Does it matter that a person who voluntarily applies for a FFL accepts the regulations surrounding the license and implicitly waives the exercise of various constitutional rights? OTOH, private individuals have not entered into such a voluntary contractual arrangement with the government and retain the ability to exercise all of their constitutional rights.
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Background checks - controversy
- Thread starter Kochman
- Start date
Evan Thomas
Inactive
Yes, it's voluntary. No one forces firearms dealers to go into that line of work.
There's some sort of analogy here with people who volunteer to join the armed forces. By doing so, they agree to subject themselves to the UCMJ, and their constitutional rights, such as their First Amendment right to criticize the Commander-in-Chief, are circumscribed for the period of their enlistment.
There's some sort of analogy here with people who volunteer to join the armed forces. By doing so, they agree to subject themselves to the UCMJ, and their constitutional rights, such as their First Amendment right to criticize the Commander-in-Chief, are circumscribed for the period of their enlistment.
Spats McGee
Administrator
For starters, FFL is a profession. In theory, one earns a profit by being an FFL. As we all know, exercising the RKBA costs $.
Brian Pfleuger
Moderator Emeritus
I don't see background checks being an FFL issue, per say.
They're unconstitutional because the act of selling a gun to someone is no different than selling them a head of lettuce.
If the Feds said that you had to have an FFL to purchase firearms across state lines for resale, and you, the FFL holder, had to pass a background check, fine, that's interstate commerce.
Me buying the gun is not interstate commerce. You're in my state, I'm in your state, the gun is in our state. It's not interstate.
It's not really an interference to the FFL making a living, it's not even particularly an interference with the buyer if they're legal.
The issue is not if it's good or bad or hard or whatever to do background checks, it's do the Feds have the constitutional authority?
It doesn't matter how good the idea is if they don't have the authority.
They're unconstitutional because the act of selling a gun to someone is no different than selling them a head of lettuce.
If the Feds said that you had to have an FFL to purchase firearms across state lines for resale, and you, the FFL holder, had to pass a background check, fine, that's interstate commerce.
Me buying the gun is not interstate commerce. You're in my state, I'm in your state, the gun is in our state. It's not interstate.
It's not really an interference to the FFL making a living, it's not even particularly an interference with the buyer if they're legal.
The issue is not if it's good or bad or hard or whatever to do background checks, it's do the Feds have the constitutional authority?
It doesn't matter how good the idea is if they don't have the authority.
Evan Thomas
Inactive
The right to keep and bear arms is just that -- a right. There is no "right to have a job."How is volunteering to be an FFL any different than volunteering to keep and bear arms?
I never claimed that -- it's a straw man argument. At the moment, we have, in principle, a volunteer military. (The subject of whether there's an "economic draft," in which the military becomes the job of last resort for poor, undereducated young people, is a subject for another time and another forum.)Edit: I'm also not ready to stipulate everyone (ever)in the military and subject to the UCMJ volunteered.
When a draft has been in place, it has been either during a time of national emergency, or for a quite limited duration: two years, when we last had one in effect. Once that period is up, reenlistment is voluntary; the curtailment of rights during military service is one reason this is essential. And, (again in principle) a draft is meant to universal, hence fair.
This says differently. And if they have a right to a job for being a protected class, under P or I, I have to assume I sure as heck do too.The right to keep and bear arms is just that -- a right. There is no "right to have a job."
Now if you meant you don't have a right to be an FFL, I can see that distinction, but again ask why interference in a man's FFL business was a valid claim/part of the complaint against the NY Safe Act being discussed in other threads.
Spats McGee
Administrator
Well, I haven't read that in depth, but it starts with "If you have a right to work . . . " (emphasis supplied). As a general matter, no one has a right to a particular job. They do have a right not to be denied that particular job based on their membership in a protected class, but that's a different right. For example, let's say I want to go be a police officer. Presumably, I have the requisite legal knowledge and I'm a reasonably good shot (for a civilian). The local PD can deny membership in the incoming Academy class, because I'm also out of shape. It cannot deny me membership into the incoming Academy class based on my race or my gender. Technically, they can't deny me admission because of my age (over 40), either.JimDandy said:This says differently. And if they have a right to a job for being a protected class, under P or I, I have to assume I sure as heck do too.
