Has there ever been a consititonal challenge to NICS?

J

jeepstrapped

New member
Sorry if this has been asked and answered already.

Has NICS ever been challenged on "Due Process" Fifth Amendment grounds, I am thinking of the "nor be deprived of life, liberty, or property, without due process of law" section, as being denied unjustly can be seen as a derivation of liberty without due process.

Or, and this is a stretch, on Sixth Amendment grounds with the "Confrontation Clause"? The "Confrontation Clause" would be a stretch, but the act of being denied implies that the individual denied has committed a criminal act as grounds for denial. And, if denied unjustly I think an argument could be made that the individual was de-facto accused, tried, and convicted without ever appearing in court.

Mostly I am just curious about this.

If this has been covered I would appreciate anyone directing me to the appropriate thread.
 
First, before NICS could be challenged in any real sense, the federal laws that have made certain persons, prohibited from receiving and possessing firearms, would have to be overturned. That is not at all likely.

See generally 18 USC § 922(b), (d), and (g): http://www.law.cornell.edu/uscode/text/18/922

Then there are the various State laws that do the same. Striking the federal laws would not do away with any corresponding State laws. Those too would have to be challenged and overturned. Again, not likely.

The Heller decision advises us that these restrictions would most likely be constitutional. Therefore...

The NICS check is a narrowly tailored regulation that serves a compelling governmental interest. It does not infringe upon the right to buy a firearm. It merely checks to see that you are not a prohibited person, before allowing the transfer to proceed.

It is my opinion that the NICS law will stand up to strict scrutiny.
 
I know of no way we could really successfully challenge the NICS system.

Flame away, but it's one of those "common sense" things we just have to live with. It would have to be replaced with something even more onerous if it were to be repealed.
 
Don't forget.............NICS replaced the waiting period required by previous law.

Would you rather have to wait five days or take your gun home today?;)
 
Hell I will be the pariah here and say I personally wish it was open in some way shape or form for individuals to use. I have no issue with an instant (in most cases) background check.
 
Hell I will be the pariah here and say I personally wish it was open in some way shape or form for individuals to use.
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Nope, sorry. Dealers need the system to operate, and they don't need it getting congested with everyone calling in background checks on themselves.
 
Jeep
I don't really think due process will prevent too much of anything. I think due process is generally defined as 'notice, and an opportunity to be heard'.
dc
 
Tom Servo said:
Nope, sorry. Dealers need the system to operate, and they don't need it getting congested with everyone calling in background checks on themselves.
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That requirement is only due to the action of law. Remove that law, and dealers will not require it. Circular argument.

What surprises me is that it hasn't been expanded to include private transfers. That is what some of the anti-gunners, even those of the rational left, call a "common sense" gun law.
 
With respect to Due Process I was thinking, but not clearly explaining, that it seems that the burden of proving innocence falls on the individual denied. That is, people that get denied have to follow an appeals process to obtain, or regain, their Second Amendment rights. It seems to be an inequity in the system.

Then again I may be wrong.

I would prefer that when people are denied by NICS, that the burden should be on NICS to inform the individual in writing why they were denied.

I haven't been denied, so haven't gone through an NICS appeals process, but it seems to be somewhat an onerous task for someone to undergo whose denial was without merit.

Maybe I'm just whistling in the wind.
 
How about the "requirement" of providing the Feds with precisely the information they need to convict you by filling out a "form". (before they convict you) The Stayes really need to get the Fed back under the control the Constitution was supposed to provide them.
 
Im not sure that the law is above being stuck down. For myself I haven't so much as a speeding ticket in years and years and the last time I bought a gun it took 9 days of waiting prior to being allowed to purchase.

To me that seems to be an infringement. No it wasn't earth shattering but it certainly isn't right either.

Will it be defeated, no probably not, is it right, no but I have bigger fish to fry even if I'm less than appreciative of the process.
 
There is only one waiting period associated with the NICS check, and that only if the NICS "proceed" reply is not immediate (no "deny" after 3 business days - technically, you can proceed, although many FFL's will not, out of caution for their own license). See 18 USC § 922(t)(1)(B)(ii).

So any waiting period, is a State law.
 
It would simplify things quite a bit if we could keep dangerous criminals in prison until they are rehabilitated and have paid their debt to society.
 
IDK how easy it would be to show that the NICS system infringes on the right to get a gun. As I understand it, a denial from NICS does not bar you from buying a gun. It just bars the FFL from selling to you.

If NICS denies you, but you are not infact a prohibited person. Say they confused you with someone else. You could just go outside and buy a gun in a FTF sale. Totally legal. So a NICS denial doesn't automatically make you prohibited by accusing you of being a criminal.

It would simplify things quite a bit if we could keep dangerous criminals in prison until they are rehabilitated and have paid their debt to society.
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And how do you suppose we know when they are truly rehabilitated? Read their minds?
The reason we have limits on prison sentences is so the warden can't just keep you there indefinitely because he doesn't like you.
You know what they say about letting 100 guilty men go free to avoid 1 innocent man being imprisoned.
 
So, not sure exactly how NICS works if it is a database that includes the names of prohibited individuals or a program that links to other databases that contains these names.

Either way it would seem if anything was unconstitutional it would be the process that adds your name to the database not the actual database itself.
 
Quote:
It would simplify things quite a bit if we could keep dangerous criminals in prison until they are rehabilitated and have paid their debt to society.
And how do you suppose we know when they are truly rehabilitated? Read their minds?
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The reason we have limits on prison sentences is so the warden can't just keep you there indefinitely because he doesn't like you.
You know what they say about letting 100 guilty men go free to avoid 1 innocent man being imprisoned.
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We can't be 100% sure anyone is rehabilitated. And we can't be 100% sure that people who are qualifying for firearm purchases aren't dangerous either. You aren't reading your mind when you buy a firearm, do we?

We need to look at what will effectively rehabilitate criminals. If they're getting out with unacceptable recidivism rates, then we need to keep them in there longer. When and if they get out they should have rights restored. If I can't trust the guy with a gun I don't want him roaming the streets with my wife and children.

Would a few slip through the cracks? Of course. They already are, or we wouldn't have a homicide rate at all.
 
What is the constitutional question before the court? That a background check infringes on the right of felons to keep and bear arms? Not sure of what basis anyone would have to challenge the NICS process. If you are not a felon or mental defective, you can appeal a denial, that's your due process at work, so your rights remain.
 
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