Background checks - controversy

[zukiphile]

Crying over spilled milk" is unproductive. We live within the reality we live in, and it can be adjusted, but it's a process, just like it was a process to get it where it is now.
Things get regulated. We can regulate smartly, from our side... or, when we fail to self-regulate, and repeated cases of it are made clear, there will be support for the other side which will regulate much more draconically.

This signals a significant shift in your argument. The cake sharing story comes to mind.

I would suggest that determining how milk gets spilled could be useful in preventing future spills.

@Z
You're putting words in my mouth.
If a seller wittingly sells to an illegal person, there is liability.

I have responded to your text.

If there is criminal liability for a knowing sale to a prohibited person, you do not need a 4473 check, right?

But, that's not what I am saying, I said the illegal person would get charged with 3 crimes, rather than two. This technique is used all the time in law and order...

Law&Order, the television program? I do not know how it is in your state. In my state, a court cannot redundantly sentence to crimes for the very same act. Sentencing is limited to the more serious charge.

Indeed, that is a significant problem with the argument for your proposal.

Actually, it was more the fallicy of your point...

That is incorrect. There is no logical fallacy in noting that your argument for your proposal rests on your own implausible speculation.

That you consider a purchase from an FFL minimal does not bind anyone else to the same conclusion.

OK, prove the undue burden.

As a preliminary matter, you have not demonstrated let alone proven the appropriate burden imposed by your proposal. Merely shifting the burden of proof does not alter the topography of the argument.

That said, circumstances in which the burden involved is undue are not difficult to explain.

The right described by the Second Amendment is a fundamental right. In order to abridge a fundamental right a law should be narrowly tailored to achieve a compelling governmental interest.

Imposing criminal liability on every individual everywhere who otherwise legally transfers a firearm, the transfer by which the right described in the Second Amendment is exercised, imposes a criminal liability on the exercise a valid constitutional right. The proposal is not narrowly tailored; on the contrary it is so broad that the word universal is the common description for its scope.

Moreover, the federal government has no compelling governmental interest in running a background check on me, an individual entitled to my full complement of civil rights, before I am entitled to exercise that right.

If you doubt that, contemplate whether your proposal would work if applied to the right to vote, also a fundamental right. What is the result of your contemplation on that point?

 

[rc]

I think the big problem with "background checks" is that the [government] will try to link a registry system to this. This will help with future confiscation efforts. I don't think anybody has any doubts as to the ultimate goal of many in our society that is to use incidence of violence to push a political agenda. Did we outlaw the new ford V8 because it was a preferred ganster vehicle that would outrun the police? Uh, no. Do we outlaw driving because of car accidents or sports cas because they are often used wrecklessly? Uh, no!

We are now seeing an abuse of privacy in the health care system to look for individuals who may have taken a drug for a psycological diisorder like depression and using that as an excuse to confiscate guns from anyone living in the same household. Privacy and private property rights are ignored in a witch hunt to blame all gun owners for violence in America.

Here is my take on the currenty frenzy. We are seeing McCarthy era politics in America. American's through history have wanted to blame some group for the ills of the country.....So this is a human reaction to trajedy. The thing is we see after the fact how wrong it was to inturn Japanese American's....Blaming guns for crime and labeling gun owners as criminals is no less misguided...

If we could put a system in place that allows people who have never been involved in violent crime to obtain firearms without registration and without abuse of the system by prohibitting people who have never been convicted of a crime or ajudicated as a danger to the public then maybe background checks can gain some traxction. Until then it will be controversial becausee it is so ripe for abuse in the current political climate.

 

[I'vebeenduped]

Kochman, "My God man...
Look, the 4473 doesn't make it "impossible" for citizens to get guns. That's absurd."

I was quoting YOU with, because it makes it extra super double more expensive. What part of that DOESN'T make it impossible for citizens to obtain firearms????

 

[MLeake]

Kochman,

I am beginning to find you not just wrong, but offensive.

First, you claim that most people who oppose UBCs probably know they should be prohibited persons... Personally, I am a retired Naval Aviator, still work in a job which requires an active clearance, and have no worries about my ability to pass a check. I do think that could change if the government followed the lead of the UK or Australia, and I would rather not enable that.

Spats, whom you treat with veiled insults, is not likely prohibited either, due to a reason that leads to my second problem with you - he is a city attorney. So here is the second problem - you beat us over the head with your "it's all in the Preamble!" business, and act as though we are stupid when we ask when the Preamble has been accepted as case law. Yet some of those "stupid" people you denigrate are lawyers. What is your legal background?

My third problem with you is that you still have not addressed the volume of false positives, though you imply they are minimal. Yet the info you cited claimed 45,000 felons... so if 120,000 were stopped, that means 75,000 were non-felons. To you, this may be trivial...

So, you might try toning yourself down, behaving more respectfully, and actually answering fact-based questions. Or, you could just start to lose the audience when your bag of tricks annoys enough of them.

 

[zincwarrior]

Beating and leaving of a spouse isn't generally an overnight development...
Any stranger to stranger sale should be vetted. That's my opinion.

