A question about gun control - Page 2

**Spats McGee** · June 7, 2013, 10:27 AM

Quote:

Originally Posted by KillThe9Ball

#1 Yes it is illegal for a prohibited person to attempt to purchase a firearm. This includes individuals that have been convicted of a felony, misdemeanor domestic violence, are chemically dependent, or have been deemed mentally incompetent.

Providing false information on a 4473 is a crime. Possession of a firearm by certain (prohibited) persons is a crime. "Attempted purchase of a firearm," in and of itself, is not a crime, at least not at the federal level. YMMV on the state level.

jimbob86 · June 7, 2013, 11:01 AM

In addition to having lied on the 4473, any felon that picked up a gun (most people handle a gun they are contemplating buying) is guilty of "possesion" .....

They have his name, address, phone #, DL # and likely his social security #, ...... witnesses that saw him do it, and in all likelyhood, video surveillance recording the act.

That's as "slam dunk/ fish in a barrel/falling off a log" as it gets, I would think. Yet it is not done, and if you ever have to ask the why of a thing, then the answer is always "Power" or "Money" ....... you just have to ask yourself who gains them by the course of action taken, or in this case, NOT taken.

....this is just further evidence to me that it is NOT about guns, but about CONTROL: They have the felons (and the drug abusers, and the folks that have been convicted of tickin' off their domestic partners, and the folks that have ever been depressed enough to seek help, and, and, and ..... under their thumb- they want that digit on YOU, too.

**44 AMP** · June 7, 2013, 11:33 AM

T add yet another spoon to this stew, where does the convicted felon's constitutional protection from self incrimination enter into the picture?

It has already been ruled that a convicted felon, found in posession of a gun can be charged with posession, BUT, CANNOT be charged with failing to have the gun registered (where required by local law), because registering it would violate their rights.

Now, where might this figure in during the filling out of the 4473 form and attempted purchase?

My point is, while it is a crime to lie of the 4473, if a convictred felon tells the truth on the form, they are incriminating themselves. SO, which one takes precedence?

Is it possible that a convicted felon lying on the form might be considered the same as not registering a gun? Both would seem to be a violation of their 5th amendment right against self incrimination.

Thoughts?

jimbob86 · June 7, 2013, 11:57 AM

Ok, so they can use the 5th to dodge the 4473 ...... but what of the posession charge when they picked the gun up off the counter?

The Feds could used the NICS denial to notify LE that the guy tried to buy the gun, the store would have the evidence...... still a slam dunk for another felony charge, no? But they don't have time for that ...... too busy listening to phone calls, I guess.

fragtagninja · June 7, 2013, 12:53 PM

Again though. If no one gets prosecuted and imprisoned there is by default no penalty. It can be on the books all day everyday, but unless practiced at the end of the day there is no real deterrent. Does the law stop criminals from breaking it? No the cops do. Because without them a law is a bunch of words on a piece of paper a hundred miles away. If the laws are not going to be enforced in the first place there is no point in adding more.

So the consensus seems pretty clear. We already have the laws we need on the books to stop criminals and other prohibited persons from possessing firearms. To remedy this we need only enforce them correct? So if a prohibited person pops up on nics should it not be mandatory to investigate it? If it is a false positive then things get cleared up and the person does not have to file an appeal. If it is indeed a prohibited person throw the book at them to create a clear example of what happens when felons try to buy guns. After a while they will stop trying because it won't be worth the risk. Yes? No?

My next question then is how long have we been handling things in this manner. Is this a current administration thing or has it been going on for a long time?

Scimmia · June 7, 2013, 03:01 PM

Quote:

Originally Posted by 44 AMP

My point is, while it is a crime to lie of the 4473, if a convictred felon tells the truth on the form, they are incriminating themselves. SO, which one takes precedence?

Incriminating themselves of what crime? If they tell the truth, no crime has been committed. It's different than registration because registration is admitting that you own a gun in violation of the law.

