Background checks - controversy

Oh, and a firearm that's being sold by a dealer in NY to a person in NY is not involved in "interstate commerce".

It WAS involved in interstate commerce when it came from the distributor in GA to the dealer in NY and the national government could constitutionally create a law that says "Firearms in transit from one state to another must be stored such that blah blah blah..."

That would be "regulating interstate commerce".

Once it's IN state and the commerce is IN state, it is not, by the very definition of the word, INTERstate commerce.
 
kochman,

from your own link:

On the other hand, courts will not interpret the Preamble to give the government powers that are not articulated elsewhere in the Constitution.
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The Preamble does not grant powers. Never has, never will. Law can not be based on the preamble. The power must be enumerated elsewhere.

What you're arguing is, in fact, the opposite of elsewhere enumerated powers. The 2A specifically PROHIBITS national level regulation of firearms but you want to use the Preamble to override that SPECIFIC prohibition.

Sorry sir, it just doesn't work that way.

You can't have a forgone conclusion and then search for justification all the while ignoring the specific and straight-forward, plain language prohibition against your goal.
 
Kochman said:
I find it amazing that people are throwing out the Preamble to the COTUS.
Picking and choosing is hardly a solid way to debate... you can't just pick and choose the parts of the COTUS you like, folks.
If you think the Preamble is irrelevant to the Constituion, then you're really off the mark.
Review the following:
http://en.wikipedia.org/wiki/Preambl...s_Constitution

Most of the article is regarding its judicial relevance.
__________________
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I don't agree with you, but you were doing a decent job in debating until the preamble deal. Did you read the link you posted ?

wiki said:
The Preamble serves solely as an introduction, and does not assign powers to the federal government,[1] nor does it provide specific limitations on government action. Due to the Preamble's limited nature, no court has ever used it as a decisive factor in case adjudication,[2] except as regards frivolous litigation.
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Were I you I would stick with stretching the heck out of the Commerce Clause


***edit*** sorry for the dup, Brian bet me to it****
 
Kochman said:
I find it amazing that people are throwing out the Preamble to the COTUS.
Picking and choosing is hardly a solid way to debate... you can't just pick and choose the parts of the COTUS you like, folks.
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No one threw out the preamble. They disputed your assertion that it is good authority for your proposal. You have been invited to reproduce authority that applies the preamble as you have.

Zuk said:
Kochman said:
OK, prove the undue burden.
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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?
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The pages can pile up fairly quickly, but above you have received a response to your request to demonstrate the undue quality of the burden imposed.
 
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The Preamble is the basis of many aspects of our society... like public school, for example.
Again, those throwing out the preamble, you've lost me.
There were specific court cases listed. Someone said, show me one court case, so I did.

My point, the preamble isn't irrelevant and it has been used in judicial review.
Anything beyond that statement I can't necessarily stand behind.

Now...

@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.
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How does that change the point of what I said? You and Spats aren't "most". I don't think responsible gun owners refuse to have background checks.

I think, and if this insults you that's unfortunate because it isn't the point, but I stand by this statement because I genuinely believe it to be morally correct...
If you sell guns to unknown people, without a check, in this day and age, you are an irresponsible gun owner.
I don't care what you used to do for work, what you do now, if you go to church every day, etc... if you're selling guns to unknown people based on your whim, it is irresponsible. You aren't the issue. The unknown nature of the potential purchaser is the issue.

You find that offensive, that's your prerogative.
I find it offensive that some folks believe they are so special they shouldn't have to worry about society and the general safety of the people around them.

45,000 felons. The other rejections stemmed from other reasons they shouldn't have guns. Why do I have to repeat what the article already says?
Since that is being asked, I will post the article's numbers so they aren't overlooked.
Those other reasons are listed as:
Felony, Domestic Violence, Drug Addict, Fugitive, Mentally Ill, and "Other" (defined as "Other" includes aliens, persons dishonorably discharged from the U.S. Armed Forces, persons who have renounced their citizenship, and persons who are prohibited by a state from possessing a firearm.)
That means... they may not have been felons, but they were adjudicated away for a number of reasons. Granted, I would prefer we reduce what is considered a "felon", etc, but until that happens...

And if you're going to advise someone to tone it down, maybe do it without your own uncalled for vitriole.
 
Kochman, see Brian Pfleuger's post re: your Preamble link.

Meanwhile, you say picking and choosing is no way to debate, yet you dislike my cars points because, as you put it, cars have other uses and are nothing like firearms, which are designed to launch a projectile at lethal speeds.

