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Old April 16, 2013, 12:43 PM   #176
Brian Pfleuger
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Quote:
Originally Posted by Jim Dandy
That is not what has been held.

A transaction in one state between residents of two separate states has been held interstate commerce, as has any transaction that might AFFECT interstate commerce- i.e. Heart of Atlanta Motel Inc. v. United States, 379 U.S. 241
Which is why the Commerce Clause is the most abused power in the COTUS.

ANYTHING is under national regulation. I buy flour from out of state. The Feds can regulate my pizza.

The farmer up the road sells milk that ends up in another state, therefore if he sells milk to me, which is decidedly NOT "interstate", he is NOT selling that very same milk out of state which, VIOLA!, suddenly effects interstate commerce so it IS interstate commerce!

Ridiculous! Asinine! Stupid!
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Old April 16, 2013, 12:44 PM   #177
zukiphile
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Quote:
Originally Posted by Kochman
@Z
You're exaggerating the situation.
You're checking an already established status with a 4473. I think that is warranted for guns...
I have not put words in your mouth or exaggerated the situation. I have responded to your text.

Why do not we conduct background checks prior to permitting people to vote?
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Old April 16, 2013, 12:49 PM   #178
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Why do not we conduct background checks prior to permitting people to vote?
Well, I'm pretty sure that would be found unconstitutional.
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Old April 16, 2013, 12:52 PM   #179
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Jim, that is incorrect. Legislation and executive administrative action are not due process, i.e. an adjudication in which one is permitted to present the merits of his eventual position.
We may be having an internet-based miscommunication-

They are prohibited through due process. There's a law that says felons, etc.

They have their day in "court" where they may contest mental competency, or criminal proceedings.

That's the due process that makes them prohibited.

The commerce clause allows the Federal Govt to prevent those so prohibited from engaging in the commerce.
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Old April 16, 2013, 01:07 PM   #180
zukiphile
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Quote:
Originally Posted by Tom Servo
Well, I'm pretty sure that would be found unconstitutional.
As am I.

Quote:
Originally Posted by Brian Pfleuger
Which is why the Commerce Clause is the most abused power in the COTUS.
It may make me seem somewhat simple, but this is why I have a great affection for the dissent of Clarence Thomas in the Raich. Beginning an analysis of the interstate commerce clause by defining "interstate" and "commerce" is a succinct, simple, direct and persuasive argument.

The alternative, we have now, a milieu in which laymen can get turned around easily and a lot of test language from case law is draped all over the text of the Constitution, does not encourage fidelity to the terms of the document.

That is not to suggest malevolence or deception. I believe that people who pursue their desired ends, such as federally enforced controls on the price of wheat, generally do so with a good faith belief that their scheme will somehow make things better. The problem we witness, and that is so well illustrated by commerce clause jurisprudence, is that once we decide intra-state non-commerce is the subject of interstate commerce, once we define a way the meaning of the words in the document, we cripple its meaning and its protections.

Last edited by zukiphile; April 17, 2013 at 08:04 AM.
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Old April 16, 2013, 01:23 PM   #181
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Which is why the Commerce Clause is the most abused power in the COTUS.

ANYTHING is under national regulation. I buy flour from out of state. The Feds can regulate my pizza.

The farmer up the road sells milk that ends up in another state, therefore if he sells milk to me, which is decidedly NOT "interstate", he is NOT selling that very same milk out of state which, VIOLA!, suddenly effects interstate commerce so it IS interstate commerce!

Ridiculous! Asinine! Stupid!
And currently the law. I'm not saying it's not abused, I'm just saying it's the law. And I see both sides of it. Sure while that 1911 is sitting on a shelf in BFE, Somewhere, USA it's most obvious effect is INTRA-state commerce, but while it's sitting there, the store owner isn't buying another one from Really Cool Arms, Inc. So it's still in the interstate commerce pipeline.
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Old April 16, 2013, 01:23 PM   #182
zukiphile
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Quote:
Originally Posted by JimDandy
We may be having an internet-based miscommunication-

They are prohibited through due process. There's a law that says felons, etc.