Spats McGee
Administrator
Well, ok, but here's the last part:
My point is that we do not start from the proposition that "X has a right to a particular job." Someone has the right not to be denied a job, or treated differently in the terms and conditions of his or her employment due to certain prohibited reasons (race, gender, age, etc.)
If you start from the idea that "X has a right to a job," then the employer is required to find reasons NOT to hire him or her, regardless of things like whether the employer has an open position, or whether X is actually qualified for the job.
If you have been denied work or fired because of your nationality, appearance, or accent, you have the right to file a charge of discrimination with OSC. OSC can help you in getting the job you lost because of the discrimination. You can also receive pay for the days you missed work.
If an employer has denied you work or fired you because he/she will not accept your work authorization as proof of your legal right to work in the U.S., or only hires U.S. citizens or permanent residents, he/she is breaking the law. You need to show the employer the Lists of Legal Work Papers that appear on the back of the 1-9 form. If the employer still insists on seeing a particular document, or refuses to hire you, call OSC right away.
Visit the OSC web site at:
wwwjustice.gov!crt/osc
My point is that we do not start from the proposition that "X has a right to a particular job." Someone has the right not to be denied a job, or treated differently in the terms and conditions of his or her employment due to certain prohibited reasons (race, gender, age, etc.)
If you start from the idea that "X has a right to a job," then the employer is required to find reasons NOT to hire him or her, regardless of things like whether the employer has an open position, or whether X is actually qualified for the job.
Vanya, sorry for any veer, but several of my friends who have been affected by Stop-Loss might disagree with you about all reenlistments being voluntary.
Also, military personnel CAN criticize the President and other elected officials, but they must do so as private individuals (EG, not in uniform, signed Tom Murphy from Pennsylvania, not CPT Tom Murphy, 173rd Airborne, USA).
Also, military personnel CAN criticize the President and other elected officials, but they must do so as private individuals (EG, not in uniform, signed Tom Murphy from Pennsylvania, not CPT Tom Murphy, 173rd Airborne, USA).
Evan Thomas
Inactive
I'm well aware of that issue, hence my phrasing:MLeake said:Vanya, sorry for any veer, but several of my friends who have been affected by Stop-Loss might disagree with you about all reenlistments being voluntary.
Vanya said:At the moment, we have, in principle, a volunteer military.
If you start from the idea that "X has a right to a job," then the employer is required to find reasons NOT to hire him or her, regardless of things like whether the employer has an open position, or whether X is actually qualified for the job.
I don't believe that follows. First, because the constitution protects rights from the government, not private business - IN GENERAL, and Second, because other rights don't work that way. A right to keep and bear arms doesn't mean the FFL has to find a reason NOT to transfer a firearm to you regardless of whether you have the money, or are a qualified (as in not prohibited) to bear arms.
As a general matter, no one has a right to a particular job.
How does that interact with Edward R. Holtz v. State of New York, et. al.
Spats McGee
Administrator
Well, Jim, my analogy wasn't perfect, I'll grant you. However, the Civil Rights Act of 1964 protects certain classes of persons from discrimination in the provision of public services (like whether FFLs will provide services to protected classes of persons). There are statutory rights, and there are constitutional rights. Employment rights are based on the Equal Protection clause of the 14th Amendment, and (at least in part) extended to us by statute.
However, there is no constitutional right to a particular job. Only not to be discriminated on in the terms and conditions of employment based upon membership in a protected class. Honest. I'm just too tired to dig up citations right now. You'll have to wait until tomorrow.
As far as Edward R. Holtz v. State of New York, I don't know. It looks like a state court proceeding, and I can't find it in Westlaw. From what I can tell, that might be a state court proceeding, which means that a good chunk of it might be based on NY state law. That's a different question from federal constitutional law.
However, there is no constitutional right to a particular job. Only not to be discriminated on in the terms and conditions of employment based upon membership in a protected class. Honest. I'm just too tired to dig up citations right now. You'll have to wait until tomorrow.
