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Background checks - controversy
- Thread starter Kochman
- Start date
It's far worse than that. In Wickard v. Filburn, SCOTUS held that a good which never entered the commerce stream, but could, is subject to commerce clause regulation. Roscoe Filburn (gotta love the name) was a wheat farmer who, during WWII, grew more than his "share" and was forced not only to destroy the excess but to pay a fine as well, even though not one grain of wheat ever crossed a state line. In fact, the excess never entered the stream of commerce - it was all consumed by Filburn and his family. I don't doubt that if a case presented itself, the good itself could be entirely hypothetical.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".
In Gonzalez v. Raich, the SCOTUS used similar logic to rule that Congress constitutionally acted within the scope of the commerce clause by essentially banning the possession of marijuana (even though Raich didn't sell so much as a leaf across state lines).
The only conclusion I can draw is that SCOTUS is saying that government interest alone is enough to cross the commerce clause threshold with respect to any economic transaction - and that should frighten the bejeezus out of all of us.
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p.s. Carter v. Carter Coal Co. is an interesting read for those of you arguing over the point of a product's entry into the interstate commerce stream. It will no doubt be cited if any of these locally made/sold firearms laws comes up.
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But you aren't working around, over, and through them - you are advocating adding to the mess.
Just because we have some regulation does not mean that we should accept more, but that appears to be your premise.
It is true, I'm not opposed, and even mildly in favor of extending the NICS process to non-store sales for myriad reasons...
Equal protection- Why do stores suffer under more burden than second hand sellers?
There's no real difference between a retail and second hand sale. as far as anything covered by such an extension- obviously warranty, etc would be different.
Of all the gun control legislation that's been suggested over the years, the only one that appears to have had any measurable effect is background checks.
Brian Pfleuger
Moderator Emeritus
JimDandy said:There's no real difference between a retail and second hand sale. as far as anything covered by such an extension- obviously warranty, etc would be different.
No? If you give a bag of peppers out of your garden to your neighbor, should you be held to the same food safety standards as the grocery store? Health department inspections? Temperature controls?
How many examples does it take?
This is (should be) such a silly concept. All the more depressing that so many folks can't see it.
The current background check system is already unconstitutional.
The only thing that seems more ludicrous that defending it under the commerce clause is thinking that you can make it "fair" by further extending an already unconstitutional principle.
The common-sense answer is not just no but hell no. But the answer in light of Wickard v. Filburn is...well..yes indeedy. Better make sure those peppers have no e. coli and that your fridges hold a nice constant temp!No? If you give a bag of peppers out of your garden to your neighbor, should you be held to the same food safety standards as the grocery store? Health department inspections? Temperature controls?
No? If you give a bag of peppers out of your garden to your neighbor, should you be held to the same food safety standards as the grocery store?
I do believe I qualified my statement with "as far as anything covered by such an extension" dealing specifically with background checks.
Depending on the product, That DOES happen however. Try looking up "real milk" and "raw milk" for something similar but not exact.
And I reiterate, just because there is not currently a regulation, does not mean the government does not have the authority to create it later- if for example there were a rash of illness from garden grown vegetables.
Ah, but has it? Despite advocates' claims that it has stopped X amount of felons from buying guns, we have yet to see any negative crime trend directly attributable to it.Of all the gun control legislation that's been suggested over the years, the only one that appears to have had any measurable effect is background checks.
There are two reasons. Actual prosecutions for violations are few and far between, and laws that aren't prosecuted generally lack teeth.
Second, criminals don't generally buy their guns from FFL's, at least not directly. They're simply not affected.
It's like attributing the AWB to a crime reduction that was already happening before it was implemented and which continued after it expired.
Ah, but has it? Despite advocates' claims that it has stopped X amount of felons from buying guns, we have yet to see any negative crime trend directly attributable to it.
That's not why I do. Of all the ideas passed in 93, when the homicide rate started trending down, only BG Checks have been in place for the full duration of that decline.
JD, what principled limits, if any, do you think there are on federal authority?
