Background checks - controversy

[Al Norris]

Sorry Kochman, but driving is a right. There are plenty of court cases to back that up. Simply because you fail to exercise that right.....

If you have a right to travel, there is the ancillary right to travel by means of your own property. Regulation of that right, to the point where such regulation makes it a privilege, does not make such regulation constitutional.

[I'vebeenduped]

Kochman,

My questions for you; Where does it stop? When is there enough regulation? What happens to all of these new laws and registrations you want when they fail? Are they repealed? Are more laws then laid over these laws to complicate things? You said this about more laws, "Absolutely, because it makes it extra super double more expensive, at a minimum, and is yet another charge you can throw at them during the commission of a crime if they use their illegal gun..." however, you seem okay with burdening ordinary citizens for a basic right. In your zeal to make things impossible for criminals to get, you are doing the exact same thing to citizens. That doesn't seem problematic to you?

[Brian Pfleuger]

There is a fundamental flaw in the concept of universal background checks that is all too often ignored.

Simple, most basic, first question...

Does the concept arise from an enumerated power granted to the national government?

No.

End of concept.

Any other arguments are moot. Doesn't matter if it's a "good idea". It's unconstitutional on it's face. The national government does not have the power. Period.

[Kochman]

@Z
You're putting words in my mouth.
If a seller wittingly sells to an illegal person, there is liability.
But, that's not what I am saying, I said the illegal person would get charged with 3 crimes, rather than two. This technique is used all the time in law and order...

Indeed, that is a significant problem with the argument for your proposal.

Actually, it was more the fallicy of your point...

That you consider a purchase from an FFL minimal does not bind anyone else to the same conclusion.

OK, prove the undue burden.


@Al
Driving is not a right per the Constitution, it is a privilege.
Travel is a right... driving privileges can be revoked for repeated DUIs, etc...
So, it's still a bad analogy either way.

[Kochman]

There is a fundamental flaw in the concept of universal background checks that is all too often ignored.

Simple, most basic, first question...

Does the concept arise from an enumerated power granted to the national government?

No.

End of concept.

Any other arguments are moot. Doesn't matter if it's a "good idea". It's unconstitutional on it's face. The national government does not have the power. Period.

Yes, actually, read the preamble. The connection is quite obviously there.

[Webleymkv]

Originally posted by Kochman

@Webleymkv
I mainly agree with you. Very well thought out post.
4473 is a necessary evil... expansion of it isn't a bad thing, because, as you said, it is necessary. I would expand it to all stranger-stranger sales...

I said that it was a necessary evil for FFL's, I do not feel that it would be necessary, effective, or prudent for private party sales. As I've stated before, the problem with UBC's is that they are unenforceable without registration, and even that isn't fool proof.

Let's suppose, for a moment, that UBC's were made law without registration. Now, let's further suppose that you've got two unscrupulous people who do not respect said law and wish to transfer a gun illegally, what would stop them from doing so? The only two reasons for someone to obey a law is that they either respect the law or they fear the punishment for breaking the law. There are hundreds of millions of firearms in this country and, because firearms are durable goods, the vast majority of them will still be functional for decades, if not centuries, more. So, without some sort of registration, what would prevent these two unscrupulous people from conducting their illegal transfer and simply claiming that it took place before the law was in effect?

Let's take this a step further and assume that, because UBC's are so easily skirted, that we move into full-on registration. In such a case, what would prevent an unscrupulous seller from simply reporting the gun that he sold stolen? Since an unregistered gun would already be illegal, what difference would it make to the buyer that his contraban is "double illegal?" Even if the buyer were caught with the gun and told the authorities where he got the gun, it would be a known criminal's word (afterall, he is at the very least guilty of posessing an unregistered gun) against that of someone whose guilt is unproven. Who would you believe in such a case?

