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Abstract
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Two serious challenges exist to the effectiveness of any form of firearms control program. One has been tested in the courts and the other has not. If either or both are accepted, then no firearms control legislation will be effective.
First, there is the question of prior restraint which would apply primarily to firearms registration or licensing legislation. In 1931 the Supreme Court held that the states cannot preclude the publication of a newspaper simply because that publication had a history of libelous activity. In short, prior censorship was not permitted regardless of the circumstances. Instead of enjoining an individual from publishing, the most the state can do in the exercise of its police power is to exercise its power to punish individuals for violations of the law as these breaches occur.
If the principle of prior restraint is applicable to the right to keep and bear arms, and no court has yet held that it is, then the states could not enjoin the citizen-soldier from owning firearms as would be allowed under court definitions. The state could then punish at will violations of the law when and if a citizen used his firearm illegally, but it could not prevent him from owning a firearm through some form of prior restraint mechanism.
Because of the grave dangers which firearms can present, the courts might allow the states or the federal government to prevent certain classes of people from bearing or keeping arms within the mitigated doctrine of prior restraint provided that this decision is made on a rational basis. Such groups could include, for example, former convicted felons, drug addicts or alcoholics.
The second challenge to the effectiveness of firearm control programs involves a citizen's right against self-incrimination. In a series of 1968 decisions the Supreme Court invalidated a federal gambling tax stamp on the grounds that to identify one's self as a gambler pursuant to federal law might subject an individual to state prosecution. The Court also indicated that a criminal might not have to follow certain provisions of the 1968 Federal Gun Control Act for the same reason. This might mean, as it is interpreted further by the courts, that only law abiding citizens would have to abide by provisions of this law and any similar subsequent legislation.
If this principle is judiciously continued the right against self-incrimination could be more significant in the protection of the right to keep and bear arms than the second amendment. Presumably, the same protection could be offered against state controls since the fifth amendment has been incorporated through the fourteenth amendment and is thus applicable to the states. |