I saw a news story, maybe here, saying a bill has been proposed to put tracking devices in new guns. I don’t see that standing because police need a warrant to put a tracker on a car or to bug your phone. It would also be a direct violation of the fourth(?) amendment. The court has to order an ankle monitor to track ou. I don’t see the difference.
Government agencies and more than a few local law enforcement agencies have been getting away with blatantly violating the 4th Amendment along with 1A, 2A, 5A, 6A, etc. for the past couple of decades. Wouldn’t be so sure that they don’t get away with this proposed violation as well.
I’ve seen a few headlines popping up about this. Here’s one referring to a proposed bill in Maryland.
Fact Check Team: Maryland state legislature considering new gun tracking technology | WRGT (dayton247now.com)
@William191 you raise an interesting legal question and one that goes beyond just firearms. Data is collected on us at a routine and accelerating pace. It’s collected by both government and non-government entities, and NGOs can (and have) provided that data to government agencies when asked. Your phone company logs of who you talk to, and your phone keeps a fairly consistent record of your whereabouts, as do GPS enabled devices like watches or navigation devices. Your credit cards keep track of your purchases, your computer tracks your web browsing, and traffic cameras record your license plate when you drive.
Where the legal limit of all this surveillance? Does the 4th Amendment prevent the collection of data, or merely the use of that data in court? Does it apply only to government agencies, or could it be applied to private organizations that can supply this data to government agencies?
A law requiring trackers on firearms would probably have its day in court. I have to confess I’d be a bit nervous about the outcome of that case.
The constitution has no room in their library. The sooner we come to grips with that fact, the sooner we can form a new strategy. The old one is, clearly, NOT WORKING!
So far Brandon has bypassed every constitutional law that exists, with 2 years left, I won’t be surprised if the U.S. flag is removed from the White House. Yet we will still do nothing!
So I’ve resigned myself to watching Rome burn!
Invasion from land, sea and air. The U.S. citizen is powerless.
At least we have ringside seats:/
As to the constitutionality of these trackers, I can envision an argument along these lines:
A firearm manufacturer–with or without government compulsion–engineers a tracking device in every weapon they produce. The presence of said tracking is made widely known to the public in general, and to potential customers in specific.
As part of the process of legally purchasing your new firearm you sign a number of required forms; federal background check at least, maybe some state and local forms as well. Each of these forms now includes a paragraph to the effect that you, the purchaser, understand and acknowledge the presence and purpose of the tracking device, that you promise not to knowingly or deliberately take any action to defeat or impede the operation of the device, and that you agree to collection of the data produced by the device by any and all authorized entities operating in accordance with currently established legal guidelines. (An End User License Agreement [EULA], if you will.)
There you go, no constitutional conflicts. You have voluntarily given permission for the continuous “search and seizure” of all data generated by the tracking device, effectively signing away any constitutional protections which may have existed. You’ll probably also be charged a fee or tax to defray the cost of data collection analysis.
Once the appropriate legislation is properly in place there would be no legal argument against it. Once again, even with the best of intentions, the law would place a burden on law abiding citizens while simultaneously having little or no effect on criminal actors. Except, maybe, for making the price of black market “clean guns” skyrocket.
In this eventuality the real question becomes: What happens to the hundreds of millions of “un-tagged” guns already in circulation? Registration? Outright confiscation? A requirement to take them to an Authorized Service Center for installation of a tracking chip? I can only guess at what might be done. I can only be certain that whatever is done will be bad for the people.
The legislation itself would be unconstitutional as it requires people to submit to unwarranted searches in order to exercise their right to keep and bear arms.
What would this bill look like if the technology were removed? Would I be required to keep law enforcement aware of the exact location of my firearms? Would ATF be able to enter my home at any point to ensure my firearms are present?
It seems to me the legal issues are not so much with the technology required on the firearms, but what that technology is intended to accomplish (or capable of doing). If it’s an unlawful requirement without the tracker, then it’s unlawful with the tracker.
Flip that: if there’s no purpose to the tracker, then why require it?