Or is it your sense that federal authority can be extended into any area if that extension seems warranted?
The ones in the constitution- Anything not prohibited by an Amendment, or not allowed by an article. When there's a question involved, we have a court system to figure that out.
The largest single factor in the decline in crime, including violent crime, in this country over the course of years has been longer prison sentences. One criminal commits many crimes. Put him or her behind bars and the crime rate goes down. Under pressure to reduce the prison population under federal court order, California is now seeing their crime rate rise. http://www.breitbart.com/Big-Government/2013/04/11/Brown-realignmentThat's not why I do. Of all the ideas passed in 93, when the homicide rate started trending down, only BG Checks have been in place for the full duration of that decline.
The actual NICS background-check system didn't go online until November of 1998. It couldn't have been stopping crime in 1993.Of all the ideas passed in 93, when the homicide rate started trending down, only BG Checks have been in place for the full duration of that decline.
Spats McGee said: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: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?
Which was exactly the point that Both Justice O'Conner and Justice Thomas made in their dissents over the decision in [ii]Gonzales v. Raich[/i] (previously Ashcroft v. Raich), 545 U.S. 1 (2005).
For those that were here when this decision came out, I opined that the feds could now control most any aspect of your life. This was also the point of the plaintiffs in NFIB v. Sebelius. People guffawed at the broccoli hyperbole, Yet that very argument was from O'Conner's dissent in Raich.
If Sebelius says anything, it says that if the Government cannot get you with the Commerce Clause, it will get you with punitive taxes.
There is nothing that has occurred between then and now that disuades me from the belief that allowing the Government, yet another power grab, will not be harmful to our liberties. A power grab that the Court will likely uphold.
If we grant that the federal power extends, through the commerce clause, to federally licensed firearms dealers, then such regulation can include not only the 4473, but also the NICS check. But to assume that such federal power extends to private intrastate transactions is to give authority where there is no constitutional grant.
For all of the above reasons, I am against allowing any such power.
The actual NICS background-check system didn't go online until November of 1998. It couldn't have been stopping crime in 1993.
Wasn't there a five day waiting period and background check for handguns prior to NICS? My memory of the system back then is a bit fuzzy.
johnwilliamson062
Moderator
Can't walk away from this thread for a minute it is going so fast.
ON prohibited persons:
Have you looked at the variance state to state on what a prohibited person is? Just the state to state difference in how drug crime is punished is IMMENSE. Some states possession is a non-criminal fine and some it qualifies for "long-term" internment. How can one have a federal law piling penalties on top of state laws that vary widely. Not to mention the fact that removing this right was likely never considered when those laws were written or the absolute embarrassment that is public defenders in many jurisdictions. Look at the thousands who have been cleared by DNA evidence in the last decade.
JD, I have read some great arguments from you for removing regulation from licensed dealers. What I have not read is a reason to extend those burdens to private sellers. Instead you seem resigned that the burdens are there, the activity is no different, so the burden should be extended to all. DO you work for a lobby like the FFLs of America or something?
If this law passes FFLs will stop doing transfers. Many in my area already have. Instead they will make you sell used guns to them for a deep discount and resell them for a larger profit than the transfer offers.
If you delegate your decision making to a government bureaucrat you are an irresponsible citizen. I can't drive to my FFL, have him perform a transfer, and drive home in less than an hour. The cost is $30. At minimum wage that is 3.5 hours of work. So, in order to exercise a fundamental right some people have to spend an hour of their free time, work three and a half extra hours at minimum wage, and hope there isn't a delay. If there is they have to meet up again in three days when the delay, which is almost always erroneous, expires. A little more than a moment. Maybe you make $500,000 a year and can't imagine someone deciding not to buy a gun b/c it will cost them half a days wages or groceries to feed a family of 5 for a day in fees to get a transfer on top of the retail price.If you sell guns to unknown people, without a check, in this day and age, you are an irresponsible gun owner.