Of course, firearms can be used (and are used) for hunting, target shooting, and sporting competitions, as well as for lethal purposes. And cars (and motorcycles), while they can carry people or goods, virtually ALWAYS have lethal potential, every single time they are used. Even at low speeds, they run over kids in driveways, and kill them.

So you can say "apples and oranges" all you like, but IMO, lethal is lethal. The only difference, again IMO, is that firearms are Constitutionally protected, whereas automobiles are not. If anything, firearms should be LESS regulated than automobiles, and until 1968, that was so.

I think, when you say "don't pick and choose," you mean that in a one-sided way.
 
And people have to get licenses to own cars, and register their ownership.

I'm not going anywhere near that...
I'm just saying, be responsible and take a minute to ensure you aren't selling to the next mass murdering jerk.

How unreasonable of me, I know.
 
Kochman, you said most people who oppose checks are probably prohibited. Now you are revising your claim. Revisionism does not change what you said before.

Meanwhile, you are only looking at risk from one side: Use of firearms in crime by prohibited persons. Is that a risk? Yes.

But you ignore another risk: the risk that government will continue to grow, in increments, and that individual rights will continue to recede, in increments. Is that a risk? Yes.

Which is the greater risk?

Arguably, the latter.

If you don't think so, do a google search for what happened to the Kulak class in the USSR in the 30s and 40s; then cross-reference to the Ukraine famine which followed (when the government kills off its educated farmers, agriculture suffers). See how many people were killed, net, and then compare that to all homicides committed in the United States, ever.

Then tell me about risk, and responsibility.

The government concerns me much more than random thugs do.

Before you tell me "that was the USSR, this is the US!" do a look-up on the Banana Wars; the manner in which Panama became a nation; government activities against unions in New England in 1919-1920; the Yellow Peril; the Red Scare; Wounded Knee.

Yes, it can happen here. It becomes more likely to happen here when citizens willingly bend their knee.
 
Kochman said:
I'm just saying, be responsible and take a minute to ensure you aren't selling to the next mass murdering jerk.

How unreasonable of me, I know.
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In fact, you are suggesting quite a lot more than that. You are suggesting that access to a constitutionally guaranteed right should be exclusively through a federally controlled legal choke point.
 
That is a result of due process, not the commerce clause.
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Becoming prohibited is due process. Regulating the commerce to prevent people prohibited from engaging in commerce they're prohibited from- by due process- is the commerce clause.

However, it is a state issue.
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The States are not allowed to regulate interstate commerce.

Once it's IN state and the commerce is IN state, it is not, by the very definition of the word, INTERstate commerce.
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That is not what has been held.

A transaction in one state between residents of two separate states has been held interstate commerce, as has any transaction that might AFFECT interstate commerce- i.e. Heart of Atlanta Motel Inc. v. United States, 379 U.S. 241
 
MLeake,
I didn't revise my statement at all. I said you aren't necessarily "most" people.
You're comparing the USSR under Stalin to the USA in 2013?
I can't even begin to want to talk on such lines.
Submitting to a background check is hardly bending to your knees.

@Z
You're exaggerating the situation.
You're checking an already established status with a 4473. I think that is warranted for guns...
You'd not rent your apartment to someone, I would hope, without doing some sort of check either. It's 2013, there are a ton of bad people out there and a system that lets them walk amongst us... a lot.
They can look and act like anyone.

Ok, I've enjoyed this. I apologize if I've stepped over the line here at times. I'm going to bow out of it... with my parting words.

The 4473 doesn't deprive you of your rights, it just checks to see your status and if you've already been deprived of your rights.
Selling guns to strangers should require a check of such sort.
The current system isn't ideal, but it's what we have. It can be vastly improved on. Just in this thread several viable alternatives have come up, but, we're stuck with what we have.
 
JimDandy said:
Becoming prohibited is due process. Regulating the commerce to prevent people prohibited from engaging in commerce they're prohibited from- by due process- is the commerce clause.
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Jim, that is incorrect. Legislation and executive administrative action are not due process, i.e. an adjudication in which one is permitted to present the merits of his eventual position.

An individual adjudicated incompetent, or a convicted felon, both were afforded an opportunity to have the facts pertaining to their individual situations examined by some kind of judicial authority.

That due process under the Fifth Amendment is not a matter of Congress enacting legislation by which everyone with brown hair is a legal incompetent, and everyone with glasses is a felon.

Under your analysis legislative "due process" would be sufficient to abridge the right to speak or vote, but we know that is not how our system works.
 
I'm just saying, be responsible and take a minute to ensure you aren't selling to the next mass murdering jerk.
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OK, we're really laying the hyperbole on like cream cheese on jello. You want me to make sure I'm not selling a gun to a criminal? How do I do that in a way that's not horribly intrusive? What level of scrutiny would satisfy that? Who decides just how much information is enough?