Under my reasoning it isn’t an unwarranted search, it’s a voluntary search, and as such not unconstitutional. One may at any time agree to the search and seizure of one’s property. Doing so negates any future claim of the search being “illegal” or “warrantless”.
I’m sure that if you ever watch the police procedural shows on TV you’ve encountered the scene where a suspect signs the so-called “Miranda Waiver”, a document which states that the suspect acknowledges being advised of their Miranda rights and agrees to speak with the police without an attorney present. The suspect can’t at some later date claim the questioning was illegal because he didn’t have an attorney present during questioning.
It’s unlawful only if done without the subject’s knowledge and consent. Voluntary consent changes everything.
I know that the constitution guarantees our right to keep and bear arms, however it in no way requires us to do so. Therefore, the act of acquiring and/or bearing arms is a voluntary action in which we may or may not chose to engage. By signing the form 4473 at the dealer we are voluntarily consenting to a government agency search of certain aspects of our life. You can’t then claim “warrantless search” afterwards.
The legal issue isn’t about the tracker or its purpose. The legal issue is whether or not the requirement of the devices places an undue burden on the exercise of a constitutionally protected activity.
I’m not a lawyer but requiring someone to “voluntarily” waive a constitutional right in order to exercise another constitutional right seems to be a clear violation of rights to me. One of many reasons I believe the NFA is unconstitutional.
If your proposal was allowed to stand the government might as well stop pretending they are following the constitution at all and just send out the enforcement squads to tell us all what we have to do next.
Indeed I can. This is why so many attorneys have advised against allowing ATF to enter your home without a warrant to inspect your firearms. There is no implied or explicit waiver of 4th Amendment protections when a law abiding citizen purchases a legal firearm.
All I know is that I’m not going to buy a weapon with one in it period. I’m pretty happy with my small collection I have and only want a cpl AR style pistols/rifles and I’ll be as happy as I could be. Damn that boating accident thing, ya’know.
Let me be clear: I am NOT proposing that any of this be enacted. I am merely playing devil’s advocate by imagining an argument which may be put forward by someone who does support such legislation.
I think the hard part is getting the criminals to carry them. Sorry if that was already mentioned.
Forgive me, please, for not being clear enough.
In your scenario of the ATF on the doorstep, if they have no warrant then you are not required to let them in. However, if you say “Sure. Come on in,” then you’ll have a hard time arguing later that the search was illegal because they didn’t have a warrant. They asked for entrance, you said OK, therefore you have waived the necessity of their acquiring a warrant. You could have asserted your rights and forced them to convince a judge to sign a warrant, but you didn’t. You voluntarily granted them access. You can’t change your mind afterward and claim that they entered your property without a warrant AND against your will or without your permission. The permission is not implied in this case, it is explicitly granted.
Essentially, the purpose of a warrant is to allow government agents to override an individual’s rights without their consent. I suppose my whole argument boils down to the idea that a person can agree to set aside a specific right when asked to do so without being able to claim at a later time that even though they gave consent, their rights were somehow violated.
It can be argued (and I think you are) that the entire scheme of requiring trackers is a violation of rights. That may or may not be true, but that discussion should take place before the law is created rather than at the gun counter, which is where I was discussing the consent issue. I think my argument still stands as something a supporter might say to sway votes and public opinion in favor of such legislation.
A anti self defense supporter might try to use your line of argument to try and justify forcing firearm purchasers to have to submit to being tracked. The counter argument would be - Does everyone who wants to purchase a phone in order to exercise their right to free speech need to sign a document that gives the government the right to track their movements wherever they go? I think most people would be quite upset if the government formally proposed this. It would be a blatant attempt to stifle free speech and is a clear violation of the 1st, 4th and likely other Amendments not to mention a bunch of federal laws.
Granted the government already illegally tracks our movements and speech through our phones but they at least occasionally get their wrists slapped for it because everyone knows they are violating a bunch of legally protected rights by doing so.
Which is all I was trying to say.
Without government compulsion making this uniform across all manufacturers, said manufacturer would likely be out of business sooner than later
A tracker on a gun rests on the assumption that the owner will eventually commit a crime with it, and therefore, government should track the gun. Vote those bozos out of office.