Why Licensing Gun Owners Is Unworkable and (Probably) Unconstitutional

When I appeared on HuffPost Live to discuss guns and gun laws with Daniel Fisher of Forbes Media (that's him, to the right) and Christina Wilkie of the Huffington Post, we all agreed that gun registration is a non-starter. I think everybody pretty much thought the same of universal background checks, though I'm open to being corrected on that point. Oddly, we never got around to "assault weapons" — probably an artifact of the time that we spent discussing culture and enforceability, though I know that Fisher, to the extent that he thinks there's a gun "problem," considers it to lie in the mis-use of handguns, not long guns. Which leads us to a proposal he made, with which Wilkie seemed to agree, and which I didn't have an opportunity to rebut: That owning a handgun should require a license based on meeting certain conditions, and that violators should be harshly punished.

Fisher also mentioned his licensing idea in a Forbes article in which, after examining Canada's experience, he dismissed gun registration for reasons of both practicality and non-compliance. He also, interestingly, points out that "every country is different and rates of gun ownership versus homicides have almost no correlation with each other." Nevertheless, he suggests "there are sensible things the U.S. can do to try and curb gun violence, including following Canada's lead and passing strict regulations covering who can possess handguns — and jailing anyone found with one illegally."

The main problem that I can think of for licensing gun owners is that it converts a right that you can exercise at will into a privilege for which you need government permission. That raises important practical objections and, potentially, constitutional hurdles.

The practical objections should be clear in such a politically loaded issue: Informing millions of gun owners that they now need permission from government officials they've already clearly indicated they distrust to purchase and own firearms — something they consider a natural right — is begging for opposition and non-compliance on a massive scale. Fisher says he foresees little opposition because many gun owners have submitted to licensing and permitting requirements for concealed carry and hunting. But … hunting is a recreational activity involving a use of a firearm that's already owned. Concealed carry also involves a use of an already owned gun — and permitting requirements for concealed carry are sufficiently controversial that several states, including my own Arizona, have repealed them or made them voluntary (some people still want them for the purposes of reciprocity with other states).

Requiring a license just to own a handgun already raises hackles in those jurisdictions that require it. Making the restriction national would involve a huge political battle. With many tens of millions of handguns already in circulation, the majority of gun owners would likely refuse to submit. As for "jailing anyone found with one illegally" … Ask New York State how big an impact the draconian Rockefeller Drug Laws had on drug use. As Time's Madison Gray put it, "The laws almost immediately led to an increase in drug convictions, but no measurable decrease in overall crime." Frankly, jailing unlicensed handgun owners sounds like nothing more than a recipe for re-filling prisons that might start losing a few tenants if we ever seriously de-escalate the drug war.

As for the Constitutional issue … We'll be years discovering the exact parameters of the Heller (PDF) decision, so it's impossible to say in absolute terms that a licensing requirement for handguns wouldn't make the cut in terms of judicial scrutiny. On it's face, it shouldn't — try to imagine a license for owning a printing press or practicing journalism surviving a serious reading of the First Amendment; there's no logical reason why the Second Amendment should be applied any differently. Writing for the majority, Justice Scalia said (PDF):

Although we do not undertake anexhaustive historical analysis today of the full scope of theSecond Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Going on to overrule Washington, D.C.'s ban on handguns, Scalia continued:

Before this Court petitioners have stated that "if the handgun ban is struck down and respondent registers a handgun, he could obtain a license, assuming he is not otherwise disqualified," by which they apparently mean if he is not a felon and is not insane. Brief for Petitioners 58. Respondent conceded at oral argument that he does not "have a problem with . . . licensing" and that the District's law is permissible so long as it is "not enforced in an arbitrary and capricious manner." Tr. of Oral Arg. 74–75. We therefore assume that petitioners' issuance of a license will satisfy respondent's prayer for relief and do not address the licensing requirement.

So the Supreme Court did allow a licensing requirement to stand in D.C., but only on the explicit understanding that it amounted to a certificate for passing a background check for a short list of exclusions. Requiring, as Fisher suggests, "strict regulations" to license handgun ownership would almost certainly run afoul of the Supreme Court's ruling that "the inherent right of self-defense has been central to the Second Amendment right" and "the American people have considered the handgun to be the quintessential self-defense weapon."

Before the idea enters the national conversation, let's make it clear: requiring handgun licenses would likely be national defiance-bait that would fill prisons and fuel political animosity — in the unlikely event that it survived a Second Amendment challenge.