Background checks - controversy

[Brian Pfleuger]

I agree, Jim.

And the most obvious and logical fallacy is that the gun is involved in IC when the dealer in a state sells it to a resident in that same state. That simply doesn't make sense to most people. It doesn't make sense if you substitute any other item for the gun.

In other words, federal background checks are unconstitutional.

[Vartarg]

Put me down for "knee jerk" responses to resist each and every encroachment of our Second Amendment rights.....

Their goal is to confiscate guns.....not now, but down the road, and they won't give up, and neither should we.

Just say NO

[Spats McGee]

Someone asked earlier about examples of giving up one right in exchange for keeping another. The best example I can come up with is: parolees. By contract (with the parole office), they effectively waive their A4 rights in return for freedom from confinement.

As far as the FTF transaction, Jim, don't focus on the firearm. Focus on the parties involved in the transaction.

[JimDandy]

Edited the previous post to more accurately reply to Spats Brian.

In other words, federal background checks are unconstitutional.

Given the GOA, NRA, and SAF why haven't they been challenged yet? Honest question, not being smart-mouthed. I think they'd be good, but I'm also open to the idea that good as it might be, they'd be unconstitutional.

[Spats McGee]

A constitutional challenge has an awful lot of moving parts, all of which need to be in the right place, at the right time. You've got to have:

• the right plaintiff(s)
• the right set of facts
• the right injuries/damages
• the right venue

It may simply be that the particular constellation of stuff hasn't arisen for the folks who want to challenge it.

[JimDandy]

Someone asked earlier about examples of giving up one right in exchange for keeping another. The best example I can come up with is: parolees. By contract (with the parole office), they effectively waive their A4 rights in return for freedom from confinement.

As far as the FTF transaction, Jim, don't focus on the firearm. Focus on the parties involved in the transaction.

That was me. And Are they giving up one right for another? They don't have 4A rights in prison either. They just get one right restored before the rest of them.. i.e. Freedom before 4A.

I've focused on both. The FFL is not acting as an agent of the government except as required by the BG Check itself, so with that not-withstanding, they're no more government agent than a second hand seller.

[JimDandy]

the right plaintiff(s)

Couldn't be found in 20 years?

the right set of facts
the right injuries/damages

The facts are the same for nearly everyone, as are the injuries- To purchase a firearm one must undergo a background check

the right venue

Which given the universal application of the law, can be chosen not? One can find a little old lady with a penchant for guns in all 50 states I would think.

So far, the only challenges I've seen/remember are the Printz case, and Schrader v Holder. I would think an Estelle Getty never convicted of anything type that doesn't want Uncle Sam getting in her business to overturn than Schrader for just a small section.

[Brian Pfleuger]

Jim,

How long was slavery upheld? Segregation? Take your pick.


Besides that, we'd have to roll-back the legal understanding of the Commerce Clause.

[Spats McGee]

Application of law is probably not as universal as you'd think, even when it comes to federal law. Remember that federal law still has to interact with some state law. For example, a prisoner bringing a 42 USC 1983 civil rights case for unlawful arrest must make reference to the criminal laws of the state in which he was arrested.

In terms of injury damages, you've also got to remember that the right plaintiff probably has a clean criminal record. That probably also means that he or she will be cleared by the NICS check. Ideally, Betty White will be wrongfully denied.

[JimDandy]

But if the check itself is unconstitutional, just having Betty White want a handgun without the check should be enough, not?

[gc70]

Does it matter that a person who voluntarily applies for a FFL accepts the regulations surrounding the license and implicitly waives the exercise of various constitutional rights? OTOH, private individuals have not entered into such a voluntary contractual arrangement with the government and retain the ability to exercise all of their constitutional rights.

[JimDandy]

Is it voluntary if it's required to do something?

There was a bill out here that if you had one of the EBR's the Sheriff could come inspect your house once a year to make sure you had a decent gun safe or other security storage plan.

That wasn't really "voluntary" either.

[Evan Thomas]

Yes, it's voluntary. No one forces firearms dealers to go into that line of work.

There's some sort of analogy here with people who volunteer to join the armed forces. By doing so, they agree to subject themselves to the UCMJ, and their constitutional rights, such as their First Amendment right to criticize the Commander-in-Chief, are circumscribed for the period of their enlistment.

[JimDandy]

How is volunteering to be an FFL any different than volunteering to keep and bear arms?

Edit: I'm also not ready to stipulate everyone (ever)in the military and subject to the UCMJ volunteered.

[Spats McGee]

For starters, FFL is a profession. In theory, one earns a profit by being an FFL. As we all know, exercising the RKBA costs $.

[JimDandy]

And yet, interference with someone's FFL profession was part of the complaint about the NY Safe Act. Is there a New York statute that allows this?

[Brian Pfleuger]

I don't see background checks being an FFL issue, per say.