**Tom Servo** · June 7, 2013, 09:47 PM

Actually, the idea of registration as self-incrimination was addressed in Haynes v. United States:

Quote:

We hold that a proper claim of the constitutional privilege against self-incrimination provides a full defense to prosecutions either for failure to register a firearm under sec.5841 or for possession of an unregistered firearm under sec.5851

KyJim · June 7, 2013, 10:17 PM

There's a difference in requiring one to register an already illegally owned firearm and giving false statements to obtain a firearm. The first requires compelled speech which incriminates the speaker. It therefore violates the Fifth Amendment. The second does not compel speech. Nobody is required to fill out a 4473. Filling out a form to purchase a firearm is a choice which is not compelled and does not violate the Fifth Amendment.

KillThe9Ball · June 8, 2013, 04:44 AM

To expand upon JimBob86's comment:

Quote:

In addition to having lied on the 4473, any felon that picked up a gun (most people handle a gun they are contemplating buying) is guilty of "possession" .....

Possession has been defined via case law as "In Physical Control" or "Readily Accessible".

"Readily Accessible" means, "Allowing for access without the need to remove obstructions.".

With this definition, if a FFL takes a firearm out of the gun case and places it on the counter-top, even if the felon hasn't touched it but is in arm's length (which is the usual standard given and there are no obstructions), they can be considered in "possession".

KillThe9Ball · June 8, 2013, 06:01 AM

fragtagninja,

I disagree with quite a few of your statements. I've typed this up quickly and I'm sure I made a few errors where I did not express myself correctly, for that I apologize. With regards to other members
of this forum, please go easy on me, it's 5:52am... I'm sure I wrote something that didn't quite 'come out right'...

Quote:

Again though. If no one gets prosecuted and imprisoned there is by default no penalty. It can be on the books all day everyday, but unless practiced at the end of the day there is no real deterrent.

True.

Quote:

Does the law stop criminals from breaking it? No the cops do.

I hate to tell you, but the police don't stop crime. In general, they are a reactionary and investigative force. They respond after you have already been victimized. You call them AFTER you have been
robbed, burglarized, or in the worst-case-scenario, someone else calls them after you've been murdered. Bank robberies, murders, and rapes happen everyday - we all know these crimes violate both man's law
and God's law, but this doesn't stop these things from happening.

Quote:

Because without them a law is a bunch of words on a piece of paper a hundred miles away. If the laws are not going to be enforced in the first place there is no point in adding more.

This is what the law has always been - words on paper. The law is nothing more than a social agreement that we Americans agree to.
All human beings have the God given right to 'free-will'; do good or do evil. You can rob a bank or commit a murder, no one is stopping you... However, if you violate the laws (standards of conduct that we as a people have agreed to and put in place), there will be consequences once your caught.

Quote:

So the consensus seems pretty clear. We already have the laws we need on the books to stop criminals and other prohibited persons from possessing firearms. To remedy this we need only enforce them correct?

Enforcing the laws that are currently on the books would be a damn good place to start! Once we begin enforcing the laws we already have, we can modify and tweak them in the future after we have a chance to see how they work when enforced.

Quote:

So if a prohibited person pops up on nics should it not be mandatory to investigate it? If it is a false positive then things get cleared up and the person does not have to file an appeal. If it is indeed a prohibited person throw the book at them to create a clear example of what happens when felons try to buy guns.

Yeah, criminals should view firearms in the same manner that Super Man views kryptonite... Gang members should be saying, get that gun away from me....

Quote:

After a while they will stop trying because it won't be worth the risk. Yes? No?

NO, some will stop if firearms are like kryptonite to the criminals, but many criminals are mentally ill and don't think rationally. Many are sociopaths, I encourage everyone to look up the diagnosing criteria for a sociopath.

1. Compulsive liars
2. Act Impulsively
3. Lack of guilt or remorse

Quote:

My next question then is how long have we been handling things in this manner. Is this a current administration thing or has it been going on for a long time?

From 1776 or 1966 there were no mass shootings in this country. That is 190 years of Zero background checks. Most firearms during that period were sold via mail order (Sears or Montgomery Ward catalog). In 1992 is when the background check laws were signed...