As far as Edward R. Holtz v. State of New York, I don't know. It looks like a state court proceeding, and I can't find it in Westlaw. From what I can tell, that might be a state court proceeding, which means that a good chunk of it might be based on NY state law. That's a different question from federal constitutional law.
Evan Thomas
Inactive
From the description in the linked thread, it's a suit that was filed at the end of February, so it's a rather long way from being something one can cite as a precedent -- for much of anything.As far as Edward R. Holtz v. State of New York, I don't know. It looks like a state court proceeding, and I can't find it in Westlaw.
I’ve read through many of these and I think the focus is inadvertently on the seller and law-abiding purchaser; why not the criminal or those restricted due to mental or other gun-prohibitive conditions?
I know this goes along with a voter ID card and the ACLU would flip their lid, but how about those who have lost their 2A rights get a small symbol on their driver’s license or other state recognized ID card prohibiting them from owning or purchasing firearms.
Sure, I would not knowingly sell any firearm to a criminal, but I shouldn’t have to jump through hoops just so it’s “seller beware”; that’s absurd and I wouldn’t want to maintain records of sales for the rest of my life. Likewise, as a buyer, I shouldn’t have to undergo unreasonable burdens just to exercise my rights.
In my world, I show you a valid driver’s license without the gun-restriction symbol and we make the sale. If the ID looks sketchy, you have the right not to make the sale. Put the burden on those who have lost their rights, not on those who obey the law.
The current background system doesn’t work and just as mentioned, failed NICS or background checks are rarely followed up on and even fewer prosecutions.
First case in point: I was denied a firearm sale when I moved from KS to TX. The burden was definitely on me to clear it all up and I underwent a more stringent background check and I’m now part of the Voluntary Appeals File for my NICS checks because some jackass used my SSN while attempting to purchase a firearm in KS. Had I not pursed the attention to clear up this NICS red flag, there was no follow up or calls why I failed. If I was a criminal, I just move on to other sources…
Second case in point: I was recently renewing my FL CHL and was denied continued processing as I failed a background check. Understand, I’ve been Active Duty Army with a TS/SCI clearance for the past two decades and not even a speeding ticket on file for over a decade. Not that it matters, but FL found a red-flag on an arrest in WA state about five years ago (WA state is still my home of record even though I haven’t resided there in over 20 years)….the same time I was deployed to Iraq. NICS and the more encompassing NCIC help desks at the FBI level didn’t see anything and even the WA state police, country sheriff’s office and local PD of the alleged incident couldn’t explain the issue. An inverted or badly recorded incident somehow tagged me during some incident that wasn’t even an arrest (mistaken ID)…yet some FL state clerk found it (kudos to the clerk but an inadvertent anomaly). The criminal (not even touching on the mental health inclusion) background system is far from perfect with too many disparate system feeds and a poorly federated database that will always be prone to human error.
I just think your driver’s license or state-issued ID card should be your proof of gun ownership. If you’re a criminal, especially at local levels, your tagged and it should show on your driver’s license. If for any reason you lost your right to own a firearm due to charged criminal activity, the burden should be on you to clear it up and remove that restrictive symbol on your ID card. I would suspect that 97-98% of the population could legally own or purchase firearms; why burden them for the 1-2% of the population? Burden that 1-2%...
Now, during my FL CHL debacle, I did find the WA State “WATCH” on-line criminal checking system pretty cool. It did cost me $10, but like already mentioned, these are simple background checks to see if somebody has a criminal record. All that was needed was the full name and birth date. Of course, it just listed four or five others with similar names and birth dates close to mine, but none were even close…so according to that system and the print out, I wasn’t a criminal in WA State. Make a national system like that, accessible to everyone and make the “certificate” valid for a year and allow buyers to show the seller their non-criminal certificate before purchasing a firearm. I like the idea and it would allow you to check on yourself much like a credit check to make sure there are no “issues” prior to purchasing and it then puts the proof back on the buyer and not the seller. I would be in favor of a system like this as there are no records of the buyers, only records of the criminals who are prohibited from owning a firearm (it could also eventually include those with restrictive mental health diagnosis without violating privacy acts as only that individual would see the results). As a seller, someone shows me a valid certificate and a photo ID and I would be satisfied and the burden is less than a current 4473.