Even then, it won't stop the next mass murdering jerk. Cho, Loughner, and Holmes all passed the background check without issue.

I find it offensive that some folks believe they are so special they shouldn't have to worry about society and the general safety of the people around them.
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Again, hyperbole. The assertion is that I have no regard for the safety of those around me because I don't want to submit to an arbitrary, intrusive, expensive, and ultimately futile boondoggle. That's straight out of the gun-control handbook: if I don't support X, I might as well be throwing children into traffic.
 
Kochman said:
And people have to get licenses to own cars, and register their ownership.
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Actually, no, they don't. Anyone can own a car. One must have a license to drive one on a public road, and the car must be registered in order to do so. But it's fine for a 13-year-old farm kid to drive an unregistered vehicle on her family's property -- and many do exactly that.

As to the Preamble, here's a paragraph from the Wikipedia article you cited:
On the other hand, courts will not interpret the Preamble to give the government powers that are not articulated elsewhere in the Constitution. United States v. Kinnebrew Motor Co.[21] is an example of this. In that case, the defendants were a car manufacturer and dealership indicted for a criminal violation of the National Industrial Recovery Act. The Congress passed the statute in order to cope with the Great Depression, and one of its provisions purported to give to the President authority to fix "the prices at which new cars may be sold".[22] The dealership, located in Oklahoma City, had sold an automobile to a customer (also from Oklahoma City) for less than the price for new cars fixed pursuant to the Act. Substantively, the case was about whether the transaction in question constituted "interstate commerce" that Congress could regulate pursuant to the Commerce Clause.[23] Although the government argued that the scope of the Commerce Clause included this transaction, it also argued that the Preamble's statement that the Constitution was created to "promote the general Welfare" should be understood to permit Congress to regulate transactions such as the one in this case, particularly in the face of an obvious national emergency like the Great Depression. The court, however, dismissed this argument as erroneous[24] and insisted that the only relevant issue was whether the transaction that prompted the indictment actually constituted "interstate commerce" under the Supreme Court's precedents that interpreted the scope of the Commerce Clause.[25]​
So it would seem that there is already a precedent to the effect that the Preamble does not give Congress the right to regulate commercial transactions.
 
Jim Dandy said:
That is not what has been held.

A transaction in one state between residents of two separate states has been held interstate commerce, as has any transaction that might AFFECT interstate commerce- i.e. Heart of Atlanta Motel Inc. v. United States, 379 U.S. 241
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Which is why the Commerce Clause is the most abused power in the COTUS.

ANYTHING is under national regulation. I buy flour from out of state. The Feds can regulate my pizza.

The farmer up the road sells milk that ends up in another state, therefore if he sells milk to me, which is decidedly NOT "interstate", he is NOT selling that very same milk out of state which, VIOLA!, suddenly effects interstate commerce so it IS interstate commerce!

Ridiculous! Asinine! Stupid!
 
Kochman said:
@Z
You're exaggerating the situation.
You're checking an already established status with a 4473. I think that is warranted for guns...
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I have not put words in your mouth or exaggerated the situation. I have responded to your text.

Why do not we conduct background checks prior to permitting people to vote?
 
Jim, that is incorrect. Legislation and executive administrative action are not due process, i.e. an adjudication in which one is permitted to present the merits of his eventual position.
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We may be having an internet-based miscommunication-

They are prohibited through due process. There's a law that says felons, etc.

They have their day in "court" where they may contest mental competency, or criminal proceedings.

That's the due process that makes them prohibited.

The commerce clause allows the Federal Govt to prevent those so prohibited from engaging in the commerce.
 
Tom Servo said:
Well, I'm pretty sure that would be found unconstitutional.
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As am I.

Brian Pfleuger said:
Which is why the Commerce Clause is the most abused power in the COTUS.
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It may make me seem somewhat simple, but this is why I have a great affection for the dissent of Clarence Thomas in the Raich. Beginning an analysis of the interstate commerce clause by defining "interstate" and "commerce" is a succinct, simple, direct and persuasive argument.

The alternative, we have now, a milieu in which laymen can get turned around easily and a lot of test language from case law is draped all over the text of the Constitution, does not encourage fidelity to the terms of the document.

That is not to suggest malevolence or deception. I believe that people who pursue their desired ends, such as federally enforced controls on the price of wheat, generally do so with a good faith belief that their scheme will somehow make things better. The problem we witness, and that is so well illustrated by commerce clause jurisprudence, is that once we decide intra-state non-commerce is the subject of interstate commerce, once we define a way the meaning of the words in the document, we cripple its meaning and its protections.
 
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