The Firing Line Forums

Go Back   The Firing Line Forums > The Conference Center > Law and Civil Rights

Reply
 
Thread Tools
Old November 9, 2012, 06:15 PM   #1
jeepstrapped
Senior Member
 
Join Date: March 22, 2009
Location: SD
Posts: 141
Has there ever been a consititonal challenge to NICS?

Sorry if this has been asked and answered already.

Has NICS ever been challenged on "Due Process" Fifth Amendment grounds, I am thinking of the "nor be deprived of life, liberty, or property, without due process of law" section, as being denied unjustly can be seen as a derivation of liberty without due process.

Or, and this is a stretch, on Sixth Amendment grounds with the "Confrontation Clause"? The "Confrontation Clause" would be a stretch, but the act of being denied implies that the individual denied has committed a criminal act as grounds for denial. And, if denied unjustly I think an argument could be made that the individual was de-facto accused, tried, and convicted without ever appearing in court.

Mostly I am just curious about this.

If this has been covered I would appreciate anyone directing me to the appropriate thread.
jeepstrapped is offline  
Old November 9, 2012, 08:09 PM   #2
Al Norris
Staff
 
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,311
First, before NICS could be challenged in any real sense, the federal laws that have made certain persons, prohibited from receiving and possessing firearms, would have to be overturned. That is not at all likely.

See generally 18 USC § 922(b), (d), and (g): http://www.law.cornell.edu/uscode/text/18/922

Then there are the various State laws that do the same. Striking the federal laws would not do away with any corresponding State laws. Those too would have to be challenged and overturned. Again, not likely.

The Heller decision advises us that these restrictions would most likely be constitutional. Therefore...

The NICS check is a narrowly tailored regulation that serves a compelling governmental interest. It does not infringe upon the right to buy a firearm. It merely checks to see that you are not a prohibited person, before allowing the transfer to proceed.

It is my opinion that the NICS law will stand up to strict scrutiny.
__________________
National listings of the Current 2A Cases.
Al Norris is offline  
Old November 9, 2012, 09:11 PM   #3
jeepstrapped
Senior Member
 
Join Date: March 22, 2009
Location: SD
Posts: 141
Al,

Thank you for the clarification and information.
jeepstrapped is offline  
Old November 9, 2012, 09:44 PM   #4
Mr. James
Senior Member
 
Join Date: April 10, 2001
Location: The Old Dominion
Posts: 1,521
Al, I agree completely. Am I allowed to grump that it shouldn't be so??
__________________
"...A humble and contrite heart, O God, thou wilt not despise." Ps. li

"When law and morality contradict each other, the citizen has the cruel alternative of either losing his moral sense or losing his respect for the law." —Frederic Bastiat
Mr. James is offline  
Old November 9, 2012, 10:50 PM   #5
Tom Servo
Staff
 
Join Date: September 27, 2008
Location: Foothills of the Appalachians
Posts: 10,253
I know of no way we could really successfully challenge the NICS system.

Flame away, but it's one of those "common sense" things we just have to live with. It would have to be replaced with something even more onerous if it were to be repealed.
__________________
In the depth of winter I finally learned that there was in me an invincible summer.
--Albert Camus
Tom Servo is offline  
Old November 9, 2012, 11:16 PM   #6
dogtown tom
Senior Member
 
Join Date: January 23, 2006
Location: Plano, Texas
Posts: 1,516
Don't forget.............NICS replaced the waiting period required by previous law.

Would you rather have to wait five days or take your gun home today?
__________________
Need a FFL in north Dallas/Plano/Allen/Frisco/McKinney ? Just EMAIL me.

$20 transfers ($10 for CHL, active military,police,fire or schoolteachers)
dogtown tom is offline  
Old November 9, 2012, 11:54 PM   #7
cslinger
Senior Member
 
Join Date: July 14, 2002
Location: Nashville, TN
Posts: 952
Hell I will be the pariah here and say I personally wish it was open in some way shape or form for individuals to use. I have no issue with an instant (in most cases) background check.
__________________
"Is there anyway I can write my local gun store off on my taxes as dependents?"
cslinger is offline  
Old November 10, 2012, 12:26 AM   #8
Tom Servo
Staff
 
