Background checks - controversy

Here it is.. it's in forma pauperis

This is when how you qualify

And this is when you get the lawyer

(A) is charged with a felony or a Class A misdemeanor
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(F) is subject to a mental condition hearing under chapter 313 of this title;
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(H) is entitled to appointment of counsel under the sixth amendment to the Constitution;
(I) faces loss of liberty in a case, and Federal law requires the appointment of counsel; or
(J) is entitled to the appointment of counsel under section 4109 of this title.
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And finally:

(2) Whenever the United States magistrate judge or the court determines that the interests of justice so require, representation may be provided for any financially eligible person who—
(A) is charged with a Class B or C misdemeanor, or an infraction for which a sentence to confinement is authorized; or
(B) is seeking relief under section 2241, 2254, or 2255 of title 28.
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These all seem like several different roads to getting a lawyer to defend you against anything that would cause you to be a prohibited person for the vast majority of us.
 
I'd also like to clarify something else about lawsuits against the government. I've never defended the federal government, but I've spent the better part of the last decade defending municipal officers. There's a whole separate discussion about sovereign immunity and qualified immunity that would need to be sorted out before any plaintiff can get money damages, and that's a whole separate question from whether a plaintiff can get a declaratory judgment that a law is unconstitutional.
 
Spats, you said "in forma pauperis"
...doesn't guarantee a lawyer, but it allows an indigent Plaintiff access to the court system without payment of fees.
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In your experience, how well equipped are most of those who can't afford a lawyer, to represent themselves in a court case against the government? Waiving of filing fees simply allows them to represent themselves without paying court costs, if I understand you correctly.
 
I resist the notion that I have reduced the principal in the proposal to an absurdity
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You are comparing a blatant 1A suppression to the process to redress and contest a clerical error- in the "case" we're discussing the faulty FTA for an ex-wife who did not receive her summons in the mail to demonstrate that fixing it after the fact is not a perfect solution to preventing it beforehand.

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.
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And one cannot go to a judge, and get.. here I may get it backwards between TRO's and Injunctive Relief but I believe it's- Injunctive Relief prohibiting the State from suppressing the letter with the likely outcome that they'll be found violating my constitutional right to publish?
 
sorted out before any plaintiff can get money damages, and that's a whole separate question from whether a plaintiff can get a declaratory judgment that a law is unconstitutional.
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Oh ya! That's further down the rabbit hole than we need to go for the quasi-hypothetical discussion of fixing a bad prohibited person designation.
 
JimDandy, what you seem not to grasp is that you are supporting a substantive shift in philosophy, from a paradigm where government has to justify its infringements against citizens prior to any infringement of rights, to one where citizens have to prove, post-infringement, that their rights have been infringed.

This is a major shift.

When Orwell described future society in 1984 and Animal Farm, he was offering a warning, not a blueprint.
 
JD said:
You are comparing a blatant 1A suppression to the process to redress and contest a clerical error- in the "case" we're discussing the faulty FTA for an ex-wife who did not receive her summons in the mail to demonstrate that fixing it after the fact is not a perfect solution to preventing it beforehand.
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I am comparing a prior restraint on your right of free speech to a prior restraint on your ability to purchase a firearm.

I agree that in both instances the remedy of later litigation is not a perfect way to maintain the constitutional protection of the right.

JD said:
And one cannot go to a judge, and get.. here I may get it backwards between TRO's and Injunctive Relief but I believe it's- Injunctive Relief prohibiting the State from suppressing the letter with the likely outcome that they'll be found violating my constitutional right to publish?
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I think you have the right idea in that injunctive relief would be the consequence of a successful process that begins with a temporary restraining order.

However, we do not generally viewed that as an excuse for the federal government to engage in prior restraint of speech (the Pentagon papers case was a rare exception and one that occurred with the cooperation of the publisher involved). Instead, we prohibit the federal government from violating the First Amendment in the first place.
 
Oh not at all. I was just saying there is a mechanism for when the government goes pear shaped and screws up. It's going to happen. That doesn't mean we shouldn't let them do something,- just because someone- eventually, somewhere, some time, is going to boot the ball.
 
Yeah, I realize that the term I used was a little different than JD's, but I knew what he meant by it. So maybe he's got the term "close," if not exactly "right." He's still got the right idea.

JD, all of those that you've named are criminal or habeas statutes, if I remember correctly. IOW, they're all, well, sort of right. They provide an attorney, but the're for criminal-related stuff. (Habeas is a whole different rabbit hole that I don't care to go down. It is its own breed of beast.) I can't name the statute for you, but there are other provisions to allow an indigent to sue officialls civilly using IFP.

MLeake said:
In your experience, how well equipped are most of those who can't afford a lawyer, to represent themselves in a court case against the government? Waiving of filing fees simply allows them to represent themselves without paying court costs, if I understand you correctly.
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How well equipped? Not particularly well. (Though I have met some pretty impressive jailhouse lawyers.) It rarely takes long for them to figure out how to draft a Motion for Appointment of Counsel, though. If their case is very complex (or egregious), the court will appoint them counsel. Judges will also soft-pitch them a few things, or create a questionnaire so that they don't have to know the ins and outs of statutory law.
 
