Background checks - controversy - Page 16

JimDandy · April 17, 2013, 09:02 PM

Quote:

As a general matter, no one has a right to a particular job.

How does that interact with Edward R. Holtz v. State of New York, et. al.

**Spats McGee** · April 17, 2013, 09:11 PM

Well, Jim, my analogy wasn't perfect, I'll grant you. However, the Civil Rights Act of 1964 protects certain classes of persons from discrimination in the provision of public services (like whether FFLs will provide services to protected classes of persons). There are statutory rights, and there are constitutional rights. Employment rights are based on the Equal Protection clause of the 14th Amendment, and (at least in part) extended to us by statute.

However, there is no constitutional right to a particular job. Only not to be discriminated on in the terms and conditions of employment based upon membership in a protected class. Honest. I'm just too tired to dig up citations right now. You'll have to wait until tomorrow.

As far as Edward R. Holtz v. State of New York, I don't know. It looks like a state court proceeding, and I can't find it in Westlaw. From what I can tell, that might be a state court proceeding, which means that a good chunk of it might be based on NY state law. That's a different question from federal constitutional law.

Evan Thomas · April 17, 2013, 09:14 PM

Quote:

As far as Edward R. Holtz v. State of New York, I don't know. It looks like a state court proceeding, and I can't find it in Westlaw.

From the description in the linked thread, it's a suit that was filed at the end of February, so it's a rather long way from being something one can cite as a precedent -- for much of anything.

JimDandy · April 17, 2013, 09:19 PM

Right, that's the Tresmond case against the Safe Act, which is somehow bringing in Right to Work, and Slaughterhouse.

Edit: I wasn't looking to cite that, so much as wondering what it's citing, and how that would interact with this question.

ROCK6 · April 18, 2013, 06:11 AM

I’ve read through many of these and I think the focus is inadvertently on the seller and law-abiding purchaser; why not the criminal or those restricted due to mental or other gun-prohibitive conditions?

I know this goes along with a voter ID card and the ACLU would flip their lid, but how about those who have lost their 2A rights get a small symbol on their driver’s license or other state recognized ID card prohibiting them from owning or purchasing firearms.

Sure, I would not knowingly sell any firearm to a criminal, but I shouldn’t have to jump through hoops just so it’s “seller beware”; that’s absurd and I wouldn’t want to maintain records of sales for the rest of my life. Likewise, as a buyer, I shouldn’t have to undergo unreasonable burdens just to exercise my rights.

In my world, I show you a valid driver’s license without the gun-restriction symbol and we make the sale. If the ID looks sketchy, you have the right not to make the sale. Put the burden on those who have lost their rights, not on those who obey the law.

The current background system doesn’t work and just as mentioned, failed NICS or background checks are rarely followed up on and even fewer prosecutions.

First case in point: I was denied a firearm sale when I moved from KS to TX. The burden was definitely on me to clear it all up and I underwent a more stringent background check and I’m now part of the Voluntary Appeals File for my NICS checks because some jackass used my SSN while attempting to purchase a firearm in KS. Had I not pursed the attention to clear up this NICS red flag, there was no follow up or calls why I failed. If I was a criminal, I just move on to other sources…

Second case in point: I was recently renewing my FL CHL and was denied continued processing as I failed a background check. Understand, I’ve been Active Duty Army with a TS/SCI clearance for the past two decades and not even a speeding ticket on file for over a decade. Not that it matters, but FL found a red-flag on an arrest in WA state about five years ago (WA state is still my home of record even though I haven’t resided there in over 20 years)….the same time I was deployed to Iraq. NICS and the more encompassing NCIC help desks at the FBI level didn’t see anything and even the WA state police, country sheriff’s office and local PD of the alleged incident couldn’t explain the issue. An inverted or badly recorded incident somehow tagged me during some incident that wasn’t even an arrest (mistaken ID)…yet some FL state clerk found it (kudos to the clerk but an inadvertent anomaly). The criminal (not even touching on the mental health inclusion) background system is far from perfect with too many disparate system feeds and a poorly federated database that will always be prone to human error.

