SAF Brings Suit against I-594

Correct me if I'm wrong, but isn't "having to pass a test" before voting against the rules?

if tis not constitutional to have to pass a test (get approval) for one Constitutional right, why not for all of them?
 
Tom
I suppose in the legal realm you're correct. In the case/issue of background checks, it is discriminating against ones own past and no one can change their past. Some may believe that certain people in society shouldn't own guns. I do not believe that. I think that if someone is to dangerous to exercise their constitutional right of self defense, then they are too dangerous to be walking around in society, period.

If someone breaks a law and serves his/her time in jail, then they have paid their debt. I see no reason to continue to punish them, after release, by withholding their rights for the rest of their lives. If that isn't cruel and unusual, then I guess I don't understand that meaning of that amendment either.

Having to prove your innocents in a background check means they suspect that you have done something wrong and they want you to pay a fee to assist them in this enterprise against yourself. In our legal system, as I understand it, a person is suppose to be presumed innocent until proven guilty and someone cannot be forced to provide evidence against themselves. Not to mention the right to privacy. Essentially, they are asking for you to wave your 4th & 5th amendment rights so they can deny your 2nd.

The entire background check thing is a abomination and unconstitutional in my eyes because it involves a pre-existing inalienable right that Shall not be Infringed. This isn't about a privilege.
 
In the case/issue of background checks, it is discriminating against ones own past and no one can change their past. Some may believe that certain people in society shouldn't own guns. I do not believe that. I think that if someone is to dangerous to exercise their constitutional right of self defense, then they are too dangerous to be walking around in society, period.

If someone breaks a law and serves his/her time in jail, then they have paid their debt. I see no reason to continue to punish them, after release, by withholding their rights for the rest of their lives. If that isn't cruel and unusual, then I guess I don't understand that meaning of that amendment either.

Having to prove your innocents in a background check means they suspect that you have done something wrong and they want you to pay a fee to assist them in this enterprise against yourself. In our legal system, as I understand it, a person is suppose to be presumed innocent until proven guilty and someone cannot be forced to provide evidence against themselves. Not to mention the right to privacy. Essentially, they are asking for you to wave your 4th & 5th amendment rights so they can deny your 2nd.

The entire background check thing is a abomination and unconstitutional in my eyes because it involves a pre-existing inalienable right that Shall not be Infringed. This isn't about a privilege.
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Wow. Just...wow. I'll say I concur and leave it at that.
 
If someone breaks a law and serves his/her time in jail, then they have paid their debt.
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I agree with this. However, since 1968, the loss of firearms rights has been permanent. There is a mechanism in law to allow you to petition the Fed to have your rights restored. As far as I know, it is almost never used, because CONGRESS will not FUND it.

There are people who should not have guns. Absolutely. And by their ACTIONS, shall ye know them.

Prior restraint (background checks, permits, etc.,) should not be done. What should be done is those people who prove them selves dangerous to others be removed from society.

However, that is not the society we live in today. What we should, or even can do about that is a matter of much debate.
 
bandaid1 said:
...The entire background check thing is a abomination and unconstitutional in my eyes because it involves a pre-existing inalienable right that Shall not be Infringed....
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With regard to the underlying question of constitutionality, let's start with "first principles."

The Founding Fathers assigned to the federal courts the authority to exercise the judicial power of the United States to decide, among other things, cases arising under the Constitution (Article III, Sections 1 and 2):
Section 1.

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish....​

Section 2.

The judicial power shall extend to all cases, in law and equity, arising under this Constitution,...​
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The exercise of judicial power and the deciding of cases arising under the Constitution necessarily involves interpreting and applying the Constitution to the circumstances of the matter in controversy in order to decide the dispute. Many of the Founding Fathers were lawyers and well understood what the exercise of judicial power meant and entailed.

Thus if there is disagreement about whether a statute applies to decide a controversy or the application of the statute is barred by the Constitution, the matter is one within the province of the federal courts to decide. As the Supreme Court ruled back in 1803 (Marbury v. Madison, 5 U.S. 137, 2 L. Ed. 60, 1 Cranch 137 (1803), 1 Cranch at 177 -- 178):
...It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply....
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And so --

  • In its ruling in Marbury the Supreme Court was merely exercising its explicit authority given it in the Constitution to exercise judicial power to decide cases arising under the Constitution. In doing so and reaching its decision in Marbury it was applying established Common Law principles -- just as courts were, and are, expected to do.

  • And as Marshall pointed out, to decide the matter in Marbury the Court had to either sustain an act of Congress or conclude that the act of Congress was contrary to the Constitution, and thus sustain the Constitution. Either the act of Congress was valid, yielding one result, or it was invalid as conflicting with the Constitution, yielding a different result.

  • In other words, the Court could not, in Marbury, decide the case without choosing either a law enacted by Congress or the Constitution.

  • And without judicial review under the Constitution of statutes or other actions of public officials, what would be the remedy for such a law or action that one believed was repugnant under the Constitution? Do we have a civil war over every disagreement about the constitutionality of a law? Does each person get to decide for himself whether a law is constitutional and therefore whether to abide by it?