To clear some up:

I see very little difference between applying the NICS/4473 process exactly as it is now on private(retail) sales at a store to private(secondhand) sales between two non licensees- which use a FFL as a middleman.

Whether you think it's right or wrong, I haven't seen anyone on either side come up with a convincing legal argument why retail sales aren't private sales, or why they're interstate trade (under the current definition) and a person to person sale is not.

The NICS system is not perfect. But any false positives that arise there with a person to person sale will arise in a retail store.

Any false positives in either location would still provide the same mechanism for redress.
 
JimDandy said:
Whether you think it's right or wrong, I haven't seen anyone on either side come up with a convincing legal argument why retail sales aren't private sales, or why they're interstate trade (under the current definition) and a person to person sale is not.
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Well, how's this for a hypertheoretical theory: In the case of an FFL sale, and assuming that the gun was made in, or traveled through, States other than the one in which it is being sold, the firearm is still in the stream of interstate commerce at the time of sale, whereas in a person-to-person intrastate sale, the fiream has left the stream of interstate commerce. In the case of a person-to-person, interstate sale, the firearm is once again being placed into the stream of interstate commerce, subject to Congressional regulation.

:D
 
Don't they consider the firearm to have never LEFT the Interstate commerce stream? As the money from the sale buys another stock item at wholesale, which paid for the worker to mine the minerals? Interstate Commerce isn't just the transaction, else Miller never would have been convicted- he didn't sell the shotgun, he just took it across state lines.
 
JD said:
I see very little difference between applying the NICS/4473 process exactly as it is now on private(retail) sales at a store to private(secondhand) sales between two non licensees- which use a FFL as a middleman.

Whether you think it's right or wrong, I haven't seen anyone on either side come up with a convincing legal argument why retail sales aren't private sales, or why they're interstate trade (under the current definition) and a person to person sale is not.
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When you purchase from a store, you are purchasing from a federal licensee. The federal government has some authority to regulate its licensees. The purchase at a store is a two-party transaction. Both parties, the seller and the buyer, are necessarily present for that transaction.

Where is the federal authority to regulate the conduct of an individual who is not a federal licensee? If you require two non-licensees to work through and FFL, you have not only expanded federal authority to cover non-licensees, you have also converted that transaction into a three-party transaction. A three party transaction is significantly more complex to arrange than a two-party transaction. It inevitably also includes additional costs.
 
JimDandy said:
Don't they consider the firearm to have never LEFT the Interstate commerce stream? As the money from the sale buys another stock item at wholesale, which paid for the worker to mine the minerals?
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I was just pulling a theory out of my backside, JD. I'm not sure who the "they" is in your question. However, under that line of thinking, EVERYTHING is subject to Commerce Clause regulation by the fed gov't.

JimDandy said:
Interstate Commerce isn't just the transaction, else Miller never would have been convicted- he didn't sell the shotgun, he just took it across state lines.
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Yes, at that point, Miller is carrying the shotgun in interstate commerce himself. Interstate movement, not just commercial transactions.
 
I was just pulling a theory out of my backside, JD. I'm not sure who the "they" is in your question. However, under that line of thinking, EVERYTHING is subject to Commerce Clause regulation by the fed gov't.
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Almost everything. And, while admitting that's part of what rankles sooooo many people, that's the world we live in too. Just because they don't choose to regulate the shoelaces that travel from the plant in Athens Georgia, to the place they get the plastic tips in Smyrna, doesn't mean they don't have the authority to do so.
 
You'll get no argument out of me on that, JD. The last half-century has seen an absolute explosion of Commerce Clause based expansion of federal power. But if you'll look around, you'll see more and more states passing "Firearms Protection Acts" under which firearms produced wholly in-state, and kept there, are supposed to be (more) shielded from federal regulation. Whether or not any of those laws hold up, however, is an entirely separate question.
 
Spats said:
However, under that line of thinking, EVERYTHING is subject to Commerce Clause regulation by the fed gov't.
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And that's exactly my point.

Current interpretation seems to be that anything that is EVER involved in interstate commerce is FOREVER in interstate commerce and anything that MIGHT have been in interstate commerce if it hadn't NOT been "effects" interstate commerce so it is ALSO covered by the Commerce Clause.

That's an argument that is so preposterous that it should be laughable... but instead it's "the law of the land".

It makes no sense whatsoever and it CERTAINLY makes no sense when applied to the idea of background checks.

They might as well say that someone who buys a car has to pass an FBI drug test because the car came from interstate commerce.

There could be 10's of thousands of examples that anyone in their right mind would find absurd, yet it somehow "makes sense" in this case.
 
There could be 10's of thousands of examples that anyone in their right mind would find absurd, yet it somehow "makes sense" in this case.
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I don't like a lot of things that make sense. But I accept them as reality, and work around, over, and through them as necessary.
 
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