As NRA v. Reno and long-gun registration cases demonstrate, the problem with the registration ban in Toomey-Manchin (and the parallel language in the instant-check statute) is that it has very broad language (“any system of registration of firearms, firearms owners, or firearms transactions or dispositions”) that the courts construe very narrowly, by acting as if “any system of registration” only applies to a system which registers everyone or everything.
Now look at how Manchin-Toomey makes things worse:
(c) Prohibition of National Gun Registry.-Section 923 of title 18, United States Code, is amended by adding at the end the following:
(m) The Attorney General may not consolidate or centralize the records of the-
(1) acquisition or disposition of firearms, or any portion thereof, maintained by-
(A) a person with a valid, current license under this chapter;
(B) an unlicensed transferor under section 922(t); or
(2) possession or ownership of a firearm, maintained by any medical or health insurance entity.
Now, we have a specific answer to the judicial question “What is gun registration?” The answer provided by Manchin-Toomey is that gun registration is only something which is done by “the Attorney General.” It is something that only involves the attorney general acquiring particular types of records.
So now suppose that a few months after Manchin-Toomey becomes law, the Department of Homeland Security begins collecting all state gun-registration records, and all state records of persons with concealed-carry permits. Just this month, it was revealed that the Department of Homeland Security has been working with the Missouri Department of Revenue to obtain electronic access to its permit list. In addition, the federal Social Security Administration, in a joint project with the ATF, had requested and been sent a complete list of all of Missouri’s concealed-carry-permit holders. The data sharing violated Missouri state law, and the revelations led to the resignation of Missouri’s director of the Department of Revenue.
When people complain that DHS (or the Social Security Administration) is violating the ban on federal gun registration, DHS and Social Security can reply, accurately, that they are doing no such thing. Manchin-Toomey specifically defines “national gun registry” as only something which is under the control of the attorney general, which Homeland Security and Social Security are not.
Further, Manchin-Toomey says that the only kinds of records which could constitute a “national gun registry” are the records which are maintained by gun sellers or records maintained by medical or health insurance entities. DHS and Social Security, in contrast, would be collecting only records that belong to state governments.
If Manchin-Toomey had gone through the normal committee process with earings, the problem might have been pointed out and fixed, so that the entire federal government was expressly prohibited from compiling gun registrations lists from any source, rather than just prohibiting the attorney general from compiling just two particular types of documents.
Or, to take another approach, suppose that Eric Holder decides to repeal the Ashcroft regulation, and begins keeping instant-check records for three years. He won’t be violating Manchin-Toomey, because instant check records of gun sale approvals by the FBI aren’t records that belong to gun sellers or health-insurance entities — they already belong to the FBI.
The Problems of Toomey-Manchin | National Review Online