Andrew Napolitano: US Using Gun Transfer Forms to Violate Free Speech and Privacy

by | Sep 22, 2014

RPI Advisory Board Member Andrew Napolitano, speaking with Elisabeth Hasselbeck on Fox News regarding race and ethnicity questions people are required to answer to purchase a gun from a US government-licensed firearms dealer, explained that mandating answering questions on any form whatsoever violates speech and privacy rights. In short, Napolitano concludes, “It’s none of the government’s business who has guns.”

Napolitano, a former New Jersey state judge, explains that the right to keep and bear arms “is an extension of the natural right to defend yourself.”

In addition to violating privacy rights and the gun rights recognized in the Second Amendment, Napolitano details how the required completion of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) form 4473 violates the right of speech recognized in the First Amendment. Napolitano says:

This is called forced speech. The First Amendment says Congress can’t infringe speech. The courts have interpreted that to mean Congress can’t also compel you to speak. So, the government can’t say, “Hey, Hasselbeck, what’s your race, what’s your ethnicity, and why do you want that gun?” The government doesn’t have the lawful, moral authority to do that. But, yet, that is what it is trying to do with these forms.

Watch the complete interview here:

While not addressed by Napolitano explicitly in the Fox News interview, the mandated completion of ATF form 4473 also violates the Fifth Amendment-recognized right against self-incrimination by making individuals provide information about themselves to the US government in order to complete a purchase.

Additionally, the required answering of the form’s questions is a violation of the Tenth Amendment given that the Constitution nowhere delegates to the US government the power to impose the mandate.

Because of the ATF form 4473 mandate, the US government respects some constitutional rights less for a person who tries to buy a gun from a US government-licensed firearms dealer than for a person who the government alleges committed a crime. The alleged criminal can assert and often have respected through the entire criminal investigation and prosecution process the right to remain silent.

Rep. Diane Black (R-TN) introduced in the US House of Representatives on Thursday the FIREARM Act that seeks to prevent the US government from requiring “any person to disclose the race or ethnicity of the person in connection with the transfer of a firearm to the person.”

Black’s legislation only eliminates the mandate to answer the race and ethnicity questions. Therefore, even should the bill become law, people will still be required to answer many other questions in order to buy a gun from a US government-licensed firearms dealer. That means gun buyers will be required to submit to the violation of their rights protected under the First, Second, Fifth, and Tenth Amendments. In fact, a gun buyer would still be subject to 24 personal questions, plus a request for the individual’s social security number that the form says is “optional” but “will help prevent misidentification.” Among the 24 questions, buyers are required to answer whether they use illegal drugs, have been committed to a mental institution, have been convicted of a domestic violence misdemeanor, or have been dishonorably discharged from the US military.

On top of purchasers’ mandated answers, sellers would, even with Black’s legislation becoming law, still be required to provide on the form additional information about each buyer and the particular guns purchased. This information includes a description of identification documents provided as well as a detailed inventory, including even serial numbers, of all firearms purchased.

The collection of ATF form 4473 information in violation of rights protected under at least four amendments of the Bill of Rights is particularly disturbing in the age of US government mass spying. People who fill out the form should also be concerned about the National Rifle Association-supported effort to expand both government databases of people’s private information and legal prohibitions on who may purchase and own guns.

For the time being, people can still under the “gun show loophole” buy guns, at least in some parts of the US, from individuals not licensed by the US government as firearms dealers and thus without completing ATF form 4473. That, though, pretty much means not buying from the local gun store that is required to be licensed as a precondition of selling guns. It sure is disturbing that you need to use a “loophole” to protect yourself from the US government violating the rights the Constitution requires the government to respect.


  • Adam Dick

    Adam worked from 2003 through 2013 as a legislative aide for Rep. Ron Paul. Previously, he was a member of the Wisconsin State Board of Elections, a co-manager of Ed Thompson's 2002 Wisconsin governor campaign, and a lawyer in New York and Connecticut.

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