I just think your driver’s license or state-issued ID card should be your proof of gun ownership. If you’re a criminal, especially at local levels, your tagged and it should show on your driver’s license. If for any reason you lost your right to own a firearm due to charged criminal activity, the burden should be on you to clear it up and remove that restrictive symbol on your ID card. I would suspect that 97-98% of the population could legally own or purchase firearms; why burden them for the 1-2% of the population? Burden that 1-2%...

Now, during my FL CHL debacle, I did find the WA State “WATCH” on-line criminal checking system pretty cool. It did cost me $10, but like already mentioned, these are simple background checks to see if somebody has a criminal record. All that was needed was the full name and birth date. Of course, it just listed four or five others with similar names and birth dates close to mine, but none were even close…so according to that system and the print out, I wasn’t a criminal in WA State. Make a national system like that, accessible to everyone and make the “certificate” valid for a year and allow buyers to show the seller their non-criminal certificate before purchasing a firearm. I like the idea and it would allow you to check on yourself much like a credit check to make sure there are no “issues” prior to purchasing and it then puts the proof back on the buyer and not the seller. I would be in favor of a system like this as there are no records of the buyers, only records of the criminals who are prohibited from owning a firearm (it could also eventually include those with restrictive mental health diagnosis without violating privacy acts as only that individual would see the results). As a seller, someone shows me a valid certificate and a photo ID and I would be satisfied and the burden is less than a current 4473.

Of course this would fly in the face of the liberal goal of records tracking and registration, but it would allow the people to police themselves and the a national criminal data base would be easier to federate and manage vice a database of gun sales of law abiding citizens (again, only tracking 1-2% of the population instead of the 98-99% of the population).

Just some thoughts borne from my own personal frustration…

ROCK6

Kochman · April 18, 2013, 08:40 AM

This S 649 amendment getting shot down has led to LOTS of crybabying from the gun grabbing crowd... which, though I support certain forms of background checks, I find completely hilarious!
Just wanted to throw that in there.

cvc944 · April 18, 2013, 08:55 AM

Quote:

I know this goes along with a voter ID card and the ACLU would flip their lid, but how about those who have lost their 2A rights get a small symbol on their driver’s license or other state recognized ID card prohibiting them from owning or purchasing firearms.

Aside from the ACLU flipping their lids, Drivers Licenses are issued for 5 years. People can get into all sorts of trouble in that time, and that is the reason that background checks are good for only one day.

JimDandy · April 18, 2013, 09:00 AM

Quote:

I just think your driver’s license or state-issued ID card should be your proof of gun ownership. If you’re a criminal, especially at local levels, your tagged and it should show on your driver’s license. If for any reason you lost your right to own a firearm due to charged criminal activity, the burden should be on you to clear it up and remove that restrictive symbol on your ID card. I would suspect that 97-98% of the population could legally own or purchase firearms; why burden them for the 1-2% of the population? Burden that 1-2%...

How will you deal with forged licenses? This is the same problem one has using CCW's, certificates you print off the internet, and so on.

How about the guy who becomes a prohibited person, but doesn't lose their license? For possibly more than 4 years, they can have a "good" license but still be prohibited.

The best alternative I've seen is the certificate idea, IF you let me tack on to it. The buyer goes online to the FBI, gets a certificate with an authorization number. Go to the seller. Seller calls 1-800-GET-NICS or something similar- reads authorization number, and basic ID info(but not SSN or PII beyond name/address type stuff.) as on 4473 form, height, weight, ethnicity, & name (Also checked vs ID) This lets you verify the guy holding the certificate is the guy who is on the certificate, AND lets you make sure the certificate isn't photoshopped.

Quote:

I would suspect that 97-98% of the population could legally own or purchase firearms; why burden them for the 1-2% of the population? Burden that 1-2%...

I think you'd be surprised- 2.5% of the voting public were disenfranchised in a 2010 study. And we all know getting voting rights back is a WHOLE lot easier than firearms rights. The reason I make that point, is that most states return the franchise the moment your sentence is over. Those states that didn't showed between 5 to 10 times as many felons were "released" than incarcerated, so the firearms rights- JUST for felonies would easily be closer to 5% Tack on misdemeanor DV, and it could go even higher.. According to NICS, felons are the THIRD most populous category- falling behind Illegal aliens, and the mentally deficient.