Of course this would fly in the face of the liberal goal of records tracking and registration, but it would allow the people to police themselves and the a national criminal data base would be easier to federate and manage vice a database of gun sales of law abiding citizens (again, only tracking 1-2% of the population instead of the 98-99% of the population).
Just some thoughts borne from my own personal frustration…
ROCK6
I know this goes along with a voter ID card and the ACLU would flip their lid, but how about those who have lost their 2A rights get a small symbol on their driver’s license or other state recognized ID card prohibiting them from owning or purchasing firearms.
Sure, I would not knowingly sell any firearm to a criminal, but I shouldn’t have to jump through hoops just so it’s “seller beware”; that’s absurd and I wouldn’t want to maintain records of sales for the rest of my life. Likewise, as a buyer, I shouldn’t have to undergo unreasonable burdens just to exercise my rights.
In my world, I show you a valid driver’s license without the gun-restriction symbol and we make the sale. If the ID looks sketchy, you have the right not to make the sale. Put the burden on those who have lost their rights, not on those who obey the law.
The current background system doesn’t work and just as mentioned, failed NICS or background checks are rarely followed up on and even fewer prosecutions.
First case in point: I was denied a firearm sale when I moved from KS to TX. The burden was definitely on me to clear it all up and I underwent a more stringent background check and I’m now part of the Voluntary Appeals File for my NICS checks because some jackass used my SSN while attempting to purchase a firearm in KS. Had I not pursed the attention to clear up this NICS red flag, there was no follow up or calls why I failed. If I was a criminal, I just move on to other sources…
Second case in point: I was recently renewing my FL CHL and was denied continued processing as I failed a background check. Understand, I’ve been Active Duty Army with a TS/SCI clearance for the past two decades and not even a speeding ticket on file for over a decade. Not that it matters, but FL found a red-flag on an arrest in WA state about five years ago (WA state is still my home of record even though I haven’t resided there in over 20 years)….the same time I was deployed to Iraq. NICS and the more encompassing NCIC help desks at the FBI level didn’t see anything and even the WA state police, country sheriff’s office and local PD of the alleged incident couldn’t explain the issue. An inverted or badly recorded incident somehow tagged me during some incident that wasn’t even an arrest (mistaken ID)…yet some FL state clerk found it (kudos to the clerk but an inadvertent anomaly). The criminal (not even touching on the mental health inclusion) background system is far from perfect with too many disparate system feeds and a poorly federated database that will always be prone to human error.
I just think your driver’s license or state-issued ID card should be your proof of gun ownership. If you’re a criminal, especially at local levels, your tagged and it should show on your driver’s license. If for any reason you lost your right to own a firearm due to charged criminal activity, the burden should be on you to clear it up and remove that restrictive symbol on your ID card. I would suspect that 97-98% of the population could legally own or purchase firearms; why burden them for the 1-2% of the population? Burden that 1-2%...
Now, during my FL CHL debacle, I did find the WA State “WATCH” on-line criminal checking system pretty cool. It did cost me $10, but like already mentioned, these are simple background checks to see if somebody has a criminal record. All that was needed was the full name and birth date. Of course, it just listed four or five others with similar names and birth dates close to mine, but none were even close…so according to that system and the print out, I wasn’t a criminal in WA State. Make a national system like that, accessible to everyone and make the “certificate” valid for a year and allow buyers to show the seller their non-criminal certificate before purchasing a firearm. I like the idea and it would allow you to check on yourself much like a credit check to make sure there are no “issues” prior to purchasing and it then puts the proof back on the buyer and not the seller. I would be in favor of a system like this as there are no records of the buyers, only records of the criminals who are prohibited from owning a firearm (it could also eventually include those with restrictive mental health diagnosis without violating privacy acts as only that individual would see the results). As a seller, someone shows me a valid certificate and a photo ID and I would be satisfied and the burden is less than a current 4473.
Of course this would fly in the face of the liberal goal of records tracking and registration, but it would allow the people to police themselves and the a national criminal data base would be easier to federate and manage vice a database of gun sales of law abiding citizens (again, only tracking 1-2% of the population instead of the 98-99% of the population).
Just some thoughts borne from my own personal frustration…
ROCK6