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April 17, 2013, 02:44 PM | #326 | |
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I have acknowledged there are false holds, when I pointed out that if the 120K number is 45K and 75K many but not all of those holds will be for other reasons like citizenship, mental deficiency, and so on. False Delays are neither acceptable, nor bad faith on the part of the government/NICS system. And IF they were enough to make the system unconstitutional, it would have failed SCOTUS challenge. Finally, stopping murders is not the basis of the case I make for them. Stopping the possession of firearms by a prohibited person is. There's demonstrable evidence that the checks have prevented a transfer to a prohibited person. There's also demonstrable evidence that other means exist to allow prohibited persons to achieve the goal of firearm ownership. I advocate extending a presumptively constitutional regulation to one of those other avenues. |
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April 17, 2013, 02:47 PM | #327 |
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JimDandy, I am not aware of a SCOTUS challenge having been brought yet, with regard to a false claim.
Maybe Spats, Frank, or Al know of one. There are many laws out there that should not, and possibly would not, pass a SCOTUS challenge, but that have not been heard before SCOTUS. Has there ever even been a federal circuit case about a false denial? |
April 17, 2013, 03:09 PM | #328 |
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The only court case I can find is Printz v United States regarding the interim provision of the Brady Bill.
Edit: Which by the way was a victory for the States, a loss for the Feds and the Commerce Clause. |
April 17, 2013, 03:28 PM | #329 | |
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This thread does move along.
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I note that there is no evidence that the 4473 prevents transfers to prohibited persons, only that it would prevent a transfer from a federal licensee. That system of federal licensees and 4473 checks is presumptively constitutional because a body, here the federal government, must necessarily have jurisdiction over its licensees or else they would not be its licensees. Let us also note that those federal licensees agree to some impairment of what would otherwise be their fourth amendment protections. Since an unlicensed individual purchasing a firearm is not a federal licensee, where does the federal government obtain the authority to determine whether that individual will be permitted to obtain the item that lets the individual exercise a fundamental liberty?
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April 17, 2013, 03:32 PM | #330 | |
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April 17, 2013, 03:48 PM | #331 | |
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Do you acknowledge the materiality of that difference? If newspapers are in or affect interstate commerce, does the federal government have the authority to restrain their publication? Or is the federal power to regulate interstate commerce subject to the other limitations in the Constitution?
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April 17, 2013, 03:51 PM | #332 | |
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As far as the false positives on NICS checks and appeals, when balancing benefits against burdens against the tailoring to a government interest, remember that in 1993, when the Brady Bill was enacted, the 2A had not yet been declared a fundamental, individual right. Accordingly, the balancing test may have shifted when it was. Also, the requirement that a NICS check be performed "when a federally licensed firearms dealer sells a firearm" is completely different in scope (tailoring) than a requirment that one be performed "when a person other than one licensed by the federal government sells a firearm."
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April 17, 2013, 03:53 PM | #333 | |
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Hey wait! I may be able to cite this stuff reasonably correctly for you professionals, but I'm still a layman.
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April 17, 2013, 03:53 PM | #334 | |
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April 17, 2013, 03:56 PM | #335 | |
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Can you explain why? The person selling the firearm is a private citizen one way or another. The firearm is the same firearm. And the kind of case is someone judicially challenging a false denial/delay from the NICS check. |
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April 17, 2013, 03:58 PM | #336 | |
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The Gun Control Act does set forth as the basis of its authority the commerce clause, but the GCA does not function as a federal "Mother may I" before an ordinary citizen of any state can procure the firearm by which he exercises the fundamental right to keep and bear arms. On the other hand, the change you suggest is a federal "Mother may I" that must be asked before an ordinary citizen can exercise his right. Do you think that difference is important? If newspapers are in or affect interstate commerce, does the federal government have the authority to restrain their publication? Or is the federal power to regulate interstate commerce subject to the other limitations in the Constitution?
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April 17, 2013, 04:01 PM | #337 | ||
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April 17, 2013, 04:03 PM | #338 | |
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April 17, 2013, 04:05 PM | #339 | ||
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April 17, 2013, 04:08 PM | #340 | |
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I'm not aware of- though I'd be figuratively/conversationally happy to learn of- any premise that one must surrender one right to enjoy another- i.e. 2A for right to livelihood. |
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April 17, 2013, 04:09 PM | #341 | ||
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Longer: First of all, firearms purchases have not required background checks. In 1933, a 10-year-old could have ordered a machine gun through the mail, and it would have been delivered to his door. When Congress went to make background checks mandatory for FFL purchases, it claimed the power to regulate firearms dealers, because firearms travel in interstate commerce. However, once it becomes the personal property of an individual, there's no grant of Congressional authority to regulate its disposition. As far as citing cases involving NICS denials and no-fly lists, give me a few minutes and I'll run a Westlaw search or three.
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April 17, 2013, 04:10 PM | #342 | |
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Congress can hold hearings and investigations, issuing subpoenas. They can't gag-order a journalist in a closed hearing? |
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April 17, 2013, 04:11 PM | #343 | |
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I believe that states are within their rights in denying fundamental constitutional rights were those rights are denied as a result of due process. For instance, if I walk into a school and kill a couple dozen people, upon conviction I should not expect to be able to vote or travel freely.
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April 17, 2013, 04:12 PM | #344 | ||
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April 17, 2013, 04:13 PM | #345 |
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Let me also address the "gun store vs. private citizen" issue. I have a right to many things. A right to a particular profession is not one of them. I have a right to be considered for a particular profession without regard to race, gender, or other protected status, but I do not have a right to be (for example) an FFL. If I want to enter that profession, I apply. In acting in my capacity as an FFL, I am bound by federal law on NICS checks. I still have my 2A rights, when I act as an individual citizen.
Just wait until I get started on individual and official capacity lawsuits under 42 USC 1983. . .
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April 17, 2013, 04:17 PM | #346 | |
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I meant those things in the same way they apply to firearms law... Can they require "Universal Background Checks" for internet access, for example. Everyone would think that was silly, yet somehow it's ok with another, much more specific, fundamental right.
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April 17, 2013, 04:25 PM | #347 | |
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I am a different kind of government licensee. My state limits the kinds of statements I can make about courts and judges. Before AZ v. Bates people in my profession were prohibited from advertising in most states, or the manner in which they could advertise was severely regulated.
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April 17, 2013, 04:31 PM | #348 | |
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What I'm still not wrapping my head around, is why an FFL is required, and NICS checks are constitutionally forced, if, he's also an individual with rights? Commerce Clause sure.. but on top of that, his store is probably a "Corprorate Citizen" that has rights as well not? IF
I think there's a concept I'm missing. |
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April 17, 2013, 04:38 PM | #349 | |||||
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It sounds like you've got all the pieces, but you're just not quite sure how they fit together. Unfortunately, it's a little like having a 3-D jigsaw puzzle made out of sponges. It's a little squishy in this area.
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April 17, 2013, 04:43 PM | #350 | |||
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The pieces I think I have the most problem with is why it's interstate commerce for FTF retail sale, but not for FTF second hand on the exact same firearm.
I can see it being one or the other in both cases. But I don't see how it swaps from Transaction A, to Transaction B. Quote:
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Last edited by JimDandy; April 18, 2013 at 01:36 PM. |
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