Background checks - controversy

I find the idea that the power of the federal government has been "reigned in" to be amusing, at best.

A single incident or two where power was regained by the people hardly counts as "reigning in".

I see a barn with the doors wide open and 49 of 50 horse stalls are empty, the sounds of hooves retreating in the distance still audible, with one stable boy standing with his arms outstretched, keeping the 50th horse in it's stall while yelling over his shoulder "Don' worry boss! I've got 'em reigned in!"

The power of the federal government has been anything and everything BUT reigned in. It has grown endlessly and incessantly, with nothing more than the tiniest blip to slow it along the way.
 
Pick your battles wasn't in reference to this bill...

It was in reference to those wanting the COTUS to be read at the strictest, and as a stand alone document, with nothing but Amendments allowed at the federal level.
 
Pick your battles wasn't in reference to this bill...

It was in reference to those wanting the COTUS to be read at the strictest, and as a stand alone document, with nothing but Amendments allowed at the federal level.
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I find that curious, because that what you describe above isn't "a" battle. It's a series of campaigns composed of a series of battles. No one has suggested that such a goal could be accomplished in this fight.

As I see it, we're just trying to hold our ground where and how possible.
 
A single incident or two where power was regained by the people hardly counts as "reigning in".
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Had the power of the federal government, as held in say.. Schenk not been reigned in- the Dixie Chicks, Cindy Sheehan, the Diplomats and Military Commanders for Change, then Senator and Presidential Candidate John Kerry, and countless others could/would have been convicted of violating the Espionage Act of 1917.
 
And yet, Kochman, the bar is supposed to be very high for the feds to be able to introduce new federal powers, including expansions of existing ones.

We should fight toward a goal of bringing federal government back in line with what the Constitution intended it to be. This was such a losing cause that it resulted in the election and reelection of Ronald Reagan...

Pendulums swing, of course, but that doesn't make it a bad idea to try to damp the amplitude, nor to try to push back.

What you suggest with regard to this bill, specifically, is to voluntarily cede more power to the feds, when they have already grabbed too much power; what you suggest is to voluntarily accept more restrictions against individual liberties and property rights - and in this specific case, those restrictions run counter to Constitutional protections. You suggest we should think this is the only reasonable and responsible option.

JimDandy, you say there is no harm in the bill, since the 4473 system exists anyway, and it just gives the State a chance to act on prior due process. Except that we have already established that a significant percentage of holds get overturned, eventually, so they are either no longer valid or they were never valid in the first place.

I ask what benefit comes from the bill? If you say that it could save lives, I counter that allowing the feds to grow, unfettered, can ultimately result in more loss of life; I would further argue that if avoidance of any casualties were the highest virtue, we might as well disband the military. Cold as it may sound, some things are more important than X number of shooting victims; preventing the government Leviathan from expanding beyond all control is one of those things I think is more important.

But that is beside the point, because you haven't made the case that all those stopped sales actually prevented any murders. You infer that they must have; yet you disregard the other potential inference, which is that systemic stops and delays may have resulted in fatal harms to victims of stalkers and domestic violence.

In other words, you can't prove that there have actually been lives saved; all you can prove is that there have been transactions stopped. And so far, neither of you have actually established what number of those transactions stopped should have been considered valid, nor what number were no longer valid, nor what number were never valid.

I'm not sure how you can argue minimal harms, when you fail to quantify the harms.
 
I'm not sure how you can argue minimal harms, when you fail to quantify the harms.
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I don't believe I've made any argument on harms either way, other than to point out the very same deprivation issue for the hypothetical "Battered woman" escaping her batterer to Kochman in the thread- though I have brushed up against them here and here.

I have acknowledged there are false holds, when I pointed out that if the 120K number is 45K and 75K many but not all of those holds will be for other reasons like citizenship, mental deficiency, and so on. False Delays are neither acceptable, nor bad faith on the part of the government/NICS system. And IF they were enough to make the system unconstitutional, it would have failed SCOTUS challenge.

Finally, stopping murders is not the basis of the case I make for them. Stopping the possession of firearms by a prohibited person is. There's demonstrable evidence that the checks have prevented a transfer to a prohibited person. There's also demonstrable evidence that other means exist to allow prohibited persons to achieve the goal of firearm ownership. I advocate extending a presumptively constitutional regulation to one of those other avenues.
 
JimDandy, I am not aware of a SCOTUS challenge having been brought yet, with regard to a false claim.

Maybe Spats, Frank, or Al know of one.

There are many laws out there that should not, and possibly would not, pass a SCOTUS challenge, but that have not been heard before SCOTUS.

Has there ever even been a federal circuit case about a false denial?
 
The only court case I can find is Printz v United States regarding the interim provision of the Brady Bill.


Edit: Which by the way was a victory for the States, a loss for the Feds and the Commerce Clause.
 
This thread does move along.

JD said:
There's demonstrable evidence that the checks have prevented a transfer to a prohibited person. There's also demonstrable evidence that other means exist to allow prohibited persons to achieve the goal of firearm ownership. I advocate extending a presumptively constitutional regulation to one of those other avenues.
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That is a succinct rendition of the proposal and its justification.

