Court, Legislative Protections Sought for Gunowner Privacy
March 1, 2003
by Joseph P. Tartaro
Executive Editor
Americans are almost unanimous supporters of the right to privacy, except when it comes to guns. That’s one of the key areas where the privacy vote gets split.
Gunowners view their firearms and firearms rights as both a property issue and a privacy issue. They tend to believe that their legal ownership and use of firearms should be nobody’s business but their own. Indeed, the basic concept of firearms ownership is solidly linked to anonymity. That is one of the reasons why registration schemes are so adamantly opposed. Lists of gunowners not only make government confiscation possible, but provide a road map for criminals in search of arms, as well as gossip for neighbors.
One of the social benefits of widespread anonymous gun ownership is that the guns some people own provide for everyone else a protective barrier against criminals when the evil-doers are not sure who is armed and who is not.
But some people—especially anti-gun politicians and media—think that there should be no right to privacy when it comes to firearms ownership. If those folks had their way, all gunowners would not only be the subject of lists, but should be forced to carry a sign or wear distinctive clothing to be sure everyone else knows they own guns.
City Lawsuits
One of the offshoots of the series of municipal and county lawsuits against the gun industry is a battle over identifying gunowners. When the city of Chicago was allowed to pursue their suit against the firearms industry, including licensed gun dealers located outside the city, the city’s lawyers demanded the names of gun shops, their customers and crime gun trace information from the Bureau of Alcohol, Tobacco and Firearms (ATF).
ATF refused to release all of the information Chicago asked for, and the courts have generally upheld the firearms agency’s arguments. Chicago, believing such information will help them prove that government-regulated firearms manufacturers and marketers are somehow responsible for the costs of the urban mayhem wrought by illegally-armed criminals, has appealed those denials to the US Supreme Court.
And a ruling seems likely soon. The Supreme Court is scheduled to hear arguments on March 4 on how much information the ATF should be required to release about the 200,000 firearm traces conducted annually, in which police trace a gun used in a crime to determine who made it, sold it and bought it.
As of now, ATF releases the make, model and serial numbers of the guns after a waiting period to safeguard ongoing investigations, but it does not identify the gun’s buyers and sellers. The ATF also tracks people who buy several guns in a week but also refuses to release those names.
The 7th Circuit Court of Appeals backed the city, but the Bush Administration, backed by an unusual alliance of the National Rifle Association and the 300,000-member Fraternal Order of Police, appealed to the Supreme Court. The White House and its supporters contend the names of buyers and sellers should remain confidential to protect crime investigations and gunowners’ privacy. Opponents say releasing the records would let the public know whether only a few gun dealers are responsible for selling most of the guns found at crime sites.
But even before the Supreme Court rules on the issue, some Republican congressmen have added a provision in the mammoth spending bill that would keep the government from releasing the names of gun shops and gunowners whose firearms were used in crimes.
Congressional Proposal
The provision, written by Rep. George Nethercutt (R-WA) as HJR-2, was a part of the House version of the spending bill for Treasury and postal operations and made it into the final $397.4 billion package for the fiscal year ending Sept. 30. It prevents ATF from spending money to release the data.
ATF spokesman Andrew Lluberes said the agency is looking at the congressional provision to see if it has to stop giving out any data about gun traces, including the makes, models and serial numbers.
“This data must remain protected to ensure the integrity of criminal investigations, but unfortunately a recent US Circuit Court decision could compel law enforcement agencies to disclose this data, contrary to Freedom of Information Act law, privacy protections and Supreme Court precedent in this area,” Nethercutt said. “This amendment is the only alternative to jeopardizing thousands of criminal cases.”
The debate over gunowner privacy is not limited to Washington, DC. A Texas state lawmaker says she is trying to fight crime with her legislation to restrict public access to information on people licensed to carry concealed handguns. Her opponents offer the thin counter-argument that the proposal would result in hiding the identities of those who are packing heat.
Rep. Suzanna Gratia Hupp (R-Lampasas) said she wants to change current law because it allows a would-be thief to request concealed handgun license information on each individual living in an area to find out who has a concealed handgun license.
“Currently, if a bad guy is determining which home on a particular block he wants to rob, all he has to do is request the information and he knows which houses have guns that have a valuable resale,” Hupp said.
She said she also is concerned by the fact the Texas Department of Public Safety (DPS) is required to notify license holders whenever someone requests their information. She said this could endanger women who are trying to find out whether an abusive boyfriend or husband has a concealed handgun license.
“I’m surprised that anyone would be against a woman’s personal privacy and her ability to defend herself from a violent ex-boyfriend or husband,” Hupp said.
Anti-gun organizations in Texas oppose Hupp’s bill.
Is Privacy Hiding?
Nina Butts, a spokeswoman for an anti-gun group, said there is no reason for a concealed handgun licensee’s information to be hidden from the public and the media.
“What do these people have to hide? Why are they scared? What is their secret?” Butts said.
Hupp’s bill would end public access to certain DPS records.
The 1995 law allows the public to have access to information about licensed concealed handgun holders. A licensee’s name, date of birth, gender, race and ZIP code are subject to disclosure, and the licensee is notified by the department with the name of the person or agency that requests the information.
Jim Dark, executive director of the Texas State Rifle Association, said he agrees with Hupp that guns are common items sought by criminals for resale.
“Guns are one of the most easily pilfered items that are out there,” Dark said.
Rep. Lon Burnam (D-Fort Worth) said this legislation is one of many bills that have been filed to restrict access to open records that he opposes.
“It looks like we’re going to be dealing with a lot of attempts this session to close down parameters around open records,” Burnam said. “I have a gut negative reaction to this bill because of my general philosophical bias on open records.”
There are 221,792 active licenses in the state, with 33,504 in Harris County as of Jan. 2. An individual can access information by making a request with a name and ZIP code of the licensee, with a $5 fee for each request.
The issue has come up in the past two sessions, with bills filed by Hupp. Last session, the bill died in the House Calendars Committee.
Hupp and Butts agreed that the legislation has a better chance of survival this session because of the Republican-controlled Legislature.
While it might seem to some that the gun rights battle is off the radar right now, down in the legislative trenches of federal and state government, the fight goes on, and gunowner privacy is currently on center stage. The outcome in the courts may be uncertain, but Congress and state legislatures can and should stop up the mouse holes.
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