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May 16, 2015, 12:46 PM | #26 | |||||
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The Founding Fathers assigned to the federal courts the authority to exercise the judicial power of the United States to decide, among other things, cases arising under the Constitution (Article III, Sections 1 and 2): The exercise of judicial power and the deciding of cases arising under the Constitution necessarily involves interpreting and applying the Constitution to the circumstances of the matter in controversy in order to decide the dispute. Many of the Founding Fathers were lawyers and well understood what the exercise of judicial power meant and entailed. Thus if there is disagreement about whether a statute applies to decide a controversy or the application of the statute is barred by the Constitution, the matter is one within the province of the federal courts to decide. As the Supreme Court ruled back in 1803 (Marbury v. Madison, 5 U.S. 137, 2 L. Ed. 60, 1 Cranch 137 (1803), 1 Cranch at 177 -- 178): And so --
The courts give deference to legislative acts and presume statutes valid and enforceable, until unconstitutionality is determined. As the Supreme Court said in Brown v. State of Maryland, 25 U.S. 419 (1827), at 437: And much more recently in U.S. v Morrison, 529 U.S. 598 (2000): So in the real world a statute is valid and enforceable unless and until it is found invalid by a court having appropriate jurisdiction. You might think the law is unconstitutional, and therefore invalid, but your belief in the unconstitutionality or invalidity of a law keeps no one out of jail; nor does it have any effect on the lives and property of real people in the real world. Whether or not, as Second Amendment jurisprudence matures post Heller/McDonald the Supreme Court will ultimately find Universal Background Checks unconstitutional remains to be seen. But if it does, its ruling will be based on precedent and established legal principles. So if one wishes to effectively and meaningfully argue that Universal Background Checks should be found unconstitutional, his arguments will need to be founded on the same types of bases, i. e., precedent and established legal principles. Arguments based on what might wish for or hope or want or like won't get anyone anywhere.
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"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper Last edited by Frank Ettin; May 16, 2015 at 11:17 PM. |
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May 16, 2015, 01:06 PM | #27 | |
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"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper Last edited by Frank Ettin; May 16, 2015 at 11:20 PM. |
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May 19, 2015, 12:27 AM | #28 | |
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I can think of no other fundamental right that one needs to demonstrate himself so that he may exercise the right. For speech, there are time and place restrictions, but these are generally quite easy to navigate with no background checks. For religious practice, there are nearly no limits on this category. Clearly the 1st doesn't require such an intrusive investigation into a persons' history - and one could argue the 1st is the MOST dangerous of the rights (against the state and against other people). The 1st isn't waived by attempting to exercise it. In exercising the 4th, an officer must have a warrant sworn out based on probably cause of a criminal act or intent or evidence of a crime. There are exceptions but it isn't waived (generally, except in a secured area like an airport) simply by attempting to exercise it. Likewise, the 5th (not being required to testify against oneself in criminal trials), is not absolute and a court may order it waived (for instance in an immunity situation). However, the state requiring waiver is a rare situation, on an institutionalized happening during every trial. I do see the 4473 as an infringement on the 1st (requiring speech), 4th (waiving/consenting to search), and 5th (mandating self incriminating speech) to exercise the 2nd. Let's not forget there are very real penalties for giving false information on the 4473, which is also quite problematic. In short, let's assume that every lawful gun purchase starting today required a 4473. New gun owners would have to forfeit 3 rights (1st/4th/5th) to exercise the 2nd. Hence it is fundamentally not right to create a situation where one has to submit to XYZ in order to exercise a guaranteed right under the 2A. And that is a travesty. Seems this all points back to "Shall not be infringed..." So lots of legal mumbo jumbo to circumnavigate such an easy and plain language clause. |
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May 19, 2015, 12:41 AM | #29 | ||
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Whether or not requiring a background check to transfer a gun is another question which is yet to be decided.
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"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper |
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May 19, 2015, 11:06 AM | #30 |
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If a felon can be exempt from gun registration because registration would self-incriminate them as felons in possession, why wouldn't they be exempt from a background check for the same reason, felons attempting to purchase?
So, us law-abiding citizens will comply, the felons won't. |
May 19, 2015, 11:50 AM | #31 | ||
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"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper |
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May 19, 2015, 01:14 PM | #32 |
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Let me restate my comments in a different way.
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"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper |
May 19, 2015, 09:29 PM | #33 |
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And how does all that work with (most) Washington residents being in two militia- state and federal- and the militia historically providing their own arms?
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