Background checks - controversy

[zukiphile]

Actually, it is. It's the reason for most criminal laws, to discourage people from being criminals/engaging in bad/irresponsible behavior (like selling guns to strangers without knowing a thing about them and assuming they are legit)... I thought this common knowledge.

You are mistaken.

The federal Constitution sets forth a system of enumerated federal powers and a Bill of Rights detailing specific rights held by individuals against the federal government.

There is no provision of the federal Constitution or federal case law indicating that "encouraging the right thing" suffices as an independent basis for federal authority.

If you believe otherwise, I invite you to reproduce that portion of the Constitution or federal case law.

 

[Brian Pfleuger]

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.

And tell me, sir, where the problem exists for which your "solution" is necessary?

Questions:

1)Has there been a rash (or even 1 major incident) of shootings with guns that were intentionally and irresponsibly transferred to a prohibited person? I'll answer that for you. No.

2)Would this "universal" background check system have prevented the shooting at Newtown or any of the other mass shootings? I'll answer that for you too.... No.

You propose a change in law that:
1)Is demonstrably outside the constitutional powers of the national government.
2)Addresses a "problem" that does not exist.
3)Purports to arise from incidents which it would not prevent.
4)Expands on a system that is currently violated with impunity.

One might "look past" some minor flaw in a system, were the benefits profound. This system is rife with flaws, AT BEST constitutionally questionable and provides no significant or even measurable benefit.

I worry greatly for the future of our republic.

 

[Kochman]

@Z
You're seriously telling me that laws don't exist to encourage good behavior by discouraging bad behavior?
Federal, state, or local?

@BF
1) You are completely wrong. Are you really trying to say no bad guy ever used a "gun show" purchase to kill anyone?!
2) Without seeing all the facts, I can't answer that accurately, nor can you. Under my system, Laughtner would have been forbidden already, because he was nutso... it wasn't reported. Etc. That's generally been the case. It didn't happen under the current system because the current system is so weak.

As for your 4 points...
1) Demonstrate how it is? Are you a knee-jerk "shall not be infringed" guy? I suggest you look up the definition of infringe. Infringe is not the same as regulate.
2) You'd be laughed out of the room in most serious circles stating there isn't any problem with criminals buying guns from legal sources.
3) 120k preventions in 2 years... it arises from that documented proof, actually. Your outlying events not withstanding. No system is perfect, if someone suddenly snaps there is really no way to prevent it. However, preventing known wackjobs from getting guns is something we ought to pursue dilligently... since it doesn't stop law abiding people from getting a gun.
4) And needs to be strengthened so as not to be violated so easily... I'm all for pursuing people who falsify on 4473s.

 

[zukiphile]

@Z
You're seriously telling me that laws don't exist to encourage good behavior by discouraging bad behavior?
Federal, state, or local?

No.

Words have meaning. If you would like to have a conversation about what you have proposed, it would help if you observe the meaning of the words you read.

Asking me if I am "telling" you something I have nowhere and in no way told you does not indicate due attention to the text of our discussion. Moreover, it is not responsive to the invitation you have been provided.

"Encouraging the right thing" is not a sufficient basis for a new federal law that expands federal authority.

Actually, it is. It's the reason for most criminal laws, to discourage people from being criminals/engaging in bad/irresponsible behavior (like selling guns to strangers without knowing a thing about them and assuming they are legit)... I thought this common knowledge.

You are mistaken.

The federal Constitution sets forth a system of enumerated federal powers and a Bill of Rights detailing specific rights held by individuals against the federal government.

There is no provision of the federal Constitution or federal case law indicating that "encouraging the right thing" suffices as an independent basis for federal authority.

If you believe otherwise, I invite you to reproduce that portion of the Constitution or federal case law.

Emphasis added. I will offer my invitation in a different form.

I challenge you to provide a provision of the federal Constitution or federal case law indicating that "encouraging the right thing" suffices as an independent basis for federal authority.

 

[Kochman]

Z, I really am not going to debate this point.
It is clear that nearly all criminal law is based in the desire to encourage better behavior, and has led to the creation of a lot of federal power.
To go right back to 1789, a pretty important year I'm sure you'd agree, the creation of the US Marshals Service... created to enforce laws on the books, as well as discourage the attacking of courthouses/judges/etc. We don't have to look far to see when it happened.

This supreme hair splitting... I won't entertain it.

 

[Brian Pfleuger]

As for your 4 points...
1) Demonstrate how it is? Are you a knee-jerk "shall not be infringed" guy? I suggest you look up the definition of infringe. Infringe is not the same as regulate.

I've already pointed out the reasons why it's unconstitutional, and I haven't even mentioned the 2A. Tell me sir, what ENUMERATED POWER gives the national government this authority? Not your nebulous "general welfare" clause. That's a non-starter. It is NOT a source of power or legal authority.

2) You'd be laughed out of the room in most serious circles stating there isn't any problem with criminals buying guns from legal sources.

Criminals buying guns from legal sources? So what. Are they LEGALLY buying? NO! They're not! It's already illegal! How will making it more illegal stop them? It won't.