They have their day in "court" where they may contest mental competency, or criminal proceedings.

That's the due process that makes them prohibited.

The commerce clause allows the Federal Govt to prevent those so prohibited from engaging in the commerce.
Jim, it is not my purpose to be unduly argumentative, but I am not sure what your analysis is so is difficult for me to concur with it.

Fifth amendment due process does not have a lot of interplay with the commerce clause as far as I know. The due process involved can and does apply to curtail the exercise of any number of rights that are otherwise federally guaranteed to an individual, including but not limited to travel, voting and firearm ownership. But these do not pertain primarily to commerce.

My apologies if I have been opaque or missed an obvious point.
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Old April 16, 2013, 01:27 PM   #183
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I don't think there's anything to apologize for Zukiphile, the internet does not convey tone, or tempo so misunderstandings are easy.

I'm saying it's a two step process.

Becoming prohibited is one step- the due process step. You get convicted, or adjudicated mentally deficient in a manner proscribed by law.

Then the interstate commerce regulations piggy back on that step in a second step.
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Old April 16, 2013, 01:31 PM   #184
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Quote:
Originally Posted by JD
I'm saying it's a two step process.

Becoming prohibited is one step- the due process step. You get convicted, or adjudicated mentally deficient in a manner proscribed by law.

Then the interstate commerce regulations piggy back on that step in a second step.
Thank you for the clarity. I do not agree with your description. There is no second step.

If you are an adjudicated felony, your fundamental liberties, including your right to travel, vote and possess a firearm may be curtailed. There is no second step involved and commerce need not be a part of the analysis.
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Old April 16, 2013, 01:31 PM   #185
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Except, JimDandy, that such cases as "Failure to Appear" when a summons was never sent to a correct address nor the attorney of record (which happened to my ex-wife and had an NICS impact) will result in prohibition, without any actual due process observed.

You assume due process; this is not a safe assumption.
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Old April 16, 2013, 01:33 PM   #186
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Wow! I check out for just a little while to do some work, and a whole lot happens. I've perused most of the posts, but don't really have time to address each one. Accordingly, I'll pick and choose a few:

The Preamble:
I got my law license in 2002, and have spent my time since then working as a litigator. As MLeake pointed out, I'm a city attorney. That means that a great deal of my time is spent on constitutional issues. Never once have I seen The Preamble cited in a case as substantive authority. By no means am I throwing out The Preamble, but it doesn't do what Kochman thinks it does. I even ran a Westlaw search on it prior to writing this just to be sure I hadn't overlooked anything major in ConLaw.

Doing the Right Thing:
Kochman, I guess you think that all you're asking is that people "do the right thing." That's not what you've proposed, though. You've proposed that gun owners be subjected to either civil or criminal liability for failing to ask the government if the buyer of my personal property is allowed to own it. You're proposed that the seller be required to hand over a fair amount of private information to a total stranger.

I entirely agree that we, as gun owners, must be responsible. If I show up to sell a gun and the buyer is covered in what appear to be gang or prison tattoos, that needs to send up red flags. If he or she drives a car with out-of-state tags, that needs to send up flags. If, for whatever reason, the buyer makes the hair on the back of my neck stand up, that needs to send up some flags.

What I find most bothersome, Kochman, is that you have started from the premise that "I don't think responsible gun owners refuse to have background checks. . . . I genuinely believe it to be morally correct... If you sell guns to unknown people, without a check, in this day and age, you are an irresponsible gun owner." reasonable gun control." My impression from that quote is that it would never have made any difference how many statistics or how many legal arguments were made by those of us who oppose universal background checks.

