The Attorney General of New Jersey has sent subpoenas to gun dealers in the state demanding production of customer records regarding sales of GLOCK pistols to New Jersey residents for the last ten years. The subpoenas are in connection to its lawsuit against GLOCK, Inc. under the state’s public nuisance law.
(NOTE: The claims in the state’s frivolous lawfare against GLOCK aren’t relevant to this particular article. But for context, the state is claiming the over 40-year-old design of the gun is too easy to illegally convert into a machine gun. Other states have filed similar lawsuits, and some like California have now banned the sale of GLOCKs, which are the most popular handguns in the country. These efforts are a way to coverup the failures of leadership
in anti-gun states.)
It’s not immediately clear why New Jersey needs these records, given the state already maintains a de facto registry for handguns through its pistol permitting system. It could be that the Attorney General wants to make these records public, as under New Jersey law and in a small nod towards respecting privacy, firearm registration records are exempt from public disclosure under the state’s laws.
Regardless of the reason for the subpoenas, they are an unconstitutional attack on gun owner privacy. This article takes a brief look at this emerging issue in Second Amendment law to show why New Jersey’s actions are unconstitutional. It is adapted from prior amicus briefing the Second Amendment foundation has done on this issue.
Privacy in Firearms Ownership Has Always Been a Fundamental Component of the Second Amendment Right
For many people who choose to exercise their Second Amendment rights, their status as a gun owner remains an intensely private matter. Americans have a variety of reasons for wanting to keep their gun ownership to themselves.
For some who live in high crime neighborhoods, they may fear that the very firearms they own for self-defense could be an enticing target for burglars when they are not home. Others may not want their friends, family, or local community to know they own firearms because they fear the potential social ostracism that may occur in the places where gun ownership remains controversial.
Whatever their reasons for secrecy, our historical tradition supports the idea that Americans have a reasonable expectation of privacy in their status as gun owners. The Second Amendment was crafted both to recognize what the Founders saw as a natural right, but also as a check on potential government tyranny.
Given that latter motivation, privacy in gun ownership has always gone hand-in-hand with the right. Today, an assortment of federal and state laws protect gun owner privacy to various degrees and in different ways.
New Jersey forcing dealers to divulge their gun sales records, unconnected to solving any specific crime, clearly implicates the plain text of the Second Amendment because it attacks the privacy of gun owners. “The Second Amendment’s text is not limited to direct prohibitions on possessing or using firearms. It states that the ‘right of the people to keep and bear Arms, shall not be infringed.’ ” Given that, laws and regulations are only permissible if they square with “this Nation’s historical tradition of firearm regulation.”
a. The Second Amendment was created as an anti-tyranny provision.
Explaining the intrinsic private nature of the Second Amendment right requires a detour into history, and in particular, an understanding that the Second Amendment was created by people who had just revolted against a tyrannical government.
The Founders sought to guarantee the People had a final recourse should the new government they were forming also turn tyrannical. Tench Coxe, a delegate to the Annapolis Convention in 1786 and the Continental Congress in 1788, wrote of Madison’s draft of the Second Amendment that “[w]hereas civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, … the people are confirmed by the article in their right to keep and bear their private arms.” Remarks on the First Part of the Amendments to the Federal Constitution, under the pseudonym “A Pennsylvanian” in the Philadelphia Federal Gazette, June 18, 1789.
Coxe’s view dominated the Founding era and nineteenth century. And the Second Amendment’s original meaning has not changed. In a speech in the House of Representatives, abolitionist Representative Edward Wade said the “right to ‘keep and bear arms,’ is thus guarantied, in order that if the liberties of the people should be assailed, the means for their defence shall be in their own hands.” Senator Charles Sumner’s “The Crime Against Kansas” speech likewise bristled at the notion that slavery opponents in Kansas should be disarmed of their Sharps rifles by the proslavery government: “Never was this efficient weapon more needed in just self defence, than now in Kansas, and at least one article in our National Constitution must be blotted out, before the complete right to it can in any way be impeached.” Thomas Cooley, a longtime Michigan Supreme Court Justice, similarly wrote that “[t]he right declared was meant to be a strong moral check against the usurpation and arbitrary powers of rulers, and as necessary and efficient means of regaining rights when temporarily overturned by usurpation.”
Additional examples abound, some of which are collected in my law review article. But there’s no need to belabor the point: in addition to enabling personal self-defense, the Second Amendment exists as a last-resort check on government power, a failsafe to enable collective defense in the event a tyrant or foreign invader ever usurps our constitutional order. There can be no historical tradition of the government violating the privacy of gun owners when one of the Second Amendment’s main purposes was to be a “doomsday provision” for the People to protect themselves from a tyrannical government.
b. Addressing the ways gun owner privacy has traditionally been allowed to be limited.
To be sure, like all rights the Second Amendment isn’t absolute, and in some instances the government does have the ability to intrude on the privacy of gun owners. For example, early colonial “muster” laws required men of militia age to present their arms for inspection. But these laws, besides applying only to members of the militia, didn’t constitute an accounting of every arm those militia members owned in the way open-ended digital record retention may enable; rather, they ensured each militia member was sufficiently armed so if called upon, they could serve the collective defense.
