Background checks - controversy

[JimDandy]

You propose a change in law that:
1)Is demonstrably outside the constitutional powers of the national government.
2)Addresses a "problem" that does not exist.
3)Purports to arise from incidents which it would not prevent.
4)Expands on a system that is currently violated with impunity.

1) It is not demonstrably outside the constitutional powers of the Federal Government. To demonstrate it is outside those powers, one would have to point to it being judged unconstitutional under legal challenge, or something similar being so held. In point of fact, something similar has been upheld time and again. It may be your opinion, an opinion many share, but that is not the same as demonstrably unconstitutional.

2) Criminals getting guns in legal(for the seller) face to face transactions is a problem that DOES exist. The fact that they aren't using these guns for spree killing when they lose their mental faculties does not prove a lack of problem.

3) Kochman may be responding to the spree shooting model, however I have not. Those crimes account for a blessedly small section of violence using firearms.

4) No system will ever be omnipotent. A system that does the most it can, while intruding as little as possible is a goal worth aiming for, however.

[JimDandy]

I set forth those hypothetical scenarios for the purpose of illustrating the difference between an act undertaken knowingly and one not taken knowingly.

Knowledge and intent are common elements in criminal code.

Yeah, But that got me curious about that. I tend to tangent easily. I got in trouble once in school looking up a word, then kept reading the page, and blurted out "What in the world is a gonad?" in class when I got to one I wasn't familiar with.

I suppose the answer to my question would be some version of Depends on how he was tried, juvenile, adult, but I asked to be sure, and satisfy curiosity.

[zukiphile]

I suppose the answer to my question would be some version of Depends on how he was tried, juvenile, adult, but I asked to be sure, and satisfy curiosity

I appreciate the curiosity, but I could not answer it has stated because it was not an element of or pertinent to the difference between knowingly committing the act and doing so not knowing that the recipient was a prohibited person.

Originally Posted by JD

1) It is not demonstrably outside the constitutional powers of the Federal Government. To demonstrate it is outside those powers, one would have to point to it being judged unconstitutional under legal challenge, or something similar being so held. In point of fact, something similar has been upheld time and again. It may be your opinion, an opinion many share, but that is not the same as demonstrably unconstitutional.

I do not agree entirely. This harkens back to our discussions of the commerce clause in this thread. It should not take nine distinguished justices to define "interstate" and "commerce", or misdefine those terms.

No universal background check has previously been found constitutional or withstood constitutional challenge. Any such system that infringes the right described in the Second Amendment should run afoul of that amendment.

Originally Posted by JD

2) Criminals getting guns in legal(for the seller) face to face transactions is a problem that DOES exist. The fact that they aren't using these guns for spree killing when they lose their mental faculties does not prove a lack of problem.

A law may address the real problem, but addressing a real problem does not establish constitutional legitimacy.

Originally Posted by JD

3) Kochman may be responding to the spree shooting model, however I have not. Those crimes account for a blessedly small section of violence using firearms.

Emphasis added. I agree, and note that these rare events displace a disproportionately large volume in public policy discussion.

Originally Posted by JD

4) No system will ever be omnipotent. A system that does the most it can, while intruding as little as possible is a goal worth aiming for, however.

Emphasis added. The bolded portion is part of the problem with universal background checks.

[JimDandy]

I do not agree entirely. This harkens back to our discussions of the commerce clause in this thread. It should not take nine distinguished justices to define "interstate" and "commerce", or misdefine those terms.

No universal background check has previously been found constitutional or withstood constitutional challenge. Any such system that infringes the right described in the Second Amendment should run afoul of that amendment.

But the background check itself has been. I would not have objected to a characterization of Mr. Pfleuger's objection as personal belief it is outside the powers of the federal government. I objected to the characterization of it being "demonstrably" out implying precedent.

Originally Posted by JD
4) No system will ever be omnipotent. A system that does the most it can, while intruding as little as possible is a goal worth aiming for, however.

Emphasis added. The bolded portion is part of the problem with universal background checks.

Have you an idea for efficiently restricting the flow of firearms to prohibited persons that is less intrusive, yet still not defeated by a color copier and a pickpocket?

[zukiphile]

Originally Posted by JD

Have you an idea for efficiently restricting the flow of firearms to prohibited persons that is less intrusive, yet still not defeated by a color copier and a pickpocket?

Yes. I would make prohibited persons criminally culpable for receiving an item they are prohibited from possessing.