Most People:
No, I'm not "most people." MLeake and I, combined, don't constitute "most people." Truth be told, I don't care if we do. That's the messy thing about the Bill of Rights. I have often told my students that "the First Amendment is as undemocratic as they come." I am horribly, awfully undemocratic when it comes to my Constitutional Rights. When it comes to the Rights enumerated under the Bill of Rights, they are not always subject to the popular vote. In fact, I would submit that the Bill of Rights is there to protect the individual from mob rule.
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Old April 16, 2013, 01:49 PM   #187
JimDandy
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Thank you for the clarity. I do not agree with your description. There is no second step.

If you are an adjudicated felony, your fundamental liberties, including your right to travel, vote and possess a firearm may be curtailed. There is no second step involved and commerce need not be a part of the analysis.
You are denied your liberties by the conviction yes.

But Commerce must be part of the analysis, because acquiring a firearm is commerce.
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Old April 16, 2013, 01:53 PM   #188
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Except, JimDandy, that such cases as "Failure to Appear" when a summons was never sent to a correct address nor the attorney of record (which happened to my ex-wife and had an NICS impact) will result in prohibition, without any actual due process observed.

You assume due process; this is not a safe assumption.
Will that prohibition be removed when you contest/appeal the error? Due process is a two-way street. The government is made up of human beings, inherently including that human error. Someone served an incorrect search warrant will likely still get his house searched. That doesn't mean law enforcement can use what they find.

Some people are erroneously flagged. They can open an appeal file.
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Old April 16, 2013, 02:15 PM   #189
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They can, but that often incurs costs such as court fees and lawyer's bills.

The onus should be on the government functionary, and not on the citizen.
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Old April 16, 2013, 02:22 PM   #190
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I agree with MLeake here... the costs should be free, filed through a federal office, much like when the "indigent" request service from a deputy service, etc...
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Old April 16, 2013, 02:22 PM   #191
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They can, but that often incurs costs such as court fees and lawyer's bills.
And when you win, can you have the government compensate for those costs?
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Old April 16, 2013, 02:54 PM   #192
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Quote:
Originally Posted by JimDandy
And when you win, can you have the government compensate for those costs?
You may have latched onto an important legal innovation.

A categorical guarantee of civil liberties can carry high and sometimes tragic costs. These costs can be reduced by permitting the government the authority to make any law, rule, regulation or discretionary call that might reasonably be seen to be for the better. Anyone who believes that the federal government has exercised its authority in a way that is not for the better can litigate that matter with the federal government. If the federal government is wrong, it can pay the challenger's attorney's fees, and everything will be remedied.

If someone in the government sees a need to restrain you from publishing a letter to the editor of your local paper, we should let the government do that, but give you access to the courts so that you can prove the merits of your letter to the editor. If the court finds that your letter really should have been published, then it can issue that judgment and decide how much of your attorney's fees should be paid. Then, whenever the court issues that judgment, probably within one or two years if you have an attentive judge, you can send that letter to the editor and ask the paper if they want to publish it.

This method would have a lot of obvious benefit in fourth amendment applications. The police would no longer be frustrated by having to articulate a reasonable basis for a search. The police would be free to search as they please, and if you do not like it, you can find a lawyer who will file a suit against the police. If you win, the judge will probably include in his judgment that the city for whom the police worked will pay your attorney's fees.

Other applications of this principle would have a rarer but nonetheless real benefit. Some people exercise their religious freedom with what would appear to be only the most slight amount of wisdom. We could have the government abridge religious freedoms when appropriate, and leave it to the adherents of the aggrieved religious bodies to initiate litigation with the government.

Some will be all bothered about having those civil liberties "denied" while their petitions sit on the court's docket, but I do not think that would be an undue burden. I do not see how any of that could go badly.

Last edited by zukiphile; April 16, 2013 at 03:14 PM.
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Old April 16, 2013, 03:15 PM   #193
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zukiphile, thanks for the satire. You played that one nice and dry; I like it.

