Background checks - controversy

[JimDandy]

I'm not sure how you can argue minimal harms, when you fail to quantify the harms.

I don't believe I've made any argument on harms either way, other than to point out the very same deprivation issue for the hypothetical "Battered woman" escaping her batterer to Kochman in the thread- though I have brushed up against them here and here.

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.

[MLeake]

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?

[JimDandy]

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.

[zukiphile]

This thread does move along.

Originally Posted by JD

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.

That is a succinct rendition of the proposal and its justification.

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?

[JimDandy]

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?

The same place they get the authority to license the Federal Firearms Licensee in the first place. The firearm has been in, affecting, and affected by, interstate commerce.

[zukiphile]

The same place they get the authority to license the Federal Firearms Licensee in the first place. The firearm has been in, affecting, and affected by, interstate commerce.

Yet the GCA does not require federal assent prior to exercise of a fundamental liberty. You are proposing a change in the law under which federal assent would be required prior to exercise of a fundamental liberty.

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?

[Spats McGee]

Originally Posted by MLeake

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.

I'm a little behind but if someone will tell me what kind of case you're looking for, I'll be glad to go on the hunt.

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."

[JimDandy]

Hey wait! I may be able to cite this stuff reasonably correctly for you professionals, but I'm still a layman.

Yet the GCA does not require federal assent prior to exercise of a fundamental liberty. You are proposing a change in the law under which federal assent would be required prior to exercise of a fundamental liberty.

You're going to have to translate that a LITTLE more for the English speaker in me. Not quite sure why it's assent from the Govt for an FFL transfer from their inventory, but not for a secondhand sale.

[zukiphile]

I'm a little behind but if someone will tell me what kind of case you're looking for, I'll be glad to go on the hunt.

I would not presume to tell you how to do your non-job (as opposed to your real/day job), but I would include in that search the scenario in which someone gets on a "no-fly" list and cannot get off it.

[JimDandy]

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."

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.

[zukiphile]

Originally Posted by JD

You're going to have to translate that a LITTLE more for the English speaker in me. Not quite sure why it's assent from the Govt for an FFL transfer from their inventory, but not for a secondhand sale.

My apologies. I will try not to muddle this in translation.

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?

[JimDandy]

Do you think that difference is important?

Not trying to be difficult, but I don't see the difference between a private citizen who owns a gun store, and a private citizen selling his no-longer-desired possession as far as is covered by the GCA. Edit to clarify- can you explain what you feel the difference is?

If newspapers are in or affect interstate commerce, does the federal government have the authority to restrain their publication

They have the authority to issue a gag order.

[Brian Pfleuger]

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?

Or require background checks before you could access the internet, or require permits for all bull-horn purchases, or deny internet access to anyone convicted of a crime punishable by 3 or more years in prison, or require a permit to participate in church services, or deny access to clergy for convicted felons...

[zukiphile]

Originally Posted by JD

They have the authority to issue a gag order.

Courts do. Congress doesn't.

Originally Posted by JD

I don't see the difference between a private citizen who owns a gun store, and a private citizen selling his no-longer-desired possession as far as is covered by the GCA.

The first is a federal licensee. The second is an unlicensed individual protected by the Second Amendment.

[JimDandy]

The first is a federal licensee. The second is an unlicensed individual protected by the Second Amendment.

The Federal licensee has Second Amendment Protection as well.

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.

[Spats McGee]

Originally Posted by JimDandy

Can you explain why? The person selling the firearm is a private citizen one way or another. The firearm is the same firearm.

The short story: Firearms dealers are federally licensed. Private individuals are not.

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.

[JimDandy]

Courts do. Congress doesn't.

My bad. Didn't separate the three branches like I should have.

Congress can hold hearings and investigations, issuing subpoenas. They can't gag-order a journalist in a closed hearing?

[zukiphile]

Originally Posted by BP

Or require background checks before you could access the internet, or require permits for all bull-horn purchases, or deny internet access to anyone convicted of a crime punishable by 3 or more years in prison, or require a permit to participate in church services, or deny access to clergy for convicted felons...

Brian, the point on which I believe we agree is that an individual retains the rights described in the Bill of Rights against the federal government even when those rights pertain to interstate commerce.

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.

[zukiphile]

Originally Posted by JD

They can't gag-order a journalist in a closed hearing?

If a journalist is there, is it a closed hearing?

Originally Posted by Spats M.

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.

My wild guess would be that since those are susceptible to administrative correction prior to adjudication, and because that kind of factual/evidentiary administrative determination is likely to be given deference by a court, you may be looking for a non-existent needle in the Westlaw haystack.

[Spats McGee]

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. . .

[Brian Pfleuger]

Originally Posted by zukiphile

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.

I think we agree completely.

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.

[zukiphile]

Originally Posted by JD

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.

An FFL effectively limits some of his fourth amendment protections because the pertinent regulatory/law enforcement agency is entitled to enter the address on theFFL during business hours and conduct a search without any warrant or reasonable suspicion. There are some perfectly good reasons not to be an FFL.

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.

[JimDandy]

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.

True, but you don't NOT have a right to be one either. And part of the case against NY's Safe Act was that it interfered with the livelihood of a gun store owner. Understandably we have dual sovereignty, and Federal law trumps State, so maybe that's the conflict here. Or maybe it's one of those 9th amendment rights not quite enumerated.

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

• The FFL is a citizen with 2A rights
• His store is a corporate citizen with 2A rights?
• The firearm is in interstate commerce because it has moved across state lines to get to the store
• The firearm doesn't leave interstate commerce when it gets to the gun store
• The firearm still doesn't leave interstate commerce when it gets sold to a resident of the same state as the gun store

I think there's a concept I'm missing.

[Spats McGee]

Originally Posted by JimDandy

The FFL is a citizen with 2A rights

Yes

Originally Posted by JimDandy

His store is a corporate citizen with 2A rights?

Maybe

Originally Posted by JimDandy

The firearm is in interstate commerce because it has moved across state lines to get to the store

Yes

Originally Posted by JimDandy

The firearm doesn't leave interstate commerce when it gets to the gun store

Probably

Originally Posted by JimDandy

The firearm still doesn't leave interstate commerce when it gets sold to a resident of the same state as the gun store

Maybe, but less likely

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.

[JimDandy]

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.

The firearm is in interstate commerce because it has moved across state lines to get to the store
Yes

OK here we're on the same page.

The firearm doesn't leave interstate commerce when it gets to the gun store
Probably

Here's where I start to fall off. I get that it's in interstate trade when the FFL purchases the firearm, and it arrives. I think we all agree to that one.

Quote:
The firearm still doesn't leave interstate commerce when it gets sold to a resident of the same state as the gun store
Maybe, but less likely

And here's where I skin my knee trying to keep up. The interstate commerce occurs because the firearm moves across state lines. The Federal Govt has the authority to regulate the resale because of that- even if it sits in one state gun store shelf for 20 years. What changes in the firearm that they don't continue to have re-resale regulatory authority by passing through one or more sets of hands that may or may not cross state lines with it?