I really get tired of people thinking they are losing their rights because they have to fill out a form which simply reports if they've already lost their rights. It simply isn't accurate, and when you point that out to them and they continue to argue the same point, they create confusion and fear amongst people, and that's not a good thing, as it leads to knee-jerk reactions...

I was raised to be a responsible gun owner. I kind of expect gun owners to be responsible and thoughtful.

@Z
Any such unjustified loss is temporary. That's the key word.
And the 4473 is hardly "undue hardship".

Agreed generally.

EDIT: The temperature also seems ot be rising in the thread. Mayhaps we should all take a breather and remember this is just a discussion...

 

[csmsss]

I find the preamble argument hilarious. Were the preamble part of accepted case law, there would essentially be no action the government might take that could be ruled unconstitutional. "General welfare" is absurdly vague by ANY conceivable linguistic construction, and can be used to justify any behavior committed by the government, no matter how unconscionable.

 

[MLeake]

csmsss, didn't FDR use the Preamble when he decided to round up Japanese Americans and stick them in internment camps during WWII. Their detention was only temporary, though, right? I mean, except for the few who were old, or ill, and who died while interned... Or possibly for those who went home to find their homes burned down, razed, or looted...

Sure made a nervous public a lot less worried about the Yellow Peril, though, so it must have been worth doing.

 

[johnwilliamson062]

In my area the NICS check is going to average about 7% of the price of used guns sold assuming average price is about $400. FOr individuals with a lower income buying cheaper guns it will be more like 15%. In my exchanges were several Mosin Nagants and Nagant 1895 Revolvers. FOr those firearms it would have added almost 50% to the cost of transfer.

For a law, that like the initial NICs check, actually accomplishes NOTHING. If cartels can import MILLIONS of pounds of drugs across the Southern border, what in the world is going to stop them from bringing in guns to sell to the criminal organizations they already supply with drugs? they already do business in countries where full auto weapons are widely available as there is a large overlap with countries manufacturing drugs. These laws have never worked and will not work now. At best they will limit gun ownership to organized crime empowering them to terrorize law abiding citizens as was done in Chicago and New York in the past.

 

[csmsss]

csmsss, didn't FDR use the Preamble when he decided to round up Japanese Americans and stick them in internment camps during WWII. Their detention was only temporary, though, right? I mean, except for the few who were old, or ill, and who died while interned... Or possibly for those who went home to find their homes burned down, razed, or looted...

Sure made a nervous public a lot less worried about the Yellow Peril, though, so it must have been worth doing.

Well, I wasn't around, so I can't be sure, but that would fit right in with his method of governance. It's not like America is a nation of constitutional scholars, and we were in a state of war at the time, so I doubt many folks were dotting the I's and crossing the T's vis a vis Japanese Americans' civil rights.

 

[JimDandy]

My third problem with you is that you still have not addressed the volume of false positives, though you imply they are minimal. Yet the info you cited claimed 45,000 felons... so if 120,000 were stopped, that means 75,000 were non-felons. To you, this may be trivial...

While I don't agree with the tone of his argument either, there's a possible hole in your logic as well here.

If 120,000 were stopped, 45,000 were felons, that does indeed leave 75,000 people. Even IF we concede the "felons" category includes those convicted of a prohibiting domestic violence crime, At least some of those 75,000 would/could also be illegal aliens, those adjudicated mentally deficient, subject to a restraining order, under current indictment, voluntarily renounced citizenship, and any others I may have forgotten. The "felons" category in the NICS Database is neither the first nor the second most prolific category for sourced records.

 

[rebs]

UBC can be argued here all day and night, but the gov is still going to to try to add more and more restrictions until they succeed in eliminating your 2nd amendment right all together. Their goal is to disarm the citizenry.

 

[johnwilliamson062]

In my area the NICS check is going to average about 7% of the price of used guns sold assuming average price is about $400. FOr individuals with a lower income buying cheaper guns it will be more like 15%. In my exchanges were several Mosin Nagants and Nagant 1895 Revolvers. FOr those firearms it would have added almost 50% to the cost of transfer.

For a law, that like the initial NICs check, actually accomplishes NOTHING. If cartels can import MILLIONS of pounds of drugs across the Southern border, what in the world is going to stop them from bringing in guns to sell to the criminal organizations they already supply with drugs? they already do business in countries where full auto weapons are widely available as there is a large overlap with countries manufacturing drugs. THe distribution network is set-up from country of origin to end user.
These laws have never worked and will not work now. At best they will limit gun ownership to organized crime empowering them to terrorize law abiding citizens as was done in Chicago and New York in the past.

 

[zukiphile]

While I don't agree with the tone of his argument either, there's a possible hole in your logic as well here.

Jim, that strikes me as a sound analysis. Felons are not the only prohibited persons.

Let us assume that every single last one of those 120,000 applicants were correctly denied. Each of those 120,000 applicants was dealing with the federal licensee, and the federal government regulates those licensees and their transfers.

I am not a federal licensee. My civil rights should not evaporate simply because someone thinks they have a better idea.

 

[JimDandy]

We lost the commerce clause argument a long time ago.

The fact remains that if a firearm constructed in New York uses metal mined in Nevada, and is sold in Iowa, it's in interstate commerce.