3) 120k preventions in 2 years... it arises from that documented proof, actually. Your outlying events not withstanding. No system is perfect, if someone suddenly snaps there is really no way to prevent it. However, preventing known wackjobs from getting guns is something we ought to pursue dilligently... since it doesn't stop law abiding people from getting a gun.

Since no "known wack-job" that has committed a mass shooting has acquired their firearms through a method that would have prevented it, had these "universal" checks been in place... what's the point?

4) And needs to be strengthened so as not to be violated so easily... I'm all for pursuing people who falsify on 4473s.

Making it "universal" doesn't strengthen it so it's not violated so easily. Criminals are funny, in that they tend not to obey laws. You know, drug dealers who buy and sell products that can not be legally obtained by ANY method? By. Any. Method. Yet, there they are, by the millions, buying and selling. Oh, yeah, they've got guns too. Illegal guns. All their guns are illegal. They were acquired illegally or possessed illegal, or both. Still... There. They. Are.

These proposed restrictions only stop or hinder law abiding people. People who follow the law. People who, by definition, are not the people we worry about stopping.

That, in itself, should end any serious discussion. What's the point in stopping people who aren't dangerous? If that's not enough, there are the constitutional issues. If that's not enough, nothing will be.

This is the very definition of a circular argument and I've said all I can say. This "is not!", "is too!" is pointless.

 

[Kochman]

Would you rather the next news report mention that the next wacko got his gun legally or bought it via the black market?
It's basically the core of the debate here, BF.

 

[zukiphile]

Would you rather the next news report mention that the next wacko got his gun legally or bought it via the black market?
It's basically the core of the debate here, BF.

You have misidentified the issue presented.

Alleging a malevolent preference to those who do not concur in your position is is not primarily about what you've proposed.

Z, I really am not going to debate this point.

The point you are declining to address is the overriding constitutional flaw in your proposal.

You are not obligated to address any part of your proposal or the problems with it, but to be clear, you have chosen not to discuss the constitutional shortcomings of your proposal that have been brought to your attention.

 

[JimDandy]

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.

That was the provisional system while NICS was getting up and running. During that time period, you went to the store, filled out a form that basically says, This is me, I want a handgun. After that point, the dealer sent the information to the CLEO(s) and waited 5 business days. After those 5 business days they completed the transfer unless one or more CLEO's responded that the transfer would be illegal.

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?

I don't recall making such arguments, though it's possible. I draw a pretty big line between regulating them, and harassing them. I'd love to see the ATF get some more funding. Of course, I'd also like to see them be more firearm friendly, and improve their reputation through MUCH better conduct.

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.

Very little crime is "gun crime". Even allowing for the new people getting into that level of crime, it's going down faster than that percentage of gun crime that's not being repeated by people in prison.

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.

Is your neighbor still prohibited? Or would that juvenile offense have been expunged?

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.

Every state. If he sells me cocaine, I'm a habitual user yadda yadda.

"Encouraging the right thing" is not a sufficient basis for a new federal law that expands federal authority.

Even I choke on that one. It's all well and good to say people will still break the law. That's why we include a penalty phase. Laws do more than encourage doing the right thing, and we're being naive to ignore that. They set out a code of conduct for the people who follow them, and a code of penalties for those who break them.

 

[zukiphile]

Is your neighbor still prohibited? Or would that juvenile offense have been expunged?

I set forth those hypothetical scenarios for the purpose of illustrating the difference between an act undertaken knowingly and one not taken knowingly.

Knowledge and intent are common elements in criminal code.

They set out a code of conduct for the people who follow them, and a code of penalties for those who break them.

At the risk of a slight tangent, this appears to touch on the cultural difference observed by a friend stationed in Germany.

He notes that when an American contemplates the legality of an act, he checks the law to see if it is prohibited. He describes the German mindset differently: when a German contemplates the legality of an act, he checks the law to see if it is allowed.

That is a gross generalization, but it speaks to a difference in vision.

 

[JimDandy]

You propose a change in law that:
1)Is demonstrably outside the constitutional powers of the national government.
2)Addresses a "problem" that does not exist.
3)Purports to arise from incidents which it would not prevent.
4)Expands on a system that is currently violated with impunity.

1) It is not demonstrably outside the constitutional powers of the Federal Government. To demonstrate it is outside those powers, one would have to point to it being judged unconstitutional under legal challenge, or something similar being so held. In point of fact, something similar has been upheld time and again. It may be your opinion, an opinion many share, but that is not the same as demonstrably unconstitutional.

2) Criminals getting guns in legal(for the seller) face to face transactions is a problem that DOES exist. The fact that they aren't using these guns for spree killing when they lose their mental faculties does not prove a lack of problem.

3) Kochman may be responding to the spree shooting model, however I have not. Those crimes account for a blessedly small section of violence using firearms.

4) No system will ever be omnipotent. A system that does the most it can, while intruding as little as possible is a goal worth aiming for, however.

 

[JimDandy]

I set forth those hypothetical scenarios for the purpose of illustrating the difference between an act undertaken knowingly and one not taken knowingly.

Knowledge and intent are common elements in criminal code.