Now, I should probably explain why I am so against registration. Registration opens the door for even more harassment and illegal actions against lawful gun owners that what we're already forced to put up with. A good example is what The Journal News did to NY gun owners recently, that would have been impossible if NY did not have registration. Furthermore, if there is a centralized registry of gun owners, what would stop an overly zealous government official from conducting confiscation raids given an excuse such as a natural disaster. Think that can't happen? It already did in New Orleans during and after Hurrican Katrina in 2005. Now, would this be illegal and unconstitutional, you bet. Would the courts rule against this action after the fact, almost certainly. Would the proceeding two facts be of any comfort to the people who've had their guns confiscated when they need them most, I very much doubt it. Let's stop and remember that everything is Constitutional until the courts say otherwise. We know now that Lincoln's declaration of martial law in New York and Roosevelt's internment of Japanese-Americans were both illegal and unconstitutional, but that didn't stop them from happening.

[Kochman]

however, you seem okay with burdening ordinary citizens for a basic right. In your zeal to make things impossible for criminals to get, you are doing the exact same thing to citizens. That doesn't seem problematic to you?

My God man...
Look, the 4473 doesn't make it "impossible" for citizens to get guns. That's absurd.

[Webleymkv]

Yes, actually, read the preamble. The connection is quite obviously there.

Can you cite a single Supreme Court case in which the preamble was used in the rationale for the ruling?

[Kochman]

Let's suppose, for a moment, that UBC's were made law without registration. Now, let's further suppose that you've got two unscrupulous people who do not respect said law and wish to transfer a gun illegally, what would stop them from doing so?

The follow on investigation on the tracing of the weapon... where the paper trail stops, we have a problem.

[Kochman]

Can you cite a single Supreme Court case in which the preamble was used in the rationale for the ruling?

Is this a serious question?
I won't dignify it with further response.

[Webleymkv]

Originally posted by Kochman

Quote:
Let's suppose, for a moment, that UBC's were made law without registration. Now, let's further suppose that you've got two unscrupulous people who do not respect said law and wish to transfer a gun illegally, what would stop them from doing so?

The follow on investigation on the tracing of the weapon... where the paper trail stops, we have a problem.

How about quoting the rest of that paragraph and then responding. The end of the paper trail would not necessarily prove anything.

[Kochman]

I've got a job to work at too...
I think I'm doing a fair job of defending a simple process.

We can what if it all day, but if the what if isn't really very relavent I'm not going to address it.

[Webleymkv]

Originally posted by Kochman

Quote:
Can you cite a single Supreme Court case in which the preamble was used in the rationale for the ruling?

Is this a serious question?
I won't dignify it with further response.

Yes, actually, it's very serious. Since you keep citing the preamble as basis for constitutional law, I think it's reasonable for you to show us when and how SCOTUS, which is the final authority on constitutional law, has applied the preamble. If you cannot or will not, then I'm afraid that citing the preamble won't carry much weight.

I've got a job to work at too...
I think I'm doing a fair job of defending a simple process.

We can what if it all day, but if the what if isn't really very relavent I'm not going to address it.

My friend, it was you that opened this can of worms. You cannot very well start a debate like this and not expect to have to defend specifics.

[Brian Pfleuger]

Originally Posted by kochman

Yes, actually, read the preamble. The connection is quite obviously there.

The Preamble is not law and has never been used as justification of any law or right. In fact, in the only case that directly addressed the issue, JACOBSON v. COM. OF MASS (1905), SCOTUS specifically said "the Preamble indicates the general purpose for which the people ordained and established the Constitution" and "[the Preamble] has never been regarded as the source of any substantive power conferred on the Government..."

[JimDandy]

Apples and Oranges Jim.

You may travel by any means you can pay for, as opposed to traveling in your own vehicle.

As for your open v. concealed carry? It didn't come first. The vehicle thing was first.

And ... You have just proved my point.

How did I prove your point with apples and oranges?

Not that comparing apples and oranges is necessarily bad. Many cases do it over and over. Citing free speech cases in religion cases, and so on.

You had to pay for your own vehicle. You can do that. Or you can pay for a taxi to convey you. Neither infringes the right of travel. When someone loses their "right" to drive via numerous and repeated DUI convictions, they still retain their right to travel.

And I was under the impression, at least according to the Kachalsky case I was reading in another post, that bans on concealed carry were far older than the horseless carriage.

[zukiphile]

Originally Posted by Kochman

Crying over spilled milk" is unproductive. We live within the reality we live in, and it can be adjusted, but it's a process, just like it was a process to get it where it is now.
Things get regulated. We can regulate smartly, from our side... or, when we fail to self-regulate, and repeated cases of it are made clear, there will be support for the other side which will regulate much more draconically.