JimDandy, first, your plan assumes the citizen has the financial means to challenge the ruling in the first place, since your plan assumes compensation after the win. I don't know about you, but I find initial lawyer's fees and court costs to be a consideration whenever I am tempted to challenge anything or sue anybody, and I live fairly comfortably.

For somebody on the lower side of average on the economic scale, your plan would not work at all, as they would very likely not have the means to file a challenge in the first place.

Second, your assumption is that the incurred delay of the right, and necessity to challenge the ruling, is no big deal. To some of us, it is a very big deal.

Quite frankly, if you wanted to propose having the government set up an OPTIONAL system, that would allow private sellers to conduct NICS checks if they wished, and that would confer indemnity against future lawsuits if a buyer who passed the check went on to do a horrible thing with the firearm, I would not have a problem with that.

It would accomplish what you desire, which is to enable private sellers to check prospective buyers if they were at all unsure, while it would not require participation. There would be a carrot (indemnity) but no stick. That would be ok with me, or it might depending on cost of establishing and operating the system.

That is not what has been proposed. I do not, can not, and will not support such a mandatory system; nor can I countenance ceding so much power to the feds.

EDIT: It has been pointed out to me, and I had been thinking about this too, that such a plan could also be bad. As things currently stand, we are NOT generally liable for the actions others take with things they buy from us. For instance, if a man buys my truck, and then wrecks into a school bus, that should not come back on me.

Having the system "indemnify" sellers would imply that they otherwise should bear a liability that they don't bear. So, I don't like the indemnity bit on second thought, but would still be ok with an OPTIONAL system, if costs were supportable.

Last edited by MLeake; April 16, 2013 at 03:39 PM.
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Old April 16, 2013, 03:20 PM   #194
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Kochman, you may not wish to compare the US to the USSR, but you also did not acknowledge my references to:

the US, under Jackson and Taylor (Trail of Tears);

the US, under Benjamin Harrison (Wounded Knee);

the US, under Teddy Roosevelt (creation of Panama; seizure of the Canal Zone);

the US, under Wilson, Harding, Coolidge, and FDR (Anti-union government goon squads; Banana Wars, protecting US interests, primarily Dole Fruit and US Sugar; relocation and internment of Japanese Americans);

the US, under Truman and Eisenhower (Red Scare; McCarthyism).

My point being, we have had such things happen here, on various scales, or created overseas under our auspices.

Additionally, I would suggest that the two primary reasons the US is not comparable to the USSR are the 1st and 2nd Amendments.
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Old April 16, 2013, 03:25 PM   #195
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Quote:
zukiphile, thanks for the satire. You played that one nice and dry; I like it.
I found it a bit insulting when I haven't been, but whatever floats your boat.

Quote:
JimDandy, first, your plan assumes the citizen has the financial means to challenge the ruling in the first place, since your plan assumes compensation after the win.
I believe there is also a "program" in place for this. Something along the lines of in pauperis though, again, as a layman, I may have the wrong terminology.
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Old April 16, 2013, 03:31 PM   #196
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If someone in the government sees a need to restrain you from publishing a letter to the editor of your local paper, we should let the government do that, but give you access to the courts so that you can prove the merits of your letter to the editor. If the court finds that your letter really should have been published, then it can issue that judgment and decide how much of your attorney's fees should be paid. Then, whenever the court issues that judgment, probably within one or two years if you have an attentive judge, you can send that letter to the editor and ask the paper if they want to publish it.
And how is this any different (reductio ad absurdum aside) than any other government-citizen interaction today? When they search your house, because some dyslexic clerk typed the wrong address into the no-knock warrant... they search your house, you sue them, they replace your door, and anything else they may have broken, and probably cover your court costs.
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Old April 16, 2013, 03:31 PM   #197
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I think you are referring to public defenders being appointed to indigent accused suspects.

There are Legal Aid organizations and there are lawyers who will take pro bono cases, but there is no guarantee that any Legal Aid office or pro bono lawyer will represent any given applicant.