Yeah, But that got me curious about that. I tend to tangent easily. I got in trouble once in school looking up a word, then kept reading the page, and blurted out "What in the world is a gonad?" in class when I got to one I wasn't familiar with.

I suppose the answer to my question would be some version of Depends on how he was tried, juvenile, adult, but I asked to be sure, and satisfy curiosity.

 

[zukiphile]

I suppose the answer to my question would be some version of Depends on how he was tried, juvenile, adult, but I asked to be sure, and satisfy curiosity

I appreciate the curiosity, but I could not answer it has stated because it was not an element of or pertinent to the difference between knowingly committing the act and doing so not knowing that the recipient was a prohibited person.

1) It is not demonstrably outside the constitutional powers of the Federal Government. To demonstrate it is outside those powers, one would have to point to it being judged unconstitutional under legal challenge, or something similar being so held. In point of fact, something similar has been upheld time and again. It may be your opinion, an opinion many share, but that is not the same as demonstrably unconstitutional.

I do not agree entirely. This harkens back to our discussions of the commerce clause in this thread. It should not take nine distinguished justices to define "interstate" and "commerce", or misdefine those terms.

No universal background check has previously been found constitutional or withstood constitutional challenge. Any such system that infringes the right described in the Second Amendment should run afoul of that amendment.

2) Criminals getting guns in legal(for the seller) face to face transactions is a problem that DOES exist. The fact that they aren't using these guns for spree killing when they lose their mental faculties does not prove a lack of problem.

A law may address the real problem, but addressing a real problem does not establish constitutional legitimacy.

3) Kochman may be responding to the spree shooting model, however I have not. Those crimes account for a blessedly small section of violence using firearms.

Emphasis added. I agree, and note that these rare events displace a disproportionately large volume in public policy discussion.

4) No system will ever be omnipotent. A system that does the most it can, while intruding as little as possible is a goal worth aiming for, however.

Emphasis added. The bolded portion is part of the problem with universal background checks.

 

[JimDandy]

I do not agree entirely. This harkens back to our discussions of the commerce clause in this thread. It should not take nine distinguished justices to define "interstate" and "commerce", or misdefine those terms.

No universal background check has previously been found constitutional or withstood constitutional challenge. Any such system that infringes the right described in the Second Amendment should run afoul of that amendment.

But the background check itself has been. I would not have objected to a characterization of Mr. Pfleuger's objection as personal belief it is outside the powers of the federal government. I objected to the characterization of it being "demonstrably" out implying precedent.

Originally Posted by JD
4) No system will ever be omnipotent. A system that does the most it can, while intruding as little as possible is a goal worth aiming for, however.

Emphasis added. The bolded portion is part of the problem with universal background checks.

Have you an idea for efficiently restricting the flow of firearms to prohibited persons that is less intrusive, yet still not defeated by a color copier and a pickpocket?

 

[zukiphile]

Have you an idea for efficiently restricting the flow of firearms to prohibited persons that is less intrusive, yet still not defeated by a color copier and a pickpocket?

Yes. I would make prohibited persons criminally culpable for receiving an item they are prohibited from possessing.

I believe this is already done.

 

[JimDandy]

Yes. I would make prohibited persons criminally culpable for receiving an item they are prohibited from possessing.

I believe this is already done.

And I believe you, and others have raised, as one objection, the premise that criminals do not follow the laws, so creating a law they won't follow will have no effect.

 

[zukiphile]

And I believe you, and others have raised, as one objection, the premise that criminals do not follow the laws, so creating a law they won't follow will have no effect.

Indeed. Creating a new law will likely have very little effect. Coupling that observation with the observation that a three party universal background check will become a significant administrative burden borne almost exclusively by individuals entitled to possess firearms under federal law succinctly explains why so many people here find universal background checks odious.

 

[JimDandy]

I challenge you to provide a provision of the federal Constitution or federal case law indicating that "encouraging the right thing" suffices as an independent basis for federal authority.

In that case, I direct you to Footnote 4, of the decision in United States v Carolene Products Co 304 U.S. 144 (1938) The birthplace of the standards of review. All three standards suggest the law must serve a government interest- While both that phraseology and "doing the right thing" are exceedingly vague, I believe encouraging its citizenry to do the right thing is a government interest.

 

[Kochman]

What boggles my mind is that some people act as though if it isn't explicitly in the COTUS, it's not ok.
Some things are implied/understood... the basis of law, through history, is pretty much to encourage the proper behavior or discourage improper behavior... that's why laws exist.

The COTUS is not a stand alone document.
Hell, to get passed, it had to have an explicit set of amendments right off the bat!

 

[JimDandy]

Indeed. Creating a new law will likely have very little effect.

Creating a new law may or may not have effect, based on the law being created.

However, to get back on point- You asserted criminalizing the possession of firearms to prohibited persons will restrict the flow of firearms to their hands. You then further asserted this is already so. I concede both those points.

I now ask you- if that is still happening- which I hope you would concede- the purpose is not being served, and it is not restricting the flow of firearms to prohibited persons. I feel that grants me leave to repeat my original question- Have you an idea to efficiently restrict the flow of firearms to prohibited persons?