In the 1960's is when the states began de-funding and shutting down the mental hospitals (thanks to Wyatt v. Stickney). As the mental hospitals began to close, mass shootings started (i.e. Charles Whitman Circa 1966, UT Austin Clock Tower).

Regarding prosecutions for those illegally trying to buy firearms, the numbers have always been low. They are lower under the Obama administration than under the Bush administration, but it's really pointless to compare anemic to "slightly more" anemic.

TDL · June 9, 2013, 07:04 AM

Quote:

There are penalties. It's illegal for felons to possess firearms, and my understanding is that if a prohibited person gets called in to the NICS system, they will get a visit.

Quote:

On the other hand, if the buyer lies on the form, they can be prosecuted for perjury.

Tom,
There are jurisdictions where you have to bring that form into the state/local police station and it seems they in fact do nothing if you have perjured yourself and are a felon.

In my jurisdiction you fill out the 4473 with the FFL, and then you go to the firearms office with your single 4473 (where they fingerprint you and run a second NCIS) and fill out second local form, also under penalty of perjury, also attesting your eligilbity and lack of a excluding past crime.

No one in my jurisdiction seems to have been prosecuted either on the federal form by the feds or on the local form.

I think it I understandable that some (most?) NCIS fails are due to innocent errors on the applicant side, or a false positive on the FBI side. Also there are some crimes or protective orders not previously included on NCIS that are now included, and also some people may have had records expunged or an civil rights limited in a conviction changed to not limited.

But I have been standing at my local firearms office, which is manned by solely by police and seen three persons declined. What I have noticed is they are not even questioned in the least. Perhaps they are run for current wants/warrants but I have not seen them even questioned about even the local form which has a big callout on the exclusion questions that notes it is attested under penalty of perjury (and has to be signed in the presence of a police officer)

I think the take way is that both a) the number or erroneous NCIS declines, as well as b) the strong possibility that a single excluded individual with low fear of position can try multiple times does tell us one thing: that the claim by the anti gun groups that the NCIS is so successful because of the assertion that it "has prevented 2 million ineligible persons from getting guns" is a gross exaggeration.

fragtagninja · June 10, 2013, 03:45 AM

Killthe9Ball it is always the goal of law enforcement to intercede.

Quote:

I hate to tell you, but the police don't stop crime. In general, they are a reactionary and investigative force.

Your assertion while correct to a point does not capture the core mission of our police. The purpose of driving real fast with the whoo whoo lights is to intercede and stop crimes in progress. They do not always make it, but they do try. The purpose of a reactionary and investigative force is that it serves as a deterrent for would be criminals. Is it perfect? No. Does it stop all crime? No, but it does stop some crime. Officers do many times get there in time to stop crimes while they are happening. However they cannot always be in the "right place at the right time" as my dad would always say.

Now as for making guns criminal kryptonite. That is exactly where we should be. As far as the mentally ill. I deal with them on an almost daily basis. You are right. They do not think logically. Sociopaths on the other hand are whole other can worms. Sociopaths are very cold and calculating people that are almost always exploiting someone or something for personal gain. They are yes impulsive, but they always put themselves first. That said they will never avoid deviant behavior because it is wrong. They will however avoid indulging in their perverse nature until they believe they can do so without being caught. They tend to be highly intelligent and very charming.

That said if we make it so that the risk is greater than the reward even sociopaths will shy away from FFLD's if they have a criminal record. I would also like to point out that looking at diagnoses of sociopaths is pointless because even phd level psychologists have found it difficult to diagnose them.
I had a martial arts teacher early on in my training I am sure was a sociopath, but seeing as I am not a Dr. of psychology or psychiatry I am not qualified to make a diagnoses. He may have simply been extremely narcissistic. Not all sociopaths are criminals either. However they all exploit people in someway shape or form.