ATW525 · April 18, 2013, 09:38 AM

Quote:

Aside from the ACLU flipping their lids, Drivers Licenses are issued for 5 years. People can get into all sorts of trouble in that time, and that is the reason that background checks are good for only one day.

How is it any different from people in some states being able to use their carry permits in lieu of a NICS check now?

Personally I think that tying NICS into state issued IDs could vastly streamline the process, even if there aren't special "prohibited person" IDs. Imagine if a NICS check is run when renewing driver's licenses and the results of that check are stored. You hand an FFL your license, they swipe into their system and that system returns a copy of your license photo and whether to Proceed or Deny (or Call, if the person has been flagged by the inclusion of new records since the last time the check was run).

JimDandy · April 18, 2013, 09:53 AM

ATF Permit Chart

To be honest, I'm not 100% comfortable with this either. I live in WA. My CPL is (apparently) eligible to replace the NICS check. My CPL came in the mail as a piece of paper. and I had to laminate the thing myself to protect it from the elements. It's WAY too counterfeitable to be used this way.

Evan Thomas · April 18, 2013, 10:40 AM

One unintended consequence of any system of universal background checks -- and I haven't heard it mentioned anywhere -- is simply that straw purchases will move into the realm of face-to-face sales. How hard would it be to have your girlfriend go online and get that piece of paper?

JimDandy · April 18, 2013, 10:44 AM

Aren't straw purchases already face to face? They aren't definitively so, but I can't imagine a practical situation involving a straw purchase that does not involve some sort of face to face transaction.

MLeake · April 18, 2013, 10:56 AM

Not necessarily; for handguns, yes, but for longarms, I believe an in-state FFL can ship to your house.

Or maybe that is only the CMP. They shipped my M1 to my home.

Evan Thomas · April 18, 2013, 10:56 AM

The face-to-face nature of the transaction isn't the relevant variable. As things stand, a straw purchase can only take place in a transaction involving an FFL, as those are the only ones for which a background check is required. If background checks were required for all transactions, there would also be straw purchasers buying from private sellers. It's the background check, not the face-to-face aspect of the transaction, that invites straw purchases. (Remember, too, that interstate, private sales don't have to be face-to-face; it's fine to ship a gun to a buyer who lives in your own state. I don't recall anything in the proposed UBC legislation that would alter that -- but I may be wrong.)

JimDandy · April 18, 2013, 11:05 AM

Quote:

Or maybe that is only the CMP. They shipped my M1 to my home.

The CMP is very special and unique. They don't run NICS checks from what I understand, through some assumption of you already passing one by joining approved firearms groups.

Quote:

(Remember, too, that interstate, private sales don't have to be face-to-face; it's fine to ship a gun to a buyer who lives in your own state. I don't recall anything in the proposed UBC legislation that would alter that -- but I may be wrong.)

I haven't seen anything that directly changes that either- Though the mechanics of an FFL NICS/4473 process may require verifying ID via State/Fed-issued photo card/ID i.e. License, Passport, State ID.

jimbob86 · April 18, 2013, 11:05 AM

Quote:

How is it any different from people in some states being able to use their carry permits in lieu of a NICS check now?

If you lose your permit, you have to turn it in. If you don't, they'll come get it.

They know who has permits- the cop that pulled me over for a headlight asked me for mine, as it came up when he ran my plates- and they know what will DQ you .......

JimDandy · April 18, 2013, 11:10 AM

Quote:

If you lose your permit, you have to turn it in. If you don't, they'll come get it.

Will they? Even California has a backlog for seizing guns, let alone permits.

ATW525 · April 18, 2013, 11:13 AM

Quote:

If you lose your permit, you have to turn it in. If you don't, they'll come get it.

But couldn't they just do the same for state IDs? If you do something to lose your gun rights you'd have to turn it in and have it replaced with one marking you as a prohibited person.

MLeake · April 18, 2013, 11:15 AM

Well, JimDandy, this may bring us back to the issue of preemption, and whether that is either truly a) attainable or b) desirable.

On the face of it, preventing homicides is an admirable goal.

The question is whether it is still admirable, if in order to attain any semblance of it we have to trample all over people's rights, or empower government to a degree which some find unacceptable.

The further question, if we decide we can accept trampling of rights and empowered government - which some of us can't, becomes how effective must preemption be in order for us to accept it?