I will compare it to the colonies in 1776. In 1776 The British government required colonists to face trial in England for some capital crimes. They colonists had a revolution. In 2013 the president publicly states he has the right, personally, to order a US citizen killed on US territory without ANY process at all. We lick the Cheetohs dust off our fingers.I didn't revise my statement at all. I said you aren't necessarily "most" people.
You're comparing the USSR under Stalin to the USA in 2013?
I can't even begin to want to talk on such lines.
ON prohibited persons:
Have you looked at the variance state to state on what a prohibited person is? Just the state to state difference in how drug crime is punished is IMMENSE. Some states possession is a non-criminal fine and some it qualifies for "long-term" internment. How can one have a federal law piling penalties on top of state laws that vary widely. Not to mention the fact that removing this right was likely never considered when those laws were written or the absolute embarrassment that is public defenders in many jurisdictions. Look at the thousands who have been cleared by DNA evidence in the last decade.
B/c I still own it. If they had a certified check from the bank I would sell them my house/car and not bat an eye. You ever do a background check on someone you are selling a house or car too?You'd not rent your apartment to someone, I would hope, without doing some sort of check either.
JD, I have read some great arguments from you for removing regulation from licensed dealers. What I have not read is a reason to extend those burdens to private sellers. Instead you seem resigned that the burdens are there, the activity is no different, so the burden should be extended to all. DO you work for a lobby like the FFLs of America or something?
If this law passes FFLs will stop doing transfers. Many in my area already have. Instead they will make you sell used guns to them for a deep discount and resell them for a larger profit than the transfer offers.
A 4473 is not delegating the decision to a government bureaucrat. You should know what the system IS before you attack it. It merely reports your record, that was already adjudicated.If you delegate your decision making to a government bureaucrat you are an irresponsible citizen.
I can't even believe this...B/c I still own it. If they had a certified check from the bank I would sell them my house/car and not bat an eye. You ever do a background check on someone you are selling a house or car too?
Oh, so if you're selling it to someone it doesn't matter if they are a maniac... because you no longer own it.
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In the case of an apartment building or car? That would be correct, IMHO, as well.Oh, so if you're selling it to someone it doesn't matter if they are a maniac... because you no longer own it.
Why do folks tend to compare apples to oranges when someone disagrees with them?
Kochman said:I can't even believe this...
Oh, so if you're selling it to someone it doesn't matter if they are a maniac... because you no longer own it.
BUT if you own it, then it matters... you don't want to rent to a maniac.
You have no responsibility since you sold it hahahahahahahahah... And this attitude, ladies and gents, is exactly why I support expanded background checks. To ensure that irresponsible gun owners are held to a minimum level of responsibility, to protect those around us.
Since an irresponsible gun owner is by definition irresponsible, would he observe your new law?
Let me suggest that you have conflated two very different scenarios;
1. You sell your Anschutz biathlon rifle to your neighbor who says he is interested in the sport. Unbeknownst to you, he committed vehicular manslaughter as a kid and is legally barred from owning firearms.
In this instance, it is unlikely that you have broken current law in your state because you have not knowingly transferred your rifle to a prohibited individual.
2. The person who sells you cocaine and brags about all the people he has killed since emerging from federal prison requests firearms for himself and his gang. You accommodate this request.
In this instance, you have knowingly trafficked in arms to a prohibited person. Without going to the trouble of any research, my sense is that this is already a crime in most states even in the absence of a universal background check.
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"Encouraging the right thing" is not a sufficient basis for a new federal law that expands federal authority.
Imposing criminal liability on every individual everywhere who otherwise legally transfers a firearm, the transfer by which the right described in the Second Amendment is exercised, imposes a criminal liability on the exercise a valid and fundamental constitutional right. The proposal is not narrowly tailored; on the contrary it is so broad that the word universal is the common description for its scope.
Imposing criminal liability on every individual everywhere who otherwise legally transfers a firearm, the transfer by which the right described in the Second Amendment is exercised, imposes a criminal liability on the exercise a valid and fundamental constitutional right. The proposal is not narrowly tailored; on the contrary it is so broad that the word universal is the common description for its scope.