This signals a significant shift in your argument. The cake sharing story comes to mind.

I would suggest that determining how milk gets spilled could be useful in preventing future spills.

Originally Posted by Kochman

@Z
You're putting words in my mouth.
If a seller wittingly sells to an illegal person, there is liability.

I have responded to your text.

If there is criminal liability for a knowing sale to a prohibited person, you do not need a 4473 check, right?

Originally Posted by Kochman

But, that's not what I am saying, I said the illegal person would get charged with 3 crimes, rather than two. This technique is used all the time in law and order...

Law&Order, the television program? I do not know how it is in your state. In my state, a court cannot redundantly sentence to crimes for the very same act. Sentencing is limited to the more serious charge.

Originally Posted by Kochman

Actually, it was more the fallicy of your point...

That is incorrect. There is no logical fallacy in noting that your argument for your proposal rests on your own implausible speculation.

Originally Posted by Kochman

OK, prove the undue burden.

As a preliminary matter, you have not demonstrated let alone proven the appropriate burden imposed by your proposal. Merely shifting the burden of proof does not alter the topography of the argument.

That said, circumstances in which the burden involved is undue are not difficult to explain.

The right described by the Second Amendment is a fundamental right. In order to abridge a fundamental right a law should be narrowly tailored to achieve a compelling governmental interest.

Imposing criminal liability on every individual everywhere who otherwise legally transfers a firearm, the transfer by which the right described in the Second Amendment is exercised, imposes a criminal liability on the exercise a valid constitutional right. The proposal is not narrowly tailored; on the contrary it is so broad that the word universal is the common description for its scope.

Moreover, the federal government has no compelling governmental interest in running a background check on me, an individual entitled to my full complement of civil rights, before I am entitled to exercise that right.

If you doubt that, contemplate whether your proposal would work if applied to the right to vote, also a fundamental right. What is the result of your contemplation on that point?

[rc]

I think the big problem with "background checks" is that the [government] will try to link a registry system to this. This will help with future confiscation efforts. I don't think anybody has any doubts as to the ultimate goal of many in our society that is to use incidence of violence to push a political agenda. Did we outlaw the new ford V8 because it was a preferred ganster vehicle that would outrun the police? Uh, no. Do we outlaw driving because of car accidents or sports cas because they are often used wrecklessly? Uh, no!

We are now seeing an abuse of privacy in the health care system to look for individuals who may have taken a drug for a psycological diisorder like depression and using that as an excuse to confiscate guns from anyone living in the same household. Privacy and private property rights are ignored in a witch hunt to blame all gun owners for violence in America.

Here is my take on the currenty frenzy. We are seeing McCarthy era politics in America. American's through history have wanted to blame some group for the ills of the country.....So this is a human reaction to trajedy. The thing is we see after the fact how wrong it was to inturn Japanese American's....Blaming guns for crime and labeling gun owners as criminals is no less misguided...

If we could put a system in place that allows people who have never been involved in violent crime to obtain firearms without registration and without abuse of the system by prohibitting people who have never been convicted of a crime or ajudicated as a danger to the public then maybe background checks can gain some traxction. Until then it will be controversial becausee it is so ripe for abuse in the current political climate.

[I'vebeenduped]

Kochman, "My God man...
Look, the 4473 doesn't make it "impossible" for citizens to get guns. That's absurd."

I was quoting YOU with, because it makes it extra super double more expensive. What part of that DOESN'T make it impossible for citizens to obtain firearms????

[MLeake]

Kochman,

I am beginning to find you not just wrong, but offensive.

First, you claim that most people who oppose UBCs probably know they should be prohibited persons... Personally, I am a retired Naval Aviator, still work in a job which requires an active clearance, and have no worries about my ability to pass a check. I do think that could change if the government followed the lead of the UK or Australia, and I would rather not enable that.

Spats, whom you treat with veiled insults, is not likely prohibited either, due to a reason that leads to my second problem with you - he is a city attorney. So here is the second problem - you beat us over the head with your "it's all in the Preamble!" business, and act as though we are stupid when we ask when the Preamble has been accepted as case law. Yet some of those "stupid" people you denigrate are lawyers. What is your legal background?