They're unconstitutional because the act of selling a gun to someone is no different than selling them a head of lettuce.

If the Feds said that you had to have an FFL to purchase firearms across state lines for resale, and you, the FFL holder, had to pass a background check, fine, that's interstate commerce.

Me buying the gun is not interstate commerce. You're in my state, I'm in your state, the gun is in our state. It's not interstate.

It's not really an interference to the FFL making a living, it's not even particularly an interference with the buyer if they're legal.

The issue is not if it's good or bad or hard or whatever to do background checks, it's do the Feds have the constitutional authority?

It doesn't matter how good the idea is if they don't have the authority.

[Evan Thomas]

How is volunteering to be an FFL any different than volunteering to keep and bear arms?

The right to keep and bear arms is just that -- a right. There is no "right to have a job."

Edit: I'm also not ready to stipulate everyone (ever)in the military and subject to the UCMJ volunteered.

I never claimed that -- it's a straw man argument. At the moment, we have, in principle, a volunteer military. (The subject of whether there's an "economic draft," in which the military becomes the job of last resort for poor, undereducated young people, is a subject for another time and another forum.)

When a draft has been in place, it has been either during a time of national emergency, or for a quite limited duration: two years, when we last had one in effect. Once that period is up, reenlistment is voluntary; the curtailment of rights during military service is one reason this is essential. And, (again in principle) a draft is meant to universal, hence fair.

[JimDandy]

The right to keep and bear arms is just that -- a right. There is no "right to have a job."

This says differently. And if they have a right to a job for being a protected class, under P or I, I have to assume I sure as heck do too.

Now if you meant you don't have a right to be an FFL, I can see that distinction, but again ask why interference in a man's FFL business was a valid claim/part of the complaint against the NY Safe Act being discussed in other threads.

[Spats McGee]

Originally Posted by JimDandy

This says differently. And if they have a right to a job for being a protected class, under P or I, I have to assume I sure as heck do too.

Well, I haven't read that in depth, but it starts with "If you have a right to work . . . " (emphasis supplied). As a general matter, no one has a right to a particular job. They do have a right not to be denied that particular job based on their membership in a protected class, but that's a different right. For example, let's say I want to go be a police officer. Presumably, I have the requisite legal knowledge and I'm a reasonably good shot (for a civilian). The local PD can deny membership in the incoming Academy class, because I'm also out of shape. It cannot deny me membership into the incoming Academy class based on my race or my gender. Technically, they can't deny me admission because of my age (over 40), either.

[JimDandy]

The IF part was about legal immigration status

[Spats McGee]

Well, ok, but here's the last part:

If you have been denied work or fired because of your nationality, appearance, or accent, you have the right to file a charge of discrimination with OSC. OSC can help you in getting the job you lost because of the discrimination. You can also receive pay for the days you missed work.

If an employer has denied you work or fired you because he/she will not accept your work authorization as proof of your legal right to work in the U.S., or only hires U.S. citizens or permanent residents, he/she is breaking the law. You need to show the employer the Lists of Legal Work Papers that appear on the back of the 1-9 form. If the employer still insists on seeing a particular document, or refuses to hire you, call OSC right away.

Visit the OSC web site at:
wwwjustice.gov!crt/osc

My point is that we do not start from the proposition that "X has a right to a particular job." Someone has the right not to be denied a job, or treated differently in the terms and conditions of his or her employment due to certain prohibited reasons (race, gender, age, etc.)

If you start from the idea that "X has a right to a job," then the employer is required to find reasons NOT to hire him or her, regardless of things like whether the employer has an open position, or whether X is actually qualified for the job.

[MLeake]

Vanya, sorry for any veer, but several of my friends who have been affected by Stop-Loss might disagree with you about all reenlistments being voluntary.

Also, military personnel CAN criticize the President and other elected officials, but they must do so as private individuals (EG, not in uniform, signed Tom Murphy from Pennsylvania, not CPT Tom Murphy, 173rd Airborne, USA).

[Evan Thomas]

Originally Posted by MLeake

Vanya, sorry for any veer, but several of my friends who have been affected by Stop-Loss might disagree with you about all reenlistments being voluntary.

I'm well aware of that issue, hence my phrasing:

Originally Posted by Vanya

At the moment, we have, in principle, a volunteer military.

[JimDandy]

If you start from the idea that "X has a right to a job," then the employer is required to find reasons NOT to hire him or her, regardless of things like whether the employer has an open position, or whether X is actually qualified for the job.

I don't believe that follows. First, because the constitution protects rights from the government, not private business - IN GENERAL, and Second, because other rights don't work that way. A right to keep and bear arms doesn't mean the FFL has to find a reason NOT to transfer a firearm to you regardless of whether you have the money, or are a qualified (as in not prohibited) to bear arms.