So, if I were on the fence - and I am not, but we are speaking theoretically - I would still insist that in order for me to accept ANY infringement, I would want the government to have to prove how effective their program would actually be.

Instead, we get a lot of "Well, common sense says..."

We have not yet received the "In order to know what's in it, we have to pass it," argument, but I would not be surprised if that were trotted out.

Most of the debate, though, has revolved around the "feelings" of people, instead of the facts of what they want to do.

zukiphile · April 18, 2013, 11:20 AM

Quote:

Originally Posted by MLeake

The further question, if we decide we can accept trampling of rights and empowered government - which some of us can't, becomes how effective must preemption be in order for us to accept it?

This is a subsidiary question, but important.

Does anyone believe that a federal "no gun" list will prevent violent felons from obtaining common items, here firearms?

When drafting, it is easy to get caught up in the wording and lose sight of the fact that even the best wording has no effect whatsoever if the proposal is not substantially enforceable.

JimDandy · April 18, 2013, 11:28 AM

Quote:

On the face of it, preventing homicides is an admirable goal.

Admirable, and certainly in the government interest, but not the goal I would "state".

I'd stick with preventing the transfer of firearms to prohibited persons. Not all firearm use results in homicide, or even shots fired. Nor would gun control laws have much effect on the other methods of homicide. Plus we have to remain either narrowly tailored, or so broad in scope as to not be targeting firearms- like Pittman-Robertson.

Quote:

Does anyone believe that a federal "no gun" list will prevent violent felons from obtaining common items, here firearms?

When they're being stolen from police vehicles, and LEO's are begin mugged for their side-arms? No. But it's something of a post hoc propter hoc argument to say that criminals still getting firearms means background checks are incapable of preventing SOME of the flow of firearms to prohibited persons.

zukiphile · April 18, 2013, 11:37 AM

Quote:

Originally Posted by JD

When they're being stolen from police vehicles, and LEO's are begin mugged for their side-arms? No. But it's something of a post hoc propter hoc argument to say that criminals still getting firearms means background checks are incapable of preventing SOME of the flow of firearms to prohibited persons.

Post hoc ergo propter hoc mean after this therefore because of this. I don't think anyone argues that UBC are the cause of prohibited persons getting firearms.

The idea I suggest is that legislating something very difficult to enforce doesn't have much of an upside, and that drafting and enforcement differ greatly.

JimDandy · April 18, 2013, 11:40 AM

Criminals get firearms, ergo background checks failed is post hoc ergo propter hoc isn't it? And isn't that the gist of at least part of your opposition? Criminals will still get firearms, so background checks will not be effective?

Kochman · April 18, 2013, 11:42 AM

Yep... asking for a 100% solution or no solution, while denying a 100% solution is even possible... double speak.

A 100% solution isn't possible... so we should do our best, get as close as we can.

Evan Thomas · April 18, 2013, 11:51 AM

Quote:

Originally Posted by Kochman

Yep... asking for a 100% solution or no solution, while denying a 100% solution is even possible... double speak.

Kochman, can you point to where someone in this thread has said this? On the face of it, this is something of a straw man.

April 17, 2013, 09:11 PM	#377
Spats McGee Staff Join Date: July 28, 2010 Location: Arkansas Posts: 8,821	Well, Jim, my analogy wasn't perfect, I'll grant you. However, the Civil Rights Act of 1964 protects certain classes of persons from discrimination in the provision of public services (like whether FFLs will provide services to protected classes of persons). There are statutory rights, and there are constitutional rights. Employment rights are based on the Equal Protection clause of the 14th Amendment, and (at least in part) extended to us by statute. However, there is no constitutional right to a particular job. Only not to be discriminated on in the terms and conditions of employment based upon membership in a protected class. Honest. I'm just too tired to dig up citations right now. You'll have to wait until tomorrow. As far as Edward R. Holtz v. State of New York, I don't know. It looks like a state court proceeding, and I can't find it in Westlaw. From what I can tell, that might be a state court proceeding, which means that a good chunk of it might be based on NY state law. That's a different question from federal constitutional law. __________________ I'm a lawyer, but I'm not your lawyer. If you need some honest-to-goodness legal advice, go buy some.

