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As per the article regarding Hawaii placing its gun owners in a database and some of the below quoted text from it, I could see this being a growing trend on a state by state basis.

Question

Could any of this technically be a violation of any U.S. citizens' rights in any way, or conflict with previously issued laws?

The Goods

That database, which is called the "Rap Back" system, is operated by the FBI and would notify police when a gun owner is arrested for a crime anywhere in the United States.

This will allow county police departments in Hawaii to evaluate whether the firearm owner may continue to legally possess and own firearms," the Hawaii governor's office said in a statement.

"This is about our community's safety and responsible gun ownership," Gov. David Ige in a statement. "This system will better enable our law enforcement agencies to ensure the security of all Hawaii residents and visitors to our islands."

The Bads

The NRA expressed its displeasure with the new state law tweeting: "Exercising constitutional rights in #Hawaii now gets you entered into a federal watchlist, er, database."

During the public comment process regarding the bill, opponent Quentin Kealoha asked: "Why are law abiding citizens exercising their constitutional right being entered into a criminal database? Would you enter people exercising their right to free speech into a criminal database?"

Additional

The third new law requires gun owners to surrender their firearms and ammunition to the police if they've been disqualified to possess the weapons "due to a diagnosis of having a significant behavioral, emotional, or mental disorder, or due to emergency or involuntary admission to a psychiatric facility."

If the person does not voluntarily give up their arms, the police chief has permission to seize the weapons.

source

Rick Smith
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The 'Bernie Sanders' Party
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    "Arrested for crime": this may theoretically be a legal hurdle. "Innocent until presumed guilty" and all. – user4012 Jun 26 '16 at 00:23
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    "Exercising your constitutional rights" of, for example, getting elected to the US Congress also "puts you into a federal watchlist, er, database". Talk about strawmans... (I would have written about registering to vote, but I do not know who owns those database -apparently federal DB are evil but state or county databases are good-). Additionally, where does the statement that it is a "criminal database" come from? – SJuan76 Jun 27 '16 at 00:16
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    Possibly law.se is better for this. Human rights is an interesting choice of tag. related related –  May 16 '17 at 22:00
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    I don't believe there is any guaranteed right to not be in a database, so whether or not it violates anything else would require a judge's decision. –  May 16 '17 at 22:01
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    @blip Ninth and Tenth Amendment. The enumerated rights are not the only rights of the people that are recognized. – Drunk Cynic May 17 '17 at 13:30
  • The CNN article did not actually provide a reference for the Hawaiian laws that it discussed. Does anybody know where those might actually be found? – Texas Red Jun 01 '18 at 23:49
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    The question is very much about governments, policies and political processes and is within-scope for this venue. Please re-open. From the on-topic vs. off-topic page in the help center: "Questions seeking to understand the rules and processes by which policy is made in various legislatures or ruling bodies (inside and outside of the United States!) are wholly on topic." This is a question about how the making of one law interacts with previously existing law, and seems to me should be allowed explicitly under this rule. – pygosceles Aug 15 '19 at 19:42
  • Can you elaborate on what you mean by "U.S. citizens' rights". It would help if you can direct to the specific source of said right so we can narrow the scope of discussion. – QuantumWalnut Nov 28 '22 at 02:28
  • The question was "Could any of this technically be a violation of any U.S. citizens' rights in any way, or conflict with previously issued laws?" and I'm satisfied with the provided answer which is accepted so I've moved on from this topic. The interpretation of the question should be done in the context of all words in the question rather than just one portion of those words though. You are free to always open a meta discussion on your scope narrowing concerns on questions with an already accepted answer though, they can answer with accuracy @QuantumWalnut – The 'Bernie Sanders' Party Nov 28 '22 at 02:46

3 Answers3

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Per the Firearm Owner's Protection Act,

No such rule or regulation prescribed after the date of the enactment of the Firearms Owners' Protection Act may require that records required to be maintained under this chapter or any portion of the contents of such records, be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or any political subdivision thereof, nor that any system of registration of firearms, firearms owners, or firearms transactions or dispositions be established.

