Background checks - controversy

[Spats McGee]

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."

Can you explain why? The person selling the firearm is a private citizen one way or another. The firearm is the same firearm.

The short story: Firearms dealers are federally licensed. Private individuals are not.

Longer: First of all, firearms purchases have not required background checks. In 1933, a 10-year-old could have ordered a machine gun through the mail, and it would have been delivered to his door. When Congress went to make background checks mandatory for FFL purchases, it claimed the power to regulate firearms dealers, because firearms travel in interstate commerce. However, once it becomes the personal property of an individual, there's no grant of Congressional authority to regulate its disposition.

As far as citing cases involving NICS denials and no-fly lists, give me a few minutes and I'll run a Westlaw search or three.

 

[JimDandy]

Courts do. Congress doesn't.

My bad. Didn't separate the three branches like I should have.

Congress can hold hearings and investigations, issuing subpoenas. They can't gag-order a journalist in a closed hearing?

 

[zukiphile]

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...

Brian, the point on which I believe we agree is that an individual retains the rights described in the Bill of Rights against the federal government even when those rights pertain to interstate commerce.

I believe that states are within their rights in denying fundamental constitutional rights were those rights are denied as a result of due process. For instance, if I walk into a school and kill a couple dozen people, upon conviction I should not expect to be able to vote or travel freely.

 

[zukiphile]

They can't gag-order a journalist in a closed hearing?

If a journalist is there, is it a closed hearing?

As far as citing cases involving NICS denials and no-fly lists, give me a few minutes and I'll run a Westlaw search or three.

My wild guess would be that since those are susceptible to administrative correction prior to adjudication, and because that kind of factual/evidentiary administrative determination is likely to be given deference by a court, you may be looking for a non-existent needle in the Westlaw haystack.

 

[Spats McGee]

Let me also address the "gun store vs. private citizen" issue. I have a right to many things. A right to a particular profession is not one of them. I have a right to be considered for a particular profession without regard to race, gender, or other protected status, but I do not have a right to be (for example) an FFL. If I want to enter that profession, I apply. In acting in my capacity as an FFL, I am bound by federal law on NICS checks. I still have my 2A rights, when I act as an individual citizen.

Just wait until I get started on individual and official capacity lawsuits under 42 USC 1983. . .

 

[Brian Pfleuger]

I believe that states are within their rights in denying fundamental constitutional rights were those rights are denied as a result of due process. For instance, if I walk into a school and kill a couple dozen people, upon conviction I should not expect to be able to vote or travel freely.

I think we agree completely.

I meant those things in the same way they apply to firearms law... Can they require "Universal Background Checks" for internet access, for example. Everyone would think that was silly, yet somehow it's ok with another, much more specific, fundamental right.

 

[zukiphile]

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.

An FFL effectively limits some of his fourth amendment protections because the pertinent regulatory/law enforcement agency is entitled to enter the address on theFFL during business hours and conduct a search without any warrant or reasonable suspicion. There are some perfectly good reasons not to be an FFL.

I am a different kind of government licensee. My state limits the kinds of statements I can make about courts and judges. Before AZ v. Bates people in my profession were prohibited from advertising in most states, or the manner in which they could advertise was severely regulated.

 

[JimDandy]

Let me also address the "gun store vs. private citizen" issue. I have a right to many things. A right to a particular profession is not one of them. I have a right to be considered for a particular profession without regard to race, gender, or other protected status, but I do not have a right to be (for example) an FFL.

True, but you don't NOT have a right to be one either. And part of the case against NY's Safe Act was that it interfered with the livelihood of a gun store owner. Understandably we have dual sovereignty, and Federal law trumps State, so maybe that's the conflict here. Or maybe it's one of those 9th amendment rights not quite enumerated.

What I'm still not wrapping my head around, is why an FFL is required, and NICS checks are constitutionally forced, if, he's also an individual with rights? Commerce Clause sure.. but on top of that, his store is probably a "Corprorate Citizen" that has rights as well not?

IF

• The FFL is a citizen with 2A rights
• His store is a corporate citizen with 2A rights?
• The firearm is in interstate commerce because it has moved across state lines to get to the store
• The firearm doesn't leave interstate commerce when it gets to the gun store
• The firearm still doesn't leave interstate commerce when it gets sold to a resident of the same state as the gun store

I think there's a concept I'm missing.

 

[Spats McGee]

The FFL is a citizen with 2A rights

Yes

His store is a corporate citizen with 2A rights?

Maybe

The firearm is in interstate commerce because it has moved across state lines to get to the store

Yes

The firearm doesn't leave interstate commerce when it gets to the gun store

Probably

The firearm still doesn't leave interstate commerce when it gets sold to a resident of the same state as the gun store

Maybe, but less likely

It sounds like you've got all the pieces, but you're just not quite sure how they fit together. Unfortunately, it's a little like having a 3-D jigsaw puzzle made out of sponges. It's a little squishy in this area.