I believe this is already done.

[JimDandy]

Yes. I would make prohibited persons criminally culpable for receiving an item they are prohibited from possessing.

I believe this is already done.

And I believe you, and others have raised, as one objection, the premise that criminals do not follow the laws, so creating a law they won't follow will have no effect.

[zukiphile]

And I believe you, and others have raised, as one objection, the premise that criminals do not follow the laws, so creating a law they won't follow will have no effect.

Indeed. Creating a new law will likely have very little effect. Coupling that observation with the observation that a three party universal background check will become a significant administrative burden borne almost exclusively by individuals entitled to possess firearms under federal law succinctly explains why so many people here find universal background checks odious.

[JimDandy]

I challenge you to provide a provision of the federal Constitution or federal case law indicating that "encouraging the right thing" suffices as an independent basis for federal authority.

In that case, I direct you to Footnote 4, of the decision in United States v Carolene Products Co 304 U.S. 144 (1938) The birthplace of the standards of review. All three standards suggest the law must serve a government interest- While both that phraseology and "doing the right thing" are exceedingly vague, I believe encouraging its citizenry to do the right thing is a government interest.

[Kochman]

What boggles my mind is that some people act as though if it isn't explicitly in the COTUS, it's not ok.
Some things are implied/understood... the basis of law, through history, is pretty much to encourage the proper behavior or discourage improper behavior... that's why laws exist.

The COTUS is not a stand alone document.
Hell, to get passed, it had to have an explicit set of amendments right off the bat!

[JimDandy]

Indeed. Creating a new law will likely have very little effect.

Creating a new law may or may not have effect, based on the law being created.

However, to get back on point- You asserted criminalizing the possession of firearms to prohibited persons will restrict the flow of firearms to their hands. You then further asserted this is already so. I concede both those points.

I now ask you- if that is still happening- which I hope you would concede- the purpose is not being served, and it is not restricting the flow of firearms to prohibited persons. I feel that grants me leave to repeat my original question- Have you an idea to efficiently restrict the flow of firearms to prohibited persons?

[zukiphile]

Originally Posted by JD

In that case, I direct you to Footnote 4, of the decision in United States v Carolene Products Co 304 U.S. 144 (1938) The birthplace of the standards of review. All three standards suggest the law must serve a government interest- While both that phraseology and "doing the right thing" are exceedingly vague, I believe encouraging its citizenry to do the right thing is a government interest.

JD, you are correct that the term "governmental interest" will be found in the tests applied to determine the constitutionality of the challenged law. In the case of a fundamental liberty, here the right to keep and bear arms, that governmental interest must be compelling and the legislation involved must be narrowly tailored. Some decisions note that the burden imposed by the challenged legislation should be the "least burdensome".

Mere allegation of a governmental interest in itself is not sufficient to establish constitutionality. It is also not plain that "encouraging the right thing" is itself a governmental interest. People have all sorts of different ideas about what "the right thing" is and the process of moral persuasion is not ideally relegated to the federal government.

[JimDandy]

Mere allegation of a governmental interest in itself is not sufficient to establish constitutionality.

Mere allegation of anything is not sufficient for much of anything. Mere allegation will not even sustain a grand jury.

I was being intentionally broad, that's why I included all three bases for review, because the question itself was general. A law requiring the D.O.T to subsidize a national ad campaign to reduce drunk driving, if challenged for some unlikely but possible reason, would likely fall under Rational Basis review. It would be in the government's interest to encourage its citizens to "do the right thing" and not drive impaired.

[zukiphile]

Originally Posted by JD

I now ask you- if that is still happening- which I hope you would concede- the purpose is not being served, and it is not restricting the flow of firearms to prohibited persons. I feel that grants me leave to repeat my original question- Have you an idea to efficiently restrict the flow of firearms to prohibited persons?

My answer would not change. Criminalizing the possession of firearms by those who by means of due process no longer have the right to possess those arms is an efficient way to restrict arms to those people.

We do not require perfection.

Originally Posted by JD

The NICS system is not perfect.

Indeed. Neither are speed limits. We could put the sale and purchase of cars that can travel over 65 mph under the authority the federal government, which would encourage people not to purchase cars that go too fast (i.e. encourage them to do the right thing) and would almost assuredly reduce the frequency with which people exceed speed limits. Yet, we consider speed limits sufficiently effective for the purpose of regulating traffic.

I could fashion legislation that if an active would absolutely stop all speeding, but no reasonable person would consider that sort of law efficient.