April 18, 2013, 10:40 AM	#386
Evan Thomas Senior Member Join Date: July 7, 2008 Location: Upper midwest Posts: 5,631	One unintended consequence of any system of universal background checks -- and I haven't heard it mentioned anywhere -- is simply that straw purchases will move into the realm of face-to-face sales. How hard would it be to have your girlfriend go online and get that piece of paper? __________________ Never let anything mechanical know you're in a hurry.

April 18, 2013, 10:56 AM	#389
Evan Thomas Senior Member Join Date: July 7, 2008 Location: Upper midwest Posts: 5,631	The face-to-face nature of the transaction isn't the relevant variable. As things stand, a straw purchase can only take place in a transaction involving an FFL, as those are the only ones for which a background check is required. If background checks were required for all transactions, there would also be straw purchasers buying from private sellers. It's the background check, not the face-to-face aspect of the transaction, that invites straw purchases. (Remember, too, that interstate, private sales don't have to be face-to-face; it's fine to ship a gun to a buyer who lives in your own state. I don't recall anything in the proposed UBC legislation that would alter that -- but I may be wrong.) __________________ Never let anything mechanical know you're in a hurry.

April 17, 2013, 09:19 PM	#379
JimDandy Senior Member Join Date: August 8, 2012 Posts: 2,556	Right, that's the Tresmond case against the Safe Act, which is somehow bringing in Right to Work, and Slaughterhouse. Edit: I wasn't looking to cite that, so much as wondering what it's citing, and how that would interact with this question.

April 18, 2013, 06:11 AM	#380
ROCK6 Senior Member Join Date: November 6, 2004 Location: Georgia/Afghanistan Posts: 314	I’ve read through many of these and I think the focus is inadvertently on the seller and law-abiding purchaser; why not the criminal or those restricted due to mental or other gun-prohibitive conditions? I know this goes along with a voter ID card and the ACLU would flip their lid, but how about those who have lost their 2A rights get a small symbol on their driver’s license or other state recognized ID card prohibiting them from owning or purchasing firearms. Sure, I would not knowingly sell any firearm to a criminal, but I shouldn’t have to jump through hoops just so it’s “seller beware”; that’s absurd and I wouldn’t want to maintain records of sales for the rest of my life. Likewise, as a buyer, I shouldn’t have to undergo unreasonable burdens just to exercise my rights. In my world, I show you a valid driver’s license without the gun-restriction symbol and we make the sale. If the ID looks sketchy, you have the right not to make the sale. Put the burden on those who have lost their rights, not on those who obey the law. The current background system doesn’t work and just as mentioned, failed NICS or background checks are rarely followed up on and even fewer prosecutions. First case in point: I was denied a firearm sale when I moved from KS to TX. The burden was definitely on me to clear it all up and I underwent a more stringent background check and I’m now part of the Voluntary Appeals File for my NICS checks because some jackass used my SSN while attempting to purchase a firearm in KS. Had I not pursed the attention to clear up this NICS red flag, there was no follow up or calls why I failed. If I was a criminal, I just move on to other sources… Second case in point: I was recently renewing my FL CHL and was denied continued processing as I failed a background check. Understand, I’ve been Active Duty Army with a TS/SCI clearance for the past two decades and not even a speeding ticket on file for over a decade. Not that it matters, but FL found a red-flag on an arrest in WA state about five years ago (WA state is still my home of record even though I haven’t resided there in over 20 years)….the same time I was deployed to Iraq. NICS and the more encompassing NCIC help desks at the FBI level didn’t see anything and even the WA state police, country sheriff’s office and local PD of the alleged incident couldn’t explain the issue. An inverted or badly recorded incident somehow tagged me during some incident that wasn’t even an arrest (mistaken ID)…yet some FL state clerk found it (kudos to the clerk but an inadvertent anomaly). The criminal (not even touching on the mental health inclusion) background system is far from perfect with too many disparate system feeds and a poorly federated database that will always be prone to human error. I just think your driver’s license or state-issued ID card should be your proof of gun ownership. If you’re a criminal, especially at local levels, your tagged and it should show on your driver’s license. If for any reason you lost your right to own a firearm due to charged criminal activity, the burden should be on you to clear it up and remove that restrictive symbol on your ID card. I would suspect that 97-98% of the population could legally own or purchase firearms; why burden them for the 1-2% of the population? Burden that 1-2%... Now, during my FL CHL debacle, I did find the WA State “WATCH” on-line criminal checking system pretty cool. It did cost me $10, but like already mentioned, these are simple background checks to see if somebody has a criminal record. All that was needed was the full name and birth date. Of course, it just listed four or five others with similar names and birth dates close to mine, but none were even close…so according to that system and the print out, I wasn’t a criminal in WA State. Make a national system like that, accessible to everyone and make the “certificate” valid for a year and allow buyers to show the seller their non-criminal certificate before purchasing a firearm. I like the idea and it would allow you to check on yourself much like a credit check to make sure there are no “issues” prior to purchasing and it then puts the proof back on the buyer and not the seller. I would be in favor of a system like this as there are no records of the buyers, only records of the criminals who are prohibited from owning a firearm (it could also eventually include those with restrictive mental health diagnosis without violating privacy acts as only that individual would see the results). As a seller, someone shows me a valid certificate and a photo ID and I would be satisfied and the burden is less than a current 4473. Of course this would fly in the face of the liberal goal of records tracking and registration, but it would allow the people to police themselves and the a national criminal data base would be easier to federate and manage vice a database of gun sales of law abiding citizens (again, only tracking 1-2% of the population instead of the 98-99% of the population). Just some thoughts borne from my own personal frustration… ROCK6