 

[JimDandy]

The pieces I think I have the most problem with is why it's interstate commerce for FTF retail sale, but not for FTF second hand on the exact same firearm.

I can see it being one or the other in both cases. But I don't see how it swaps from Transaction A, to Transaction B.

The firearm is in interstate commerce because it has moved across state lines to get to the store
Yes

OK here we're on the same page.

The firearm doesn't leave interstate commerce when it gets to the gun store
Probably

Here's where I start to fall off. I get that it's in interstate trade when the FFL purchases the firearm, and it arrives. I think we all agree to that one.

Quote:
The firearm still doesn't leave interstate commerce when it gets sold to a resident of the same state as the gun store
Maybe, but less likely

And here's where I skin my knee trying to keep up. The interstate commerce occurs because the firearm moves across state lines. The Federal Govt has the authority to regulate the resale because of that- even if it sits in one state gun store shelf for 20 years. What changes in the firearm that they don't continue to have re-resale regulatory authority by passing through one or more sets of hands that may or may not cross state lines with it?

 

[Brian Pfleuger]

I agree, Jim.

And the most obvious and logical fallacy is that the gun is involved in IC when the dealer in a state sells it to a resident in that same state. That simply doesn't make sense to most people. It doesn't make sense if you substitute any other item for the gun.

In other words, federal background checks are unconstitutional.

 

[Vartarg]

Put me down....

Put me down for "knee jerk" responses to resist each and every encroachment of our Second Amendment rights.....

Their goal is to confiscate guns.....not now, but down the road, and they won't give up, and neither should we.

Just say NO

 

[Spats McGee]

Someone asked earlier about examples of giving up one right in exchange for keeping another. The best example I can come up with is: parolees. By contract (with the parole office), they effectively waive their A4 rights in return for freedom from confinement.

As far as the FTF transaction, Jim, don't focus on the firearm. Focus on the parties involved in the transaction.

 

[JimDandy]

Edited the previous post to more accurately reply to Spats Brian.

In other words, federal background checks are unconstitutional.

Given the GOA, NRA, and SAF why haven't they been challenged yet? Honest question, not being smart-mouthed. I think they'd be good, but I'm also open to the idea that good as it might be, they'd be unconstitutional.

 

[Spats McGee]

A constitutional challenge has an awful lot of moving parts, all of which need to be in the right place, at the right time. You've got to have:

• the right plaintiff(s)
• the right set of facts
• the right injuries/damages
• the right venue

It may simply be that the particular constellation of stuff hasn't arisen for the folks who want to challenge it.

 

[JimDandy]

Someone asked earlier about examples of giving up one right in exchange for keeping another. The best example I can come up with is: parolees. By contract (with the parole office), they effectively waive their A4 rights in return for freedom from confinement.

As far as the FTF transaction, Jim, don't focus on the firearm. Focus on the parties involved in the transaction.

That was me. And Are they giving up one right for another? They don't have 4A rights in prison either. They just get one right restored before the rest of them.. i.e. Freedom before 4A.

I've focused on both. The FFL is not acting as an agent of the government except as required by the BG Check itself, so with that not-withstanding, they're no more government agent than a second hand seller.

 

[JimDandy]

the right plaintiff(s)

Couldn't be found in 20 years?

the right set of facts
the right injuries/damages

The facts are the same for nearly everyone, as are the injuries- To purchase a firearm one must undergo a background check

the right venue

Which given the universal application of the law, can be chosen not? One can find a little old lady with a penchant for guns in all 50 states I would think.

So far, the only challenges I've seen/remember are the Printz case, and Schrader v Holder. I would think an Estelle Getty never convicted of anything type that doesn't want Uncle Sam getting in her business to overturn than Schrader for just a small section.

 

[Brian Pfleuger]

Jim,

How long was slavery upheld? Segregation? Take your pick.


Besides that, we'd have to roll-back the legal understanding of the Commerce Clause.

 

[Spats McGee]

Application of law is probably not as universal as you'd think, even when it comes to federal law. Remember that federal law still has to interact with some state law. For example, a prisoner bringing a 42 USC 1983 civil rights case for unlawful arrest must make reference to the criminal laws of the state in which he was arrested.

In terms of injury damages, you've also got to remember that the right plaintiff probably has a clean criminal record. That probably also means that he or she will be cleared by the NICS check. Ideally, Betty White will be wrongfully denied.

 

[JimDandy]

But if the check itself is unconstitutional, just having Betty White want a handgun without the check should be enough, not?