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Home > Journals > Michigan Law Review > MLR FI > Vol. 112

 

Abstract

On December 23, 2012, a newspaper in upstate New York published a provocative map. On it appeared the names and addresses of thousands of gun owners in nearby counties, all precisely pinpointed for the world to browse. The source of this information: publicly available data drawn from the state’s gun registry. Legislators were quick to respond. Within a month, a new law offered gun owners the chance to permanently remove their identities from the registry with a simple call to their county clerk. The map raised interesting questions about broadcasting personal information, but a more fundamental question remains: Are these gun registries even constitutional? The mass “exposure” of gun owners—used as a form of public shaming—is particularly troubling because it would have been impossible without the government’s registration requirement. The map confirmed a fear held by many opponents of registries: compilation of personal information could lead to reprisals, either by the media or through the state itself. This, they claim, implicates their Second Amendment rights. In states that insist on registration, opponents have had to mold constitutional arguments to challenge registries in the courts. One such argument grows from the First Amendment. Gun ownership, like speech, is a tool of political dissent. Both guns and speech empower individuals to resist governmental oppression, at least in theory. Yet both become blunt tools if the government imposes registration requirements that numb the right. So, the argument goes, these tools of political dissent must remain unregistered if they are to provide the robust protection against tyranny that the Framers sought. This Essay argues that the First Amendment can be a powerful analogue in Second Amendment challenges to gun registries. Part I explores the notion of guns as a tool of political dissent through the lens of history. Part II examines three First Amendment cases that could shape the analogue to challenge gun registries. Finally, Part III uses these three decisions to sketch out a blueprint that legislators and litigants can use to analyze gun registries.

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