I know of no system that guarantees a lawyer to any person who chooses to sue the government, if they can prove insolvency. Spats may be able to offer some insights, here.

I would also suggest to you that the people who would most need such a system would be the least likely to know how to use it, or to find participating offices and attorneys.

I've said it before, and I'll say it again - the main thing gun control laws in general, and the proposed laws in particular, do is to keep the little people from lawfully keeping and bearing firearms. That many of those little people are darker in complexion is not necessarily incidental to the construct (noting that initial gun control laws in the US were designed to keep freed slaves from bearing arms, and that New York's Sullivan Act was designed to keep unruly mediterranean types - such as my grandfather and great uncles - from being able to defend themselves against government backed goon squads... actually, those goon squads were often made up of city police officers).
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Old April 16, 2013, 03:33 PM   #198
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JimDandy, before they go into the house to conduct the search, they either have a warrant in hand, or they are in hot pursuit of a dangerous felon whom they observed enter the house, or they have reason to suspect somebody in the house is injured or in peril.

They can't just decide to search a bunch of houses, and then handle the lawsuits later.


Edit: Also, while you found zukiphile's post to be insulting, you might instead have considered that it was a direct comparison. He was discussing government preemption of Constitutionally guaranteed rights; he simply changed the discussion to the 1st Amendment, instead of the 2nd, and made the very arguments that people have made for UBCs in this thread.

If you find that insulting, perhaps you should think about it some more.

Last edited by MLeake; April 16, 2013 at 03:41 PM.
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Old April 16, 2013, 03:40 PM   #199
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Jim, it is not my intent to insult or belittle. You have been courteous and I would regret it if you came to feel wronged by an energetic and candid exchange.

Quote:
Originally Posted by JimDandy
And how is this any different (reductio ad absurdum aside) than any other government-citizen interaction today?
I resist the notion that I have reduced the principal in the proposal to an absurdity. It is an absurdity as stated to eliminate a federal protection of a right on the basis that one can sue the government where the government abuses the authority it has been granted.

Quote:
Originally Posted by JimDandy
When they search your house, because some dyslexic clerk typed the wrong address into the no-knock warrant... they search your house, you sue them, they replace your door, and anything else they may have broken, and probably cover your court costs.
In the scenario you describe, the state has obtained a warrant from a judge. That a judge signed on to a clerical error does not convert the existence of that error into a general elimination of fourth amendment protections, i.e. against warrantless searches.
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Old April 16, 2013, 03:41 PM   #200
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No, JimDandy has the right term. In forma pauperis ("the pauper's road") is a way by which the poor can file a civil lawsuit without paying the fee and have the summons served using the local deputies, or in the case of federal courts, by the US Marshall Service. It doesn't guarantee a lawyer, but it allows an indigent Plaintiff access to the court system without payment of fees.

Quote:
Originally Posted by JimDandy
Quote:
If someone in the government sees a need to restrain you from publishing a letter to the editor of your local paper, we should let the government do that, but give you access to the courts so that you can prove the merits of your letter to the editor. If the court finds that your letter really should have been published, then it can issue that judgment and decide how much of your attorney's fees should be paid. Then, whenever the court issues that judgment, probably within one or two years if you have an attentive judge, you can send that letter to the editor and ask the paper if they want to publish it.
And how is this any different (reductio ad absurdum aside) than any other government-citizen interaction today? When they search your house, because some dyslexic clerk typed the wrong address into the no-knock warrant... they search your house, you sue them, they replace your door, and anything else they may have broken, and probably cover your court costs.
In the first instance, it looks like the government gets to suppress your letter until after a court determination that it's OK to publish. In your example JD, there's a no-nock warrant, so a court has gotten involved prior to the execution of the warrant.

Also, if you sue the police for an A4 violation and win, it will often be for more than the cost of the door and court costs. The constitutional violation alone is considered "compensable injury."
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