Background checks - controversy

JD said:
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.
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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.
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JD, you are correct that the term "governmental interest" will be found in the tests applied to determine the constitutionality of the challenged law. In the case of a fundamental liberty, here the right to keep and bear arms, that governmental interest must be compelling and the legislation involved must be narrowly tailored. Some decisions note that the burden imposed by the challenged legislation should be the "least burdensome".

Mere allegation of a governmental interest in itself is not sufficient to establish constitutionality. It is also not plain that "encouraging the right thing" is itself a governmental interest. People have all sorts of different ideas about what "the right thing" is and the process of moral persuasion is not ideally relegated to the federal government.
 
Mere allegation of a governmental interest in itself is not sufficient to establish constitutionality.
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Mere allegation of anything is not sufficient for much of anything. Mere allegation will not even sustain a grand jury.

I was being intentionally broad, that's why I included all three bases for review, because the question itself was general. A law requiring the D.O.T to subsidize a national ad campaign to reduce drunk driving, if challenged for some unlikely but possible reason, would likely fall under Rational Basis review. It would be in the government's interest to encourage its citizens to "do the right thing" and not drive impaired.
 
JD said:
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?
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My answer would not change. Criminalizing the possession of firearms by those who by means of due process no longer have the right to possess those arms is an efficient way to restrict arms to those people.

We do not require perfection.

JD said:
The NICS system is not perfect.
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Indeed. Neither are speed limits. We could put the sale and purchase of cars that can travel over 65 mph under the authority the federal government, which would encourage people not to purchase cars that go too fast (i.e. encourage them to do the right thing) and would almost assuredly reduce the frequency with which people exceed speed limits. Yet, we consider speed limits sufficiently effective for the purpose of regulating traffic.

I could fashion legislation that if an active would absolutely stop all speeding, but no reasonable person would consider that sort of law efficient.


Apologies. I will have to return to this later; I have a lunch I cannot put off.
 
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Kochman, do you not understand that the feds are only supposd to enjoy enumerated powers, and that the Constitution was deliberately set up in such a way as to leave most criminal law up to the states?

Laws are supposed to serve some good purpose, nobody is arguing against that. What they are arguing is under what circumstances, under the Constitution, the feds are allowed to dictate to the states. Those circumstances are, and were deliberately designed to be, very narrow in scope.

You do not seem to want to discuss the issues of federal power grabs, nor the examples I provided where the US government, not Stalin, oppressed and even murdered people on our mainland. Why is that?
 
My answer would not change. Criminalizing the possession of firearms by those who by means of due process no longer have the right to possess those arms is an efficient way to restrict arms to those people.

We do not require perfect.
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Many of the people objecting to the extension of the NICS system to private sales use just that requirement to object to it. Some version of "People would get around it anyway".
 
Kochman, do you not understand that the feds are only supposd to enjoy enumerated powers, and that the Constitution was deliberately set up in such a way as to leave most criminal law up to the states?
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MLeake, you do understand that the 10th Amendment became invalid with the Civil War because the south chose to not back down on slavery (the abolishment of which would have destroyed their economy... which was destroyed anyhow in the end).
 
No, it did not. You will notice that it, unlike Prohibition, was never repealed.

You do seem to argue quite a bit from a "might makes right" viewpoint, though.
 
I didn't say I supported it, but merely that that's the reality of the situation.

Bush and Obama both regularly violate the BoR as well... so, those are going away.
4th, 5th, 6th... Obama would love to get rid of the 2A, and turn it only into a privilege (read, something only the rich can do, like in Europe).
 
...the 10th Amendment became invalid with the Civil War ..
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No. See National League of Cities.

JD said:
Many of the people objecting to the extension of the NICS system to private sales use just that requirement to object to it. Some version of "People would get around it anyway".
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I do not understand the objection to be that a universal background check might still permit a prohibited person to gain possession of a firearm, but that it will unduly burden those who are not prohibited.
 
So, to prevent them from chiseling away at the BoR, you suggest giving them more power?

Are you familiar with Neville Chamberlain?

Edit: question for Kochman, not Z; but Z is correct about one of the major objections.
 
I don't see expanding background checks as a "giving them more power" situation, really. I see it as a power they already have, and a justifiable power at that... so, I support it, but I support it being done effectively.

And, again, it's not an "unjust" burden to do one... if that's your argument guys, you're going to lose in any court of law in the country. It won't even get lose to the SC.
 
No, it did not. You will notice that it, unlike Prohibition, was never repealed.
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It has however been chipped away at quite a bit. In a bit of searching, New York v United States 488 U.S. 1041 (1992) was the only case I was able to find where the holdings benefited the State over the Federal government, along with an opinion that recent jurisprudence has been for the Federal government in most cases that do not deal with the Federal Government attempting to control state resources for it's own purposes.
 
MLeake:
Having the system "indemnify" sellers would imply that they otherwise should bear a liability that they don't bear. So, I don't like the indemnity bit on second thought, but would still be ok with an OPTIONAL system, if costs were supportable.
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When I've seen that in legislation, the writers usually specifically point out some version of "such indemnity does not, and should not be used to imply culpability" or some such legalese.
 
Kochman,

Take your only the rich concept...

Now let's look at a single mother, whose kids have allergies and require regular treatment. She works, and goes to school in hopes of eventually getting a better paying job. (I know somebody in this position, so I chose it for discussion.)

Say she needs a gun due to threats from a guy she had dated, who became a stalker.

You want her to come up with not only the money for a decent gun (let us say $275 for a used model 10), but also $50 for the transfer fee in her area, plus the time (between work, school, and kids) and gas money to drive to an FFL?

Note: This assumes FFLs don't exploit the newly formed federal racket, and jack fees up to $100 as they have in some areas.

Huh.... Sounds kind of like what you describe as a bad thing, in Europe.
 
I do not understand the objection to be that a universal background check might still permit a prohibited person to gain possession of a firearm, but that it will unduly burden those who are not prohibited.
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I understand it to be both- i.e. They'll just get around it, so why make me do it.
 
My previous post described the barriers to the single mom getting a gun in the first place. Now, let us look at carry.

She is not ex-mil or ex-LE, and she is in Florida, so now she has to complete a training course. This costs $150, and takes a full evening, so she needs to pay a sitter.

She also has to go to the Sheriff's office to get fingerprinted, and pay for that, plus her permit application fee to the Dept of Agriculture. At this point, she is out about $400 on top of the cost of the gun, plus around 8 hours of time.

Once again, gun control is about preventing the poor from keeping and bearing.
 
Very few rights are free. While we can all sympathize with this quasi-hypothetical woman. I realize she's based on someone you know, but we're discussing a woman LIKE her, not her- so any statements made are generalizations, and not opinions of a woman I don't know or know of. In other words, no insult to her is intended.

I am by no means well off. I also realize while I have a right to travel, that does not mean I have a right to own my own 747. Or to skip any registration fees on my automobiles.

If I can not afford an attorney one will be provided for me. That does not mean if I can afford one, one will be provided for me. Or that if I cannot afford an automobile, I can sign up for a free one at the next police auction.
 
In public, sure.

In AK, VT, WY for examples, she would only be out the $275, and those states do NOT have higher violent crime rates, so what is your point?

One of my points would be that several decades of gun control have conditioned many Americans to think Constitutional carry to be crazy and dangerous, yet facts don't bear them out.
 
JimDandy, you have no Constitutionally guaranteed right to own an automobile or airplane. You do have a Constitutionally guaranteed right to keep and bear arms.
 
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