I note that there is no evidence that the 4473 prevents transfers to prohibited persons, only that it would prevent a transfer from a federal licensee. That system of federal licensees and 4473 checks is presumptively constitutional because a body, here the federal government, must necessarily have jurisdiction over its licensees or else they would not be its licensees.

Let us also note that those federal licensees agree to some impairment of what would otherwise be their fourth amendment protections.

Since an unlicensed individual purchasing a firearm is not a federal licensee, where does the federal government obtain the authority to determine whether that individual will be permitted to obtain the item that lets the individual exercise a fundamental liberty?
 
Since an unlicensed individual purchasing a firearm is not a federal licensee, where does the federal government obtain the authority to determine whether that individual will be permitted to obtain the item that lets the individual exercise a fundamental liberty?
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The same place they get the authority to license the Federal Firearms Licensee in the first place. The firearm has been in, affecting, and affected by, interstate commerce.
 
The same place they get the authority to license the Federal Firearms Licensee in the first place. The firearm has been in, affecting, and affected by, interstate commerce.
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Yet the GCA does not require federal assent prior to exercise of a fundamental liberty. You are proposing a change in the law under which federal assent would be required prior to exercise of a fundamental liberty.

Do you acknowledge the materiality of that difference?

If newspapers are in or affect interstate commerce, does the federal government have the authority to restrain their publication? Or is the federal power to regulate interstate commerce subject to the other limitations in the Constitution?
 
MLeake said:
JimDandy, I am not aware of a SCOTUS challenge having been brought yet, with regard to a false claim.

Maybe Spats, Frank, or Al know of one.
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I'm a little behind but if someone will tell me what kind of case you're looking for, I'll be glad to go on the hunt.

As far as the false positives on NICS checks and appeals, when balancing benefits against burdens against the tailoring to a government interest, remember that in 1993, when the Brady Bill was enacted, the 2A had not yet been declared a fundamental, individual right. Accordingly, the balancing test may have shifted when it was. Also, the requirement that a NICS check be performed "when a federally licensed firearms dealer sells a firearm" is completely different in scope (tailoring) than a requirment that one be performed "when a person other than one licensed by the federal government sells a firearm."
 
Hey wait! I may be able to cite this stuff reasonably correctly for you professionals, but I'm still a layman.

Yet the GCA does not require federal assent prior to exercise of a fundamental liberty. You are proposing a change in the law under which federal assent would be required prior to exercise of a fundamental liberty.
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You're going to have to translate that a LITTLE more for the English speaker in me. Not quite sure why it's assent from the Govt for an FFL transfer from their inventory, but not for a secondhand sale.
 
I'm a little behind but if someone will tell me what kind of case you're looking for, I'll be glad to go on the hunt.
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I would not presume to tell you how to do your non-job (as opposed to your real/day job), but I would include in that search the scenario in which someone gets on a "no-fly" list and cannot get off it.
 
Also, the requirement that a NICS check be performed "when a federally licensed firearms dealer sells a firearm" is completely different in scope (tailoring) than a requirment that one be performed "when a person other than one licensed by the federal government sells a firearm."
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Can you explain why? The person selling the firearm is a private citizen one way or another. The firearm is the same firearm.

And the kind of case is someone judicially challenging a false denial/delay from the NICS check.
 
JD said:
You're going to have to translate that a LITTLE more for the English speaker in me. Not quite sure why it's assent from the Govt for an FFL transfer from their inventory, but not for a secondhand sale.
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My apologies. I will try not to muddle this in translation.

The Gun Control Act does set forth as the basis of its authority the commerce clause, but the GCA does not function as a federal "Mother may I" before an ordinary citizen of any state can procure the firearm by which he exercises the fundamental right to keep and bear arms.

On the other hand, the change you suggest is a federal "Mother may I" that must be asked before an ordinary citizen can exercise his right.

Do you think that difference is important?

If newspapers are in or affect interstate commerce, does the federal government have the authority to restrain their publication? Or is the federal power to regulate interstate commerce subject to the other limitations in the Constitution?
 
Do you think that difference is important?
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Not trying to be difficult, but I don't see the difference between a private citizen who owns a gun store, and a private citizen selling his no-longer-desired possession as far as is covered by the GCA. Edit to clarify- can you explain what you feel the difference is?

If newspapers are in or affect interstate commerce, does the federal government have the authority to restrain their publication
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They have the authority to issue a gag order.
 
If newspapers are in or affect interstate commerce, does the federal government have the authority to restrain their publication? Or is the federal power to regulate interstate commerce subject to the other limitations in the Constitution?
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Or require background checks before you could access the internet, or require permits for all bull-horn purchases, or deny internet access to anyone convicted of a crime punishable by 3 or more years in prison, or require a permit to participate in church services, or deny access to clergy for convicted felons...
 
JD said:
They have the authority to issue a gag order.
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Courts do. Congress doesn't.

JD said:
I don't see the difference between a private citizen who owns a gun store, and a private citizen selling his no-longer-desired possession as far as is covered by the GCA.
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The first is a federal licensee. The second is an unlicensed individual protected by the Second Amendment.
 
The first is a federal licensee. The second is an unlicensed individual protected by the Second Amendment.
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The Federal licensee has Second Amendment Protection as well.

I'm not aware of- though I'd be figuratively/conversationally happy to learn of- any premise that one must surrender one right to enjoy another- i.e. 2A for right to livelihood.
 
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