Apologies. I will have to return to this later; I have a lunch I cannot put off.

[MLeake]

Kochman, do you not understand that the feds are only supposd to enjoy enumerated powers, and that the Constitution was deliberately set up in such a way as to leave most criminal law up to the states?

Laws are supposed to serve some good purpose, nobody is arguing against that. What they are arguing is under what circumstances, under the Constitution, the feds are allowed to dictate to the states. Those circumstances are, and were deliberately designed to be, very narrow in scope.

You do not seem to want to discuss the issues of federal power grabs, nor the examples I provided where the US government, not Stalin, oppressed and even murdered people on our mainland. Why is that?

[JimDandy]

My answer would not change. Criminalizing the possession of firearms by those who by means of due process no longer have the right to possess those arms is an efficient way to restrict arms to those people.

We do not require perfect.

Many of the people objecting to the extension of the NICS system to private sales use just that requirement to object to it. Some version of "People would get around it anyway".

[Kochman]

Kochman, do you not understand that the feds are only supposd to enjoy enumerated powers, and that the Constitution was deliberately set up in such a way as to leave most criminal law up to the states?

MLeake, you do understand that the 10th Amendment became invalid with the Civil War because the south chose to not back down on slavery (the abolishment of which would have destroyed their economy... which was destroyed anyhow in the end).

[MLeake]

No, it did not. You will notice that it, unlike Prohibition, was never repealed.

You do seem to argue quite a bit from a "might makes right" viewpoint, though.

[Kochman]

I didn't say I supported it, but merely that that's the reality of the situation.

Bush and Obama both regularly violate the BoR as well... so, those are going away.
4th, 5th, 6th... Obama would love to get rid of the 2A, and turn it only into a privilege (read, something only the rich can do, like in Europe).

[zukiphile]

...the 10th Amendment became invalid with the Civil War ..

No. See National League of Cities.

Originally Posted by JD

Many of the people objecting to the extension of the NICS system to private sales use just that requirement to object to it. Some version of "People would get around it anyway".

I do not understand the objection to be that a universal background check might still permit a prohibited person to gain possession of a firearm, but that it will unduly burden those who are not prohibited.

[MLeake]

So, to prevent them from chiseling away at the BoR, you suggest giving them more power?

Are you familiar with Neville Chamberlain?

Edit: question for Kochman, not Z; but Z is correct about one of the major objections.

[Kochman]

I don't see expanding background checks as a "giving them more power" situation, really. I see it as a power they already have, and a justifiable power at that... so, I support it, but I support it being done effectively.

And, again, it's not an "unjust" burden to do one... if that's your argument guys, you're going to lose in any court of law in the country. It won't even get lose to the SC.

[JimDandy]

No, it did not. You will notice that it, unlike Prohibition, was never repealed.

It has however been chipped away at quite a bit. In a bit of searching, New York v United States 488 U.S. 1041 (1992) was the only case I was able to find where the holdings benefited the State over the Federal government, along with an opinion that recent jurisprudence has been for the Federal government in most cases that do not deal with the Federal Government attempting to control state resources for it's own purposes.

[JimDandy]

MLeake:

Having the system "indemnify" sellers would imply that they otherwise should bear a liability that they don't bear. So, I don't like the indemnity bit on second thought, but would still be ok with an OPTIONAL system, if costs were supportable.

When I've seen that in legislation, the writers usually specifically point out some version of "such indemnity does not, and should not be used to imply culpability" or some such legalese.

[MLeake]

Kochman,

Take your only the rich concept...

Now let's look at a single mother, whose kids have allergies and require regular treatment. She works, and goes to school in hopes of eventually getting a better paying job. (I know somebody in this position, so I chose it for discussion.)

Say she needs a gun due to threats from a guy she had dated, who became a stalker.

You want her to come up with not only the money for a decent gun (let us say $275 for a used model 10), but also $50 for the transfer fee in her area, plus the time (between work, school, and kids) and gas money to drive to an FFL?

Note: This assumes FFLs don't exploit the newly formed federal racket, and jack fees up to $100 as they have in some areas.

Huh.... Sounds kind of like what you describe as a bad thing, in Europe.

[JimDandy]

I do not understand the objection to be that a universal background check might still permit a prohibited person to gain possession of a firearm, but that it will unduly burden those who are not prohibited.

I understand it to be both- i.e. They'll just get around it, so why make me do it.