April 18, 2013, 08:40 AM	#381
Kochman Junior member Join Date: April 14, 2013 Location: Erph Posts: 110	This S 649 amendment getting shot down has led to LOTS of crybabying from the gun grabbing crowd... which, though I support certain forms of background checks, I find completely hilarious! Just wanted to throw that in there.

April 18, 2013, 09:53 AM	#385
JimDandy Senior Member Join Date: August 8, 2012 Posts: 2,556	ATF Permit Chart To be honest, I'm not 100% comfortable with this either. I live in WA. My CPL is (apparently) eligible to replace the NICS check. My CPL came in the mail as a piece of paper. and I had to laminate the thing myself to protect it from the elements. It's WAY too counterfeitable to be used this way.

April 18, 2013, 10:44 AM	#387
JimDandy Senior Member Join Date: August 8, 2012 Posts: 2,556	Aren't straw purchases already face to face? They aren't definitively so, but I can't imagine a practical situation involving a straw purchase that does not involve some sort of face to face transaction.

April 18, 2013, 10:56 AM	#388
MLeake Senior Member Join Date: November 15, 2007 Location: Outside KC, MO Posts: 10,128	Not necessarily; for handguns, yes, but for longarms, I believe an in-state FFL can ship to your house. Or maybe that is only the CMP. They shipped my M1 to my home.

April 18, 2013, 11:15 AM	#394
MLeake Senior Member Join Date: November 15, 2007 Location: Outside KC, MO Posts: 10,128	Well, JimDandy, this may bring us back to the issue of preemption, and whether that is either truly a) attainable or b) desirable. On the face of it, preventing homicides is an admirable goal. The question is whether it is still admirable, if in order to attain any semblance of it we have to trample all over people's rights, or empower government to a degree which some find unacceptable. The further question, if we decide we can accept trampling of rights and empowered government - which some of us can't, becomes how effective must preemption be in order for us to accept it? So, if I were on the fence - and I am not, but we are speaking theoretically - I would still insist that in order for me to accept ANY infringement, I would want the government to have to prove how effective their program would actually be. Instead, we get a lot of "Well, common sense says..." We have not yet received the "In order to know what's in it, we have to pass it," argument, but I would not be surprised if that were trotted out. Most of the debate, though, has revolved around the "feelings" of people, instead of the facts of what they want to do.

April 18, 2013, 11:40 AM	#398
JimDandy Senior Member Join Date: August 8, 2012 Posts: 2,556	Criminals get firearms, ergo background checks failed is post hoc ergo propter hoc isn't it? And isn't that the gist of at least part of your opposition? Criminals will still get firearms, so background checks will not be effective?

April 18, 2013, 11:42 AM	#399
Kochman Junior member Join Date: April 14, 2013 Location: Erph Posts: 110	Yep... asking for a 100% solution or no solution, while denying a 100% solution is even possible... double speak. A 100% solution isn't possible... so we should do our best, get as close as we can.