If you, yourself make in Oklahoma, with aluminum you mined yourself and carry it concealed to your sister's brother-in-law's cousins family BBQ 60 miles south in Texas, it's interstate commerce.

Whether you buy from a store in Tallahassee or your neighbor in Montpelier, it's a private transaction.

And if the firearm is in interstate trade, the Feds have the authority to regulate it.

 

[MLeake]

csmsss, maybe I was thinking about Andrew Jackson forcing the Cherokee onto the Trail of Tears. Ask any Native American, they can tell you the US government never overreaches, nor reneges on promises about future behavior.

JimDandy, sure, some probably fall into those categories. The question is, how many? And of those, how many truly should have been in those categories, as opposed to just being lumped in there due to outdated records or improper rulings?

Kochman, on your idea of battered women being smarter, and leaving abusive relationships sooner...

Him: If you only acted like you should, this would not happen
Her: I am trying. What am I doing wrong?

Him: You know!
Her: No, I don't, how should I act?

Him: I am sorry, I love you, I will never do that again.
Her: Really? I hope that is true.

Him: I had to hit you, you just kept nagging!
Her: How can I make you happy?

Now, go back and substitute "Gun Controllers" for him, and "Gun Owners" for her, and tell me about learning to leave the situation, Kochman.

 

[Brian Pfleuger]

We've lost some very disheartening Commerce Clause battles. We need to keep fighting. It is, without a shadow of a doubt, the most abused power in the entire COTUS.

Just like we've lost some very disheartening RKBA battle, but we kept fighting and we are now on the verge of significant break-throughs.

The Commerce Clause is not an acceptable argument for background checks and never will be. We must fight.

 

[JimDandy]

The Commerce Clause is not an acceptable argument for background checks and never will be. We must fight.

I'm going to assume you believe "prohibited persons" should not, and do not have a right to keep and bear arms?

Given the-

Right to travel
general purpose of the Feds to mediate, broker, and buffer the sovereign states in our dual sovereignty system

How do you propose the State of Hawaii know if the resident of Maine know is a prohibited person without background checks?

 

[Brian Pfleuger]

Though my list of "prohibited persons" would be much shorter than current law, but yes.

However, it is a state issue. The states have no trouble cooperating on driver's licenses/registrations and they'd have no trouble cooperating here either, should they so choose.

 

[zukiphile]

I'm going to assume you believe "prohibited persons" should not, and do not have a right to keep and bear arms?

That is a result of due process, not the commerce clause.

And if the firearm is in interstate trade, the Feds have the authority to regulate it.

Within limits. The federal government can regulate the process by which the metal is treated on environmental grounds, they can regulate the wages and pensions and medical benefits of the people who manufacture the arms.

The federal government is not granted the plenary authority under the Constitution to regulate individual exercise of Second Amendment rights.

Newspapers are in interstate commerce. The federal government has authority to regulate newspapers within limits. They can regulate the processes by which paper is manufactured, and they can regulate the wages and pensions and medical benefits of the people who make the paper and print it.

The federal government is not granted the plenary authority under the Constitution to regulate individual exercise of the right of free speech.

 

[gaseousclay]

I'm going to pre-empt this with some caveats.
1) I've been around firearms all my life
2) I was military, now work for LE
3) I own and will always
4) I am not a democrat, or progressive, I'm an unaffiliated independent who thinks both parties are FUBAR

However, I've been a little disturbed by some people refusing any way shape or form of background checks. Personally, I like selling to someone I KNOW has been at least minimally vetted. The system is far from perfect, granted, but it is a much better system than saying something like you can sniff out a bad guy during your 5 minute meeting with cash in hand and deny the sale based on your gut.

I personally believe that, without any associated government record keeping, continued use of 4473 (and prosecution of liars on the form) is a good thing. It is responsible gun ownership... how I was raised.

To sell to someone without this, in my opinion, is a behavior that should be checked. You simply cannot know if the person is a sociopath.

Force them to go to the black market, which they will always be able too... but when they do, and they go kill people, and it comes back that the gun wasn't legally purchased, it helps our cause... because the media can't say, "look how easy it is to buy guns!".

Lanza actually WAS stopped by gun control. He tried to buy in CT two days before the massacre, and was turned down.
The problem? His mother was an irresponsible creature who left guns within easy reach of an autistic kid (basically Asperger's, which is a form of Autism) with other serious problems who was obsessed with guns, violent games, and his being turned down for military service. Not good.

In 2002-2003, over 120k form 4473s led to rejection. This is a good thing. The DoJ only prosecuted less than 1% of them, however, which is a bad thing. At a minimum, we know some of those people went on to get guns, though they shouldn't have them... but, wasn't it good that all of them didn't get them? Can we work on the system and make it good, so less killings are likely, which will create better statistics to boost our argument for future occurences?

I think the knee-jerk "no compromise" position is a classic case of cutting off one's nose despite one's face.

completely agree. I don't equate 'doing the right thing' as a restriction. I hate the idea that if I were to sell a gun to someone in a private transaction that person could turn around and use it in a crime. the notion that, "well, he seemed like a nice guy in person," doesn't cut it.