Join Date: September 27, 2008
Location: Foothills of the Appalachians
Posts: 10,253
Quote:
Hell I will be the pariah here and say I personally wish it was open in some way shape or form for individuals to use.
Nope, sorry. Dealers need the system to operate, and they don't need it getting congested with everyone calling in background checks on themselves.
__________________
In the depth of winter I finally learned that there was in me an invincible summer.
--Albert Camus
Tom Servo is offline  
Old November 10, 2012, 10:29 AM   #9
David13
Senior Member
 
Join Date: November 2, 2012
Location: Los Angeles
Posts: 243
Jeep
I don't really think due process will prevent too much of anything. I think due process is generally defined as 'notice, and an opportunity to be heard'.
dc
David13 is offline  
Old November 10, 2012, 10:51 AM   #10
Al Norris
Staff
 
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,311
Quote:
Originally Posted by Tom Servo
Nope, sorry. Dealers need the system to operate, and they don't need it getting congested with everyone calling in background checks on themselves.
That requirement is only due to the action of law. Remove that law, and dealers will not require it. Circular argument.

What surprises me is that it hasn't been expanded to include private transfers. That is what some of the anti-gunners, even those of the rational left, call a "common sense" gun law.
__________________
National listings of the Current 2A Cases.
Al Norris is offline  
Old November 10, 2012, 11:01 AM   #11
jeepstrapped
Senior Member
 
Join Date: March 22, 2009
Location: SD
Posts: 141
With respect to Due Process I was thinking, but not clearly explaining, that it seems that the burden of proving innocence falls on the individual denied. That is, people that get denied have to follow an appeals process to obtain, or regain, their Second Amendment rights. It seems to be an inequity in the system.

Then again I may be wrong.

I would prefer that when people are denied by NICS, that the burden should be on NICS to inform the individual in writing why they were denied.

I haven't been denied, so haven't gone through an NICS appeals process, but it seems to be somewhat an onerous task for someone to undergo whose denial was without merit.

Maybe I'm just whistling in the wind.
jeepstrapped is offline  
Old November 10, 2012, 03:06 PM   #12
drail
Junior member
 
Join Date: February 2, 2008
Posts: 3,150
How about the "requirement" of providing the Feds with precisely the information they need to convict you by filling out a "form". (before they convict you) The Stayes really need to get the Fed back under the control the Constitution was supposed to provide them.
drail is offline  
Old November 10, 2012, 05:53 PM   #13
BGutzman
Senior Member
 
Join Date: December 4, 2009
Location: Frozen Tundra
Posts: 2,414
Im not sure that the law is above being stuck down. For myself I haven't so much as a speeding ticket in years and years and the last time I bought a gun it took 9 days of waiting prior to being allowed to purchase.

To me that seems to be an infringement. No it wasn't earth shattering but it certainly isn't right either.

Will it be defeated, no probably not, is it right, no but I have bigger fish to fry even if I'm less than appreciative of the process.
__________________
Molon Labe
BGutzman is offline  
Old November 10, 2012, 10:21 PM   #14
Al Norris
Staff
 
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,311
There is only one waiting period associated with the NICS check, and that only if the NICS "proceed" reply is not immediate (no "deny" after 3 business days - technically, you can proceed, although many FFL's will not, out of caution for their own license). See 18 USC § 922(t)(1)(B)(ii).

So any waiting period, is a State law.
__________________
National listings of the Current 2A Cases.
Al Norris is offline  
Old November 10, 2012, 11:31 PM   #15
wayneinFL
Senior Member
 
Join Date: December 18, 2004
Posts: 1,934
It would simplify things quite a bit if we could keep dangerous criminals in prison until they are rehabilitated and have paid their debt to society.
wayneinFL is offline  
Old November 11, 2012, 05:09 PM   #16
Nickel Plated
Senior Member
 
Join Date: January 17, 2010
Location: Brooklyn, NYC
Posts: 531
IDK how easy it would be to show that the NICS system infringes on the right to get a gun. As I understand it, a denial from NICS does not bar you from buying a gun. It just bars the FFL from selling to you.

If NICS denies you, but you are not infact a prohibited person. Say they confused you with someone else. You could just go outside and buy a gun in a FTF sale. Totally legal. So a NICS denial doesn't automatically make you prohibited by accusing you of being a criminal.