As another example, some laws existed in the Nineteenth Century allowing for the taxation of certain types of weapons, which by implication would require disclosing the ownership of those weapons to the government. But these laws most often taxed weapons only if they were publicly carried, not merely if they were possessed in the home ($1.25 tax on pistols and bowie knives if they were carried in public that year, though pistols used for mustering were exempted).
Moreover, many of these laws were also racist and existed to target newly freed black Americans. After the Civil War, many southern territories under reconstruction adopted “Black Codes,” which aimed to keep newly freed former slaves repressed, often with the assistance of the Ku Klux Klan. Strategic disarmament of Black Americans was part of this nefarious project, as even President Grant complained to Congress that the Klan’s objectives were, “by force and terror, to prevent all political action not in accord with the views of the members, to deprive colored citizens of the right to bear arms . . . and to reduce the colored people to a condition closely akin to that of slavery.”
As Professor Nicholas Johnson writes:
In 1866, the Second Freedman’s Bureau Act explicitly guaranteed to freed slaves “the constitutional right to bear arms” as a block against the racist gun prohibitions in the Black Codes. The Freedman’s Bureau Act also charged the occupying army with protecting the freedmen’s individual rights, including the right to arms.
Union Army officers and Freedmen’s Bureau agents worked to protect Blacks’ right to arms for self-defense and testified before Congress about the importance of vindicating this right. Black newspapers widely distributed the orders of the occupying army guaranteeing Blacks the constitutional right to arms for self-defense. Newly formed Black political organizations and state conventions filed numerous petitions with Congress pleading for protection of their right to arms for individual self-defense. In a May 1865 speech in New York, the great Black abolitionist Frederick Douglass lamented that “the Legislatures of the South can take from [the freedmen] the right to keep and bear arms” and that the work of the abolitionists was not finished until that right was enforceable against state governments.
These and other infringements on the basic rights of citizenship fueled the adoption of the Fourteenth Amendment. Senator Jacob Howard (R-MI) introduced the amendment by explaining that its “great object” was to “restrain the power of the states and compel them in all times to respect these great fundamental guarantees secured by the first eight amendments of the constitution, [including] the right to keep and bear arms.”
It’s thus no surprise that the Jim Crow era also saw a much more rapid adoption of taxes on certain weapons in the South. For instance, an 1867 Mississippi law assessed a tax of between five dollars and fifteen dollars on “every gun and pistol,” and if the tax was not paid, the Sheriff was obligated to seize that gun. The tax was considerable, ranging from $108 to $325 per gun in today’s dollars.
But the law only applied in Washington County, Mississippi, and not the whole state. According to the 1860 census, Washington County was made up of 92% enslaved people, and even to this day is still over 70% African American.
A final category of laws in the nineteenth century was akin to registration and thus implicated privacy concerns: provisions that applied to concealed carry permitting. Specifically, while many local governments restricted concealed carry, they allowed individuals to apply with the local government for permits that exempted them from that restriction.
But these laws likewise don’t justify any broad power of government to generally intrude on gun owner privacy. They only applied to those who wished to carry a firearm concealed; open carry was generally permissible throughout America in the Nineteenth Century, without any permit being necessary. And further, there was implied consent in surrendering some privacy even for those who did choose to carry concealed, because they took the affirmative step of deciding to apply for a permit with their local government. Historical concealed carry permitting laws are thus not analogous to the government forcing extended records retention periods that intrude on gun owner privacy.
c. Modern legal protections confirm privacy in gun-ownership is reasonably expected by gun owners.
In the modern era, the federal government itself has recognized gun owner privacy interests. In the 1980s, the Firearms Owners’ Protection Act forbade the federal government from keeping a registry directly linking firearms to their owners, a law still in effect today. Similarly, to prevent the establishment of a de facto registry of gun owners, the FBI is required by federal law to destroy National Instant Criminal Background Check System records of approved firearm purchasers within 24 hours of a “proceed” response. For delayed transactions, records must be purged within 90 days. Id.
Besides those federal protections, several states have also passed laws concerning gun owner privacy. Indiana’s “Disclosure of Firearm or Ammunition Information as a Condition of Employment” law prohibits both public and private employers from inquiring about or requiring disclosure of employees’ firearm ownership as a condition of employment, unless directly related to job duties. Florida prohibits physicians from asking about firearm ownership unless it is relevant to medical care or safety, and from entering such information into medical records if irrelevant, among other protections. Other states have similar laws.
Finally, many states restrict access to carry permit data or other gun owner records, often exempting them from public records laws to protect privacy. As noted earlier, even New Jersey, which maintains a handgun registry, shows some respect to privacy by exempting those records from public records disclosures.
Conclusion
I am, of course, only gently scratching the surface here, and a full examination of the intersection of the right to bear arms, the right to privacy, and to what degree the government’s intrusion on that right is permissible could be the subject of a lengthy law review article.
Such a project is certainly beyond the scope of this article, but even this very condensed summation of the relevant historical context shows that Americans have always had the implicit right to keep their status as a gun owner confidential, often even from the federal government itself. That right has been subject only to narrow exceptions. States have increasingly protected this right in the modern era, further entrenching a reasonable expectation of privacy among gun owners.
New Jersey’s demand for gun store sales records of GLOCK handguns for the last ten years is an outrageous attack on privacy in gun ownership, and antithetical to the Second Amendment.
Kostas Moros is Director of Legal Research and Education for the Second Amendment Foundation.