Analysis of the 2005 anti-gun central registry bill, HB 1209
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Presented as privacy protection for gun owners and pistol permit holders, HB 1209 is deceptively entitled, “an Act to provide for limited confidentiality of certain firearms information.” However, the real effect of this legislation is to provide for the establishment of an instantly accessible central registry of concealed pistol permit holders without ensuring that such a registry would not be abused.
The bill begins by strictly prohibiting any kind of central registry. Then it specifically exempts law-enforcement from this prohibition. It then states that law-enforcement may use the database in the physical presence of a permit holder. However, nowhere does the bill prohibit an officer from accessing the database at any time.
Let's take a look at the bill, point by point.
Perhaps the most significant part of HB 1209 is found in Section 3, which repeals the law prohibiting a pistol permit police-radio database (SDCL 23-7-8.5).
Section 1 positively prohibits any list, record, or registry of privately owned firearms, as well as any list of firearms owners or pistol permit holders. This prohibition is so complete and absolute that if it were to be strictly enforced, a private gun collector would not even be allowed to keep a record of the privately owned firearms in his own collection.
Section 2 follows with six subdivisions listing exceptions to this prohibition. Subdivisions (1) through (3) exempt the keeping of criminal records. Subdivision (4) exempts the records that firearms dealers are required to keep. Subdivision (6) exempts the Secretary of State in the normal operation of the current concealed pistol permit system.
It is subdivision (5) of Section 2 which completely opens the door to an instantly accessible central registry. This provision explicitly exempts all on-duty law-enforcement from the database prohibitions of Section 1 in conducting routine verification of the validity of a permit to carry a concealed pistol.
Virtually any use of this database by any on-duty law-enforcement officer, for any reason and at any time, could reasonably be related to “routine verification of the validity of a permit.” This fact is recognized even by proponents of the bill, and as a result, Sections 4 and 5 were added for the stated purpose of safeguarding the system against possible abuse.
However, Section 4 actually places no restrictions on the use of the central registry allowed in Section 2, subdivision (5). It simply reiterates that the database may be used to validate a permit which is presented or declared to exist.
Section 4 states:
“The provisions of this Act do not restrict any law enforcement officer in the performance of any official duty if the law enforcement officer is in the immediate physical presence of a permit holder who has either presented a permit to the officer or declared to the officer that he or she is a permit holder.”
In other words, if the officer is in the presence of a person who claims to be a permit holder, that officer is not in any way restricted by this proposed law. It could also be truly stated that no officer is restricted at any time by the provisions of this act. Note that Section 4 places absolutely no positive restrictions upon when and how the database may be accessed. In fact, neither does any other section of the bill.
Section 5 states:
“The provisions of this Act do specifically prohibit any law enforcement officer from retaining any notes, data, or pieces of information, either collectively or individually, unless the retention of such notes, data, or pieces of information is pertinent to a specific ongoing investigation or prosecution.”
Section 5 offers the only positive restriction, but this restriction is only upon the retention of notes, data, or pieces of information obtained from the database. Note that Section 5 says nothing about how and when the database may legally be accessed.
Some politicians and lobbyists are claiming that HB 1209 was only designed to protect your rights and your privacy. In actuality, it legalizes an instantly accessible central registry which profiles permit holders and throws the door wide open to abuse.