Quote:
It would simplify things quite a bit if we could keep dangerous criminals in prison until they are rehabilitated and have paid their debt to society.
And how do you suppose we know when they are truly rehabilitated? Read their minds?
The reason we have limits on prison sentences is so the warden can't just keep you there indefinitely because he doesn't like you.
You know what they say about letting 100 guilty men go free to avoid 1 innocent man being imprisoned.
Nickel Plated is offline  
Old November 11, 2012, 07:54 PM   #17
BarryLee
Senior Member
 
Join Date: July 29, 2010
Location: The ATL (OTP)
Posts: 2,719
So, not sure exactly how NICS works if it is a database that includes the names of prohibited individuals or a program that links to other databases that contains these names.

Either way it would seem if anything was unconstitutional it would be the process that adds your name to the database not the actual database itself.
__________________
A major source of objection to a free economy is precisely that it ... gives people what they want instead of what a particular group thinks they ought to want. Underlying most arguments against the free market is a lack of belief in freedom itself.
- Milton Friedman
BarryLee is offline  
Old November 11, 2012, 08:16 PM   #18
wayneinFL
Senior Member
 
Join Date: December 18, 2004
Posts: 1,934
Quote:
Quote:
Quote:
It would simplify things quite a bit if we could keep dangerous criminals in prison until they are rehabilitated and have paid their debt to society.
And how do you suppose we know when they are truly rehabilitated? Read their minds?
The reason we have limits on prison sentences is so the warden can't just keep you there indefinitely because he doesn't like you.
You know what they say about letting 100 guilty men go free to avoid 1 innocent man being imprisoned.
We can't be 100% sure anyone is rehabilitated. And we can't be 100% sure that people who are qualifying for firearm purchases aren't dangerous either. You aren't reading your mind when you buy a firearm, do we?

We need to look at what will effectively rehabilitate criminals. If they're getting out with unacceptable recidivism rates, then we need to keep them in there longer. When and if they get out they should have rights restored. If I can't trust the guy with a gun I don't want him roaming the streets with my wife and children.

Would a few slip through the cracks? Of course. They already are, or we wouldn't have a homicide rate at all.
wayneinFL is offline  
Old November 11, 2012, 08:19 PM   #19
Lawmaker
Member
 
Join Date: September 23, 2011
Posts: 29
I wish in a private FTF transfer that I could run a check.
Lawmaker is offline  
Old November 12, 2012, 12:40 AM   #20
kilimanjaro
Senior Member
 
Join Date: November 23, 2009
Posts: 1,810
What is the constitutional question before the court? That a background check infringes on the right of felons to keep and bear arms? Not sure of what basis anyone would have to challenge the NICS process. If you are not a felon or mental defective, you can appeal a denial, that's your due process at work, so your rights remain.
kilimanjaro is offline  
Old November 12, 2012, 09:38 AM   #21
jeepstrapped
Senior Member
 
Join Date: March 22, 2009
Location: SD
Posts: 141
Thanks for the feedback, I appreciate it.
jeepstrapped is offline  
Old November 12, 2012, 10:11 AM   #22
Nickel Plated
Senior Member
 
Join Date: January 17, 2010
Location: Brooklyn, NYC
Posts: 531
Quote:
If you are not a felon or mental defective, you can appeal a denial, that's your due process at work, so your rights remain.
Problem is you don't get your gun until after the appeal has been approved. In essence guilty until proven innocent.

Quote:
I wish in a private FTF transfer that I could run a check.
I'm hoping you mean that as an optional thing for whoever feels like doing it. Making mandatory FTF NICS checks work would involve some very serious infringements.

Quote:
We need to look at what will effectively rehabilitate criminals. If they're getting out with unacceptable recidivism rates, then we need to keep them in there longer.
What exactly does that do? Let them hang around their criminal buddies that much longer.
Perhaps the "rehabilitation" system should be more focused on actually rehabilitating people and not just leaving them to rot in a cell for 6 or 7 years.
When you pull someone out of normal society for near a decade and then kick them back in again with nothing to their name and no way of reintegrating again, it's surprising the recidivism rate isn't 100%.
Nickel Plated is offline  
Old November 13, 2012, 05:32 PM   #23
Gaerek
Senior Member
 
Join Date: October 3, 2012
Location: Arizona
Posts: 939
Quote:
Problem is you don't get your gun until after the appeal has been approved. In essence guilty until proven innocent.
Guilty of what? Innocent of what? There is no guilt or innocence associated with a NICS check. Are you incarcerated if your NICS check comes back as denied? Do you have to pay a fine? Are you now a felon (if you weren't one before)? All it's doing is seeing if you are a prohibited possessor or not. There is no such thing as a perfect system. Some people who should be prohibited are going to be cleared by NICS. Some people who have never committed so much as a traffic violation are going to get denied. That's why there is an appeal process. And I for one, am glad there is an appeal process.

