Gun Reform Legislation

Local Attorney Says Gun Registration Bill is Unconstitutional

Local Attorney Says Gun Registration Bill is Unconstitutional

The following article appeared in the Newport Patch on April 9, 2013 (here is a link to the original post):

Editor’s Note:  State Rep Linda Finn (D-Middletown, Portsmouth) introduced legislation (2013-H 5573) in February, that would require Rhode Island gun owners to register their weapons with local police or the state police and pay a $100 registration fee.

Many Patch readers expressed concerns about the constitutionality of the proposal.  We sat down with Kevin Hagan, an attorney based out of Newport, to review the bill from a constitutional perspective, and help sort out fact from fiction. Hagan has taught Law and Society at CCRI in Newport that includes coursework on the Second Amendment. 

Patch:   Some readers said there was a difference between rights and privileges. For example, one reader said that that owning a car is a privilege, which can be subjected to a registration fee, but owning a gun is a right.  Is there a distinction?   

Hagan: It’s not a right vs. privilege analysis. It’s an individual rights analysis.  Once the Supreme Court determines something is an individual right, it’s at the paramount level of constitutional protection. Freedom of speech has been determined to be an individual right, and it is therefore carefully protected under the First Amendment.  Examples of that are pornography, contraceptives, abortion — those have been determined to be individual rights.

Patch:  Is the right to own a gun an individual right?  

Hagan: Yes. In 2008, in District of Columbia vs. Heller, Justice Scalia authored the opinion that the right to bear arms is an individual right.  It was a mystery for the last 100 years whether or not it was an individual right or a right of the militia, such as army and law enforcement

Justice Scalia was clear about certain exceptions, such as people that are intoxicated, mentally ill or felons. There is even a restriction on types of firearms.  You can’t have a rocket launcher or sawed-off shotguns.  Individual rights can be limited, but there must be a compelling government interest to impose regulation.

Patch:  How does that decision impact gun legislation?
Hagan: Any regulation of an individual right is subjected to strict scrutiny, which refers to the most stringent standard of judicial review used by United States court. Public safety is a compelling government interest, but the limitation on the right must directly correspond to that interest.  In the example of the gun registration bill, it must be demonstrated that the $100 fee and the registration requirement will directly contribute to public safety.

Patch: Does this gun registration bill violate the constitution?

Hagan:  In my opinion, yes. I don’t think it’s narrowly tailored. How does a $100 registration fee enhance the public safety?  There is no evidence whatsoever that registration fees or even registration requirements have a beneficial impact on public safety.

I want to be clear that I’m not a gun person.  I’ve never fired a gun. I don’t own any guns. I’m evaluating it only from a constitutional perspective.

Lawmakers would have to provide empirical evidence that the proposed changes directly correlate to public safety.  There is not only a lack of evidence the bill would improve public safety, but other countries have tried similar gun registration programs and failed. A
similar gun registration program in Canada failed to reduce crime and was far more expensive than expected.  

I don’t presume to know what alternatives may be. That’s the great thing about the state legislature, they have the resources to look at empirical evidence. It quite simply hasn’t been done.

Kevin Hagan can be contacted at
The information in this article is for informational purposes only; it does not constitute legal advice. This content does not create an attorney-client relationship.