Here are 2 links that might be useful.

http://askdrrobert.dr-robert.com/psychopath.html

http://askdrrobert.dr-robert.com/sociopath.html

Lastly Killthe9Ball. You have made some rather good points that I think should be discussed when it comes to gun control debates.

pete2 · June 10, 2013, 09:04 AM

Just more laws that the Fed. chooses not to enforce. Makes one wonder.

csmsss · June 10, 2013, 11:28 AM

Felon in possession of a gun is a federal crime, but rarely (if ever) prosecuted by the feds. It's also, as far as I know, a crime in each of our states, with varying minimum sentences. It's also a crime in many/most states to commit a felony with a firearm, again with varying minimum sentences.

Unfortunately, it is the common practice in plea negotiations to drop these charges in order to obtain a plea from the defendant. When these cases actually DO reach court, in all too many instances the sentence(s) for these "secondary" violations is frequently made to run concurrently with the main sentence (for armed robbery or murder or whatever) such that the violation of the prohibition on felon carrying the firearm is rendered utterly meaningless.

This is the fault of our prosecutors and judges inasmuch as they are willing to horse trade and reduce the penalties imposed upon criminals at our expense.

fragtagninja · June 10, 2013, 01:05 PM

The problem you are describing csmsss is called the CSI effect. The county prosecutor where I live calls it that anyway. Because of tv shows like CSI and its many copy cat trend followers a lot of people don't want to convict someone without DNA evidence. Thus making the prosecutor's job a lot more difficult. He noticed this trend starting around the time these shows became popular. A lot of people believe that everything they see in CSI is real when much of what these shows portray is closer to forensic fiction than forensic science. And yes I have met people that think everything featured in these shows is real. So simply blaming the prosecutors is not going to solve the issue. They just do the best they can with what they have. We need a clear protocol on how we handle these things. Is it purely a federal matter? Or is this a mandate better left to local law enforcement of the individual states? I am inclined to go with the latter. Even if the ultimate penalty is only 3 months in jail. If it keeps happening to them when they try to buy guns from FFL dealers they will eventually stop going to them. This leaves them with two options. Black market, or stealing.

June 7, 2013, 11:01 AM	#27
jimbob86 Junior member Join Date: October 4, 2007 Location: All the way to NEBRASKA Posts: 8,722	In addition to having lied on the 4473, any felon that picked up a gun (most people handle a gun they are contemplating buying) is guilty of "possesion" ..... They have his name, address, phone #, DL # and likely his social security #, ...... witnesses that saw him do it, and in all likelyhood, video surveillance recording the act. That's as "slam dunk/ fish in a barrel/falling off a log" as it gets, I would think. Yet it is not done, and if you ever have to ask the why of a thing, then the answer is always "Power" or "Money" ....... you just have to ask yourself who gains them by the course of action taken, or in this case, NOT taken. ....this is just further evidence to me that it is NOT about guns, but about CONTROL: They have the felons (and the drug abusers, and the folks that have been convicted of tickin' off their domestic partners, and the folks that have ever been depressed enough to seek help, and, and, and ..... under their thumb- they want that digit on YOU, too. Last edited by jimbob86; June 7, 2013 at 11:26 AM.

June 7, 2013, 11:33 AM	#28
44 AMP Staff Join Date: March 11, 2006 Location: Upper US Posts: 28,833	T add yet another spoon to this stew, where does the convicted felon's constitutional protection from self incrimination enter into the picture? It has already been ruled that a convicted felon, found in posession of a gun can be charged with posession, BUT, CANNOT be charged with failing to have the gun registered (where required by local law), because registering it would violate their rights. Now, where might this figure in during the filling out of the 4473 form and attempted purchase? My point is, while it is a crime to lie of the 4473, if a convictred felon tells the truth on the form, they are incriminating themselves. SO, which one takes precedence? Is it possible that a convicted felon lying on the form might be considered the same as not registering a gun? Both would seem to be a violation of their 5th amendment right against self incrimination. Thoughts? __________________ All else being equal (and it almost never is) bigger bullets tend to work better.