Sure seems illegal to me.

indigochild
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John Wu
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  • Nice find and +1... This answers it I think for those with the licenses obtained on or after the Firearm Owners' Protection Act of 1986, correct? O see it states "removal of the requirement for record keeping on sales of non-armor-piercing ammunition, and federal protection of transportation of firearms through states where possession of those firearms would otherwise be illegal" in the Firearm Owners' Protection Act – The 'Bernie Sanders' Party May 17 '17 at 01:01
  • It is a good find. I'm wondering how well this answers the question though. The OP asks whether any rights are violated, but the answer doesn't mention anything about rights. I don't think it's a big leap, but it would be improved by connecting the dots a bit more. – indigochild May 17 '17 at 01:45
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    When something is in violation of the law, it is implicitly in violation of your right to due process. – John Wu May 17 '17 at 01:49
  • @JohnWu - Yeah, I'm on board with that. But it would be better if it were explicitly stated in the answer, rather than leaving the reader to draw that connection. – indigochild May 17 '17 at 02:00
  • This is a good find. However, it looks like ATF, themselves, are actually in violation of this wording: https://en.wikipedia.org/wiki/Firearm_Owners_Protection_Act#Registry_prohibition So...I guess that raises more quesitons than answers. Is this law not enforced? Was it superseded? Something else? –  May 17 '17 at 04:41
  • @user1530: It looks like those records kept by the ATF were records generated by the sale of liscensed dealers under the National Firearms Act (NFA) (i.e. anyone selling guns in a gun shop) who are required to document every transaction. There are legal ways for people to transfer the gun after purchase in this manner without an NFA paperwork, but specifics of this vary from state to state and only if it is from two residents of the same state. The rest are of criminal evidence in which a gun is involved (either as the weapon used in a crime or stolen and reported by a legal owner). – hszmv Aug 16 '19 at 15:25
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In the United States, weapon ownership is a constitutional right (second amendment). The federal government cannot remove a person's right to own a gun without due process. The fourteenth amendment extended that to include state governments. This was only officially recognized in 2010 for the second amendment, although it was previously recognized for other rights as early as 1925 or even 1897. That is called incorporation.

"due to a diagnosis of having a significant behavioral, emotional, or mental disorder, or due to emergency or involuntary admission to a psychiatric facility."

The question that arises is if "diagnosis" is due process. The more normal process would be to have a fitness hearing. It is of course easier to get a diagnosis or admission than a fitness hearing decision. It's also a bit unclear about what they mean here. If they hold a fitness hearing and use the diagnosis or admission decision from that, that would almost certainly be due process (leaving wiggle room for weird edge cases).

A similar question exists over whether they can change someone's gun ownership status based just on an arrest. They might have to wait for a conviction. In some circumstances, they might be able to suspend someone's right to own firearms during the course of a court case.

It's worth noting that most of this has not been tested in court. As such, a court could rule that arrest, diagnosis, or admission is in fact sufficient to meet the due process requirement. Until the Supreme Court gives a definitive answer, we won't be able to say for certain one way or the other.

Brythan
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  • +1 for the information and helping me learn about some of the referenced material you provided. I see that as far as taking guns away your answer helps clarify, as well as for changing the status of the gun ownership. Also about the incorporation and how that was fed level only until a certain point, etc. Good info!! – The 'Bernie Sanders' Party May 17 '17 at 02:10
  • It's not clear that this law would automatically take away someone's guns if they were arrested - the police or other authorities may have their own due-process inquiries to decide if gun ownership should be rescinded. It's established that in some circumstances gun ownership can be prevented without a criminal conviction. – Stuart F Dec 05 '22 at 16:17
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So what it looks like is happening is that Hawaii police are now allowed to run the names of gun owners who reside in the State of Hawaii against the FBI's Rap Back system, which isn't a database of Gun Owners but rather a tool that will aggregate all publicly available court records and will return any arrests or convictions of felony or misdemeanor crimes where the individual was convicted.

Rap Back is used by many different agencies and private companies to check against an employees and they may get an alert as soon as something changes. It appears that the new law would allow Hawaii to include updates on citizens whom exercise 2nd amendment rights.

I'm not familiar with the process, but as Rap Back is used to check employee's criminal history, I suspect there may need to be consent documentation to put an employee on the list, or put the name into RAP BACK as part of a search for an active investigation by Law Enforcement. There could be some legal questions into if the government should require consent to exercise a right or run names when there is no reasonable suspicion of a crime having been committed, but as other answers say, that's not been brought before any courts.

hszmv
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