My third problem with you is that you still have not addressed the volume of false positives, though you imply they are minimal. Yet the info you cited claimed 45,000 felons... so if 120,000 were stopped, that means 75,000 were non-felons. To you, this may be trivial...

So, you might try toning yourself down, behaving more respectfully, and actually answering fact-based questions. Or, you could just start to lose the audience when your bag of tricks annoys enough of them.

[zincwarrior]

Beating and leaving of a spouse isn't generally an overnight development...
Any stranger to stranger sale should be vetted. That's my opinion.

I really get tired of people thinking they are losing their rights because they have to fill out a form which simply reports if they've already lost their rights. It simply isn't accurate, and when you point that out to them and they continue to argue the same point, they create confusion and fear amongst people, and that's not a good thing, as it leads to knee-jerk reactions...

I was raised to be a responsible gun owner. I kind of expect gun owners to be responsible and thoughtful.

@Z
Any such unjustified loss is temporary. That's the key word.
And the 4473 is hardly "undue hardship".

Agreed generally.

EDIT: The temperature also seems ot be rising in the thread. Mayhaps we should all take a breather and remember this is just a discussion...

[csmsss]

I find the preamble argument hilarious. Were the preamble part of accepted case law, there would essentially be no action the government might take that could be ruled unconstitutional. "General welfare" is absurdly vague by ANY conceivable linguistic construction, and can be used to justify any behavior committed by the government, no matter how unconscionable.

[MLeake]

csmsss, didn't FDR use the Preamble when he decided to round up Japanese Americans and stick them in internment camps during WWII. Their detention was only temporary, though, right? I mean, except for the few who were old, or ill, and who died while interned... Or possibly for those who went home to find their homes burned down, razed, or looted...

Sure made a nervous public a lot less worried about the Yellow Peril, though, so it must have been worth doing.

[johnwilliamson062]

In my area the NICS check is going to average about 7% of the price of used guns sold assuming average price is about $400. FOr individuals with a lower income buying cheaper guns it will be more like 15%. In my exchanges were several Mosin Nagants and Nagant 1895 Revolvers. FOr those firearms it would have added almost 50% to the cost of transfer.

For a law, that like the initial NICs check, actually accomplishes NOTHING. If cartels can import MILLIONS of pounds of drugs across the Southern border, what in the world is going to stop them from bringing in guns to sell to the criminal organizations they already supply with drugs? they already do business in countries where full auto weapons are widely available as there is a large overlap with countries manufacturing drugs. These laws have never worked and will not work now. At best they will limit gun ownership to organized crime empowering them to terrorize law abiding citizens as was done in Chicago and New York in the past.

[csmsss]

csmsss, didn't FDR use the Preamble when he decided to round up Japanese Americans and stick them in internment camps during WWII. Their detention was only temporary, though, right? I mean, except for the few who were old, or ill, and who died while interned... Or possibly for those who went home to find their homes burned down, razed, or looted...

Sure made a nervous public a lot less worried about the Yellow Peril, though, so it must have been worth doing.

Well, I wasn't around, so I can't be sure, but that would fit right in with his method of governance. It's not like America is a nation of constitutional scholars, and we were in a state of war at the time, so I doubt many folks were dotting the I's and crossing the T's vis a vis Japanese Americans' civil rights.

[JimDandy]

My third problem with you is that you still have not addressed the volume of false positives, though you imply they are minimal. Yet the info you cited claimed 45,000 felons... so if 120,000 were stopped, that means 75,000 were non-felons. To you, this may be trivial...

While I don't agree with the tone of his argument either, there's a possible hole in your logic as well here.

If 120,000 were stopped, 45,000 were felons, that does indeed leave 75,000 people. Even IF we concede the "felons" category includes those convicted of a prohibiting domestic violence crime, At least some of those 75,000 would/could also be illegal aliens, those adjudicated mentally deficient, subject to a restraining order, under current indictment, voluntarily renounced citizenship, and any others I may have forgotten. The "felons" category in the NICS Database is neither the first nor the second most prolific category for sourced records.