administration used the “demand letter” language to require all of the 8,700 firearm dealers in California, Arizona, New Mexico and Texas to report all sales of two or more semi-automatic rifles within five consecutive business days, if the rifles are larger than .22 caliber and use detachable magazines. Despite the federal statutory protections prohibiting a firearm registry, the practice continues today and amounts to a firearms registry for those who have engaged in the implicated sales.
In 2013, NRA joined an ACLU lawsuit against the National Security Administration for their domestic spying. In an amicus brief, NRA explained that the federal government interpretation of federal law that permitted the NSA’s domestic spying violated the aforementioned federal statutory protections that prohibit the creation of a firearm registry.
Moreover, firearm registration has already been used to confiscate the firearms of law-abiding Americans.
In 1967, New York City enacted a law requiring the registration of rifles and shotguns. In 1991 the city banned many semi-automatic firearms. As New York City already possessed a registry of firearms and their owners, the city notified the owners that their newly illegal firearms must be removed from the five boroughs (not a realistic option for many people of lesser means), permanently disabled, or relinquished to the authorities. This scenario played out again in 2013, when the NYPD sent out another round of letters to New York City gun owners, once again demanding the removal, destruction, or surrender of legally registered firearms made illegal by a subsequent law.
Given the political actors’ stated aims and the government’s history of abuse, no amount of purported technological or legislative safeguards is enough to convince gun owners that those charged with constructing and tasked with administering a firearm licensing and registration database would do so in a benevolent manner. The only solution is to deprive these potential malicious actors of this information entirely.
In an attempt to quell gun owner concerns, the Brown researchers push the construction of what they call an encrypted and decentralized database. The system would be designed to conform to legislation being drafted by anti-gun Sen. Ron Wyden (D-Ore.) that would incentivize (bribe) local jurisdictions into creating jurisdiction-wide firearm registries that could then be accessed by the federal government. The researchers explained,
At a high level, the legislation would require all gun owners in a participating US county to register their firearms with a local official by providing information about the make, model, caliber or gauge, and serial number along with the owner's registration number. This information would be stored in an end-to-end encrypted database whose key is known only to the local official. The encrypted database itself would be hosted on state servers or the cloud to guarantee a higher degree of availability. A county's encrypted database would be quarriable by law enforcement agents and other officials but the query process would be overseen by the county's official.
Later on, the researchers elaborated,
In order to ensure the security and privacy of the data, each county designates a local official who is responsible for an encryption key. This key is required in order to view, query, update, and encrypt any registration data corresponding to the county. No additional parties may access any licensing or registration data from a county without this key. The local official must also upload any new licensing or registration data to the system.
Authorized users of the system include, but are not limited to, other local county officials, law enforcement personnel, and firearm distributors. These individuals are permitted to query the system for registration and licensing data but may not delete or update this data, unless they are the county's designated local official. At minimum the data collected includes basic personal information about a licensed firearm owner, including their license number, and information about their individual firearms (specifically, the make, model, caliber, and serial number).
The key problem with the researchers’ proposed firearms registry, and with all firearms registries, is that it relies on the human actors responsible for creating and operating the system to do so in good faith and without designs to abuse the data with which they have been entrusted. Under the scheme, a variety of government actors would be able to access private data on firearm owners and their firearms – precisely what gun owners have objected to all along.
The researchers contend that this problem can be solved by placing local government officials in charge of data collection, retention, and access – as if local officials are immune to malicious intent. Now consider that county and city participation in the system is, at least at first, supposed to be voluntary. In practice, only the most ideologically anti-gun jurisdictions would opt into the registration scheme. Therefore, a gun owner could expect little protection from this delegation of record keeping.
This problem is exacerbated by the erosion of federalism. The federal government increasingly uses its resources to dictate the actions of state and local governments – Wyden’s draft legislation is an example. The notion that the agents of what all too often amount to administrative sub-units of the federal government would provide any protection from the federal government is absurd.
The researchers attempt to resolve concerns over the bulk access of firearm owner data by stating that the system could be constructed in a manner that would throttle the number of searches that could be conducted during a given time period. Even if those constructing the registry could assure such a check on bulk queries, it would offer gun owners little protection in a confiscation scenario.
Consider what might happen in a hypothetical confiscation scenario in which the proposed registry existed: As is her stated desire, President Kamala Harris just signed legislation that bans AR-15s and institutes a mandatory gun turn-in program. The government would have neither the man power nor the bulk data on AR-15 owners necessary to go door to door to confiscate guns. However, with a registry, they could determine and target a set number of AR-15 owners each day. Given the threat that they could be targeted next, gun owners would be terrorized into complying with the confiscation mandate.
The researchers also make the mistake of operating as if their proposed registry would exist in a fixed legal environment. This is not the case. Once the proposed firearm registry was established and populated, government actors would seek to make it mandatory for all jurisdictions and undermine any residual gun owner protections.
Consider what has happened following the enactment of the Brady Act. Despite the protections for gun owners agreed to in the bill, only two years after enactment, legislation was introduced to require handgun registration. Since the NICS went online, each Congress has seen efforts to expand the types of firearms transfers subject to a background check. Federal bills have been introduced to undo the prohibitions on records retention. Any firearms registry, no matter how constructed, would be subject to a never-ending legal assault aimed at its expansion and the elimination of gun owner protections.
Near the end of their paper, the researchers acknowledged some of the potential shortcomings of any firearms registry. They noted,
We acknowledge… that introducing a protocol designed specifically for data collection by law enforcement has the potential for abuse and we recognize and strongly oppose existing forms of nonconsensual data collection by law enforcement. We are also aware that giving law enforcement access to data on citizens can enable the abuse of that data beyond the original intent of its collection.
Finally, the group acknowledged the entire purpose of Wyden’s draft legislation. The researchers stated, “While new developments in cryptography can enhance privacy, the use of privacy-enhancing technologies can also be used as cover to request access to more data.”
Wyden and the researchers have put a hi-tech veneer on firearm registration in order to trick gun owners into turning over data they have long-resisted sharing. Firearm owners should see this scheme for what it is, plain old firearm registration, and reject it out of hand.
© 2021 National Rifle Association of America, Institute for Legislative Action. This may be reproduced. This may not be reproduced for commercial purposes.