June 7, 2013, 11:57 AM	#29
jimbob86 Junior member Join Date: October 4, 2007 Location: All the way to NEBRASKA Posts: 8,722	Ok, so they can use the 5th to dodge the 4473 ...... but what of the posession charge when they picked the gun up off the counter? The Feds could used the NICS denial to notify LE that the guy tried to buy the gun, the store would have the evidence...... still a slam dunk for another felony charge, no? But they don't have time for that ...... too busy listening to phone calls, I guess.

June 7, 2013, 12:53 PM	#30
fragtagninja Senior Member Join Date: February 20, 2013 Posts: 194	Again though. If no one gets prosecuted and imprisoned there is by default no penalty. It can be on the books all day everyday, but unless practiced at the end of the day there is no real deterrent. Does the law stop criminals from breaking it? No the cops do. Because without them a law is a bunch of words on a piece of paper a hundred miles away. If the laws are not going to be enforced in the first place there is no point in adding more. So the consensus seems pretty clear. We already have the laws we need on the books to stop criminals and other prohibited persons from possessing firearms. To remedy this we need only enforce them correct? So if a prohibited person pops up on nics should it not be mandatory to investigate it? If it is a false positive then things get cleared up and the person does not have to file an appeal. If it is indeed a prohibited person throw the book at them to create a clear example of what happens when felons try to buy guns. After a while they will stop trying because it won't be worth the risk. Yes? No? My next question then is how long have we been handling things in this manner. Is this a current administration thing or has it been going on for a long time?

June 7, 2013, 10:17 PM	#33
KyJim Senior Member Join Date: July 26, 2005 Location: The Bluegrass Posts: 9,142	There's a difference in requiring one to register an already illegally owned firearm and giving false statements to obtain a firearm. The first requires compelled speech which incriminates the speaker. It therefore violates the Fifth Amendment. The second does not compel speech. Nobody is required to fill out a 4473. Filling out a form to purchase a firearm is a choice which is not compelled and does not violate the Fifth Amendment.

June 10, 2013, 09:04 AM	#38
pete2 Senior Member Join Date: May 15, 2012 Location: Texas Posts: 2,566	Just more laws that the Fed. chooses not to enforce. Makes one wonder.

June 10, 2013, 11:28 AM	#39
csmsss Senior Member Join Date: October 24, 2008 Location: Orange, TX Posts: 3,078	Felon in possession of a gun is a federal crime, but rarely (if ever) prosecuted by the feds. It's also, as far as I know, a crime in each of our states, with varying minimum sentences. It's also a crime in many/most states to commit a felony with a firearm, again with varying minimum sentences. Unfortunately, it is the common practice in plea negotiations to drop these charges in order to obtain a plea from the defendant. When these cases actually DO reach court, in all too many instances the sentence(s) for these "secondary" violations is frequently made to run concurrently with the main sentence (for armed robbery or murder or whatever) such that the violation of the prohibition on felon carrying the firearm is rendered utterly meaningless. This is the fault of our prosecutors and judges inasmuch as they are willing to horse trade and reduce the penalties imposed upon criminals at our expense.

June 10, 2013, 01:05 PM	#40
fragtagninja Senior Member Join Date: February 20, 2013 Posts: 194	The problem you are describing csmsss is called the CSI effect. The county prosecutor where I live calls it that anyway. Because of tv shows like CSI and its many copy cat trend followers a lot of people don't want to convict someone without DNA evidence. Thus making the prosecutor's job a lot more difficult. He noticed this trend starting around the time these shows became popular. A lot of people believe that everything they see in CSI is real when much of what these shows portray is closer to forensic fiction than forensic science. And yes I have met people that think everything featured in these shows is real. So simply blaming the prosecutors is not going to solve the issue. They just do the best they can with what they have. We need a clear protocol on how we handle these things. Is it purely a federal matter? Or is this a mandate better left to local law enforcement of the individual states? I am inclined to go with the latter. Even if the ultimate penalty is only 3 months in jail. If it keeps happening to them when they try to buy guns from FFL dealers they will eventually stop going to them. This leaves them with two options. Black market, or stealing.