If you can find a better solution to keep prohibited possessors from buying firearms from an FFL, I'm all ears. Personally, I'm ok with the system. It helps keep (it won't stop, of course) people who shouldn't have guns from getting guns. If you don't want a check, and are in a state where you can get one relatively easily, get your CCW permit. I know pf at least one person that got it just to keep them from getting "NICS'd" every time they add to their collection.

I really wish people would stop using the guilty until proven innocent cliche in places where it really doesn't apply.
Gaerek is offline  
Old November 13, 2012, 05:52 PM   #24
BGutzman
Senior Member
 
Join Date: December 4, 2009
Location: Frozen Tundra
Posts: 2,414
Strictly speaking I don't think the founding fathers ever intended for felons in general to still be breathing after a felony conviction. I would argue that if your not in prison and you are mentally competent to be on the street that you have a right to a firearm. (I am not a lawyer and what I am giving here is my opinion on a constitutional issue. This is not in any way advice for anyone to violate the law.)

I would argue that any delay in a lawful person being able to purchase a gun is unconstitutional. The federal government exist to preserve freedom, defend the nation and ensure fair trade. I do not believe the founders ever intended the federal government to be in the business of regulating guns and gun usage.

Freedom didn't come with a guarantee of protection from all harm what it came with was the guaranteed right to bear arms so you could protect yourself and your family. I don't think that as a matter of rights that felons permanently loose rights just because of a conviction. If they have the right to live among the rest of us then there rights must have been in some way restored, either that or we need a lot more prison capacity.

Yes, I know I'm an idealist but those that came before us lived and died to fight for ideals that often IMHO get walked upon today.
__________________
Molon Labe
BGutzman is offline  
Old November 13, 2012, 06:28 PM   #25
Gaerek
Senior Member
 
Join Date: October 3, 2012
Location: Arizona
Posts: 939
Quote:
Strictly speaking I don't think the founding fathers ever intended for felons in general to still be breathing after a felony conviction. I would argue that if your not in prison and you are mentally competent to be on the street that you have a right to a firearm. (I am not a lawyer and what I am giving here is my opinion on a constitutional issue. This is not in any way advice for anyone to violate the law.)

I would argue that any delay in a lawful person being able to purchase a gun is unconstitutional. The federal government exist to preserve freedom, defend the nation and ensure fair trade. I do not believe the founders ever intended the federal government to be in the business of regulating guns and gun usage.

Freedom didn't come with a guarantee of protection from all harm what it came with was the guaranteed right to bear arms so you could protect yourself and your family. I don't think that as a matter of rights that felons permanently loose rights just because of a conviction. If they have the right to live among the rest of us then there rights must have been in some way restored, either that or we need a lot more prison capacity.

Yes, I know I'm an idealist but those that came before us lived and died to fight for ideals that often IMHO get walked upon today.
I would say I mostly agree with you here (what part of "shall not be infringed" do politicians not understand?). I won't nitpick what I don't agree with, since that would most likely be off topic. Unfortunately, we have what we have, and it's very likely it won't go away. Having said that, my point was merely that the poster I quoted should be glad that there is a process to appeal. NICS does a good job at what it's intended to do. Whether we should have the system at all? Well, that's another discussion altogether.
Gaerek is offline  
Reply

Thread Tools

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off

Forum Jump


All times are GMT -5. The time now is 04:53 AM.


Powered by vBulletin® Version 3.8.7
Copyright ©2000 - 2014, vBulletin Solutions, Inc.
This site and contents, including all posts, Copyright © 1998-2014 S.W.A.T. Magazine
Copyright Complaints: Please direct DMCA Takedown Notices to the registered agent: thefiringline.com
Contact Us
Page generated in 0.12228 seconds with 7 queries