The courts give deference to legislative acts and presume statutes valid and enforceable, until unconstitutionality is determined. As the Supreme Court said in Brown v. State of Maryland, 25 U.S. 419 (1827), at 437:
...It has been truly said, that the presumption is in favour of every legislative act, and that the whole burden of proof lies on him who denies its constitutionality....
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And much more recently in U.S. v Morrison, 529 U.S. 598 (2000):
...Due respect for the decisions of a coordinate branch of Government demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds. See United States v. Lopez, 514 U.S., at 568, 577_578 (Kennedy, J., concurring); United States v. Harris, 106 U.S., at 635. With this presumption of constitutionality in mind, we turn to the question whether §13981 falls within Congress' power under Article I, §8, of the Constitution....
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So in the real world a statute is valid and enforceable unless and until it is found invalid by a court having appropriate jurisdiction. You might think the law is unconstitutional, and therefore invalid, but your belief in the unconstitutionality or invalidity of a law keeps no one out of jail; nor does it have any effect on the lives and property of real people in the real world.

Whether or not, as Second Amendment jurisprudence matures post Heller/McDonald the Supreme Court will ultimately find Universal Background Checks unconstitutional remains to be seen. But if it does, its ruling will be based on precedent and established legal principles.

So if one wishes to effectively and meaningfully argue that Universal Background Checks should be found unconstitutional, his arguments will need to be founded on the same types of bases, i. e., precedent and established legal principles. Arguments based on what might wish for or hope or want or like won't get anyone anywhere.
 
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bandaid1 said:
...In our legal system, as I understand it, a person is suppose to be presumed innocent until proven guilty and someone cannot be forced to provide evidence against themselves. Not to mention the right to privacy. Essentially, they are asking for you to wave your 4th & 5th amendment rights so they can deny your 2nd. ....
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Not really, for a bunch of reasons, including:

  1. The presumption of innocence has nothing to do with the matter. The presumption of innocence comes from the Common Law and is simply a technical, legal rule affecting the burden of proof in a criminal trial. At a criminal trial the prosecution has the burden of proving all the elements of the offense beyond a reasonable doubt; and should the prosecution fail to do so, the defendant is, because of the presumption of innocence, entitled to an acquittal.

    • But there are many examples of a need to demonstrate one's qualifications for something, e. g., a license or a benefit, in order to get it. You are not entitled to a presumption of qualification -- even if that qualification is a lack of a criminal record.

    • In many cases, the need to show one's qualifications for something courts have found to relate to a fundamental civil or property right, but court decisions have also considered the nature of the various qualifications and found any constitution requirement to be satisfied if the qualification is reasonably related to one's suitability for the thing being sought.

  2. The Fourth Amendment protects one from unreasonable searches and seizures of one's effects or person. Aside from the issue of how being required to answer questions and have records related to one's background reviewed is a "search or seizure of one's effects or person", there is still the question of reasonableness. There is considerable case law relating to when a search or seizure is or is not reasonable.

  3. The Fifth Amendment protects one, among other things, against being compelled in a criminal proceeding to testify against himself. But no one is required to have a gun, so, at the very least, if he chooses to by a gun he can't then complain about being required to answer some questions. If he doesn't want to answer, he can simply forgo buying a gun; and he can forgo buying a gun without exposing himself to any legal liability.
 
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Quote:

Not really, for a bunch of reasons, including:
The presumption of innocence has nothing to do with the matter. The presumption of innocence comes from the Common Law and is simply a technical, legal rule affecting the burden of proof in a criminal trial. At a criminal trial the prosecution has the burden of proving all the elements of the offense beyond a reasonable doubt; and should the prosecution fail to do so, the defendant is, because of the presumption of innocence, entitled to an acquittal.

But there are many examples of a need to demonstrate one's qualifications for something, e. g., a license or a benefit, in order to get it. You are not entitled to a presumption of qualification -- even if that qualification is a lack of a criminal record.

In many cases, the need to show one's qualifications for something courts have found to relate to a fundamental civil or property right, but court decisions have also considered the nature of the various qualifications and found any constitution requirement to be satisfied if the qualification is reasonably related to one's suitability for the thing being sought.

The Fourth Amendment protects one from unreasonable searches and seizures of one's effects or person. Aside from the issue of how being required to answer questions and have records related to one's background reviewed is a "search or seizure of one's effects or person", there is still the question of reasonableness. There is considerable case law relating to when a search or seizure is or is not reasonable.

The Fifth Amendment protects one, among other things, against being compelled in a criminal proceeding to testify against himself. But no one is required to have a gun, so, at the very least, if he chooses to by a gun he can't then complain about being required to answer some questions. If he doesn't want to answer, he can simply forgo buying a gun; and he can forgo buying a gun without exposing himself to any legal liability.
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Fully disagree and err on the side of freedom.

I can think of no other fundamental right that one needs to demonstrate himself so that he may exercise the right. For speech, there are time and place restrictions, but these are generally quite easy to navigate with no background checks. For religious practice, there are nearly no limits on this category. Clearly the 1st doesn't require such an intrusive investigation into a persons' history - and one could argue the 1st is the MOST dangerous of the rights (against the state and against other people). The 1st isn't waived by attempting to exercise it.

In exercising the 4th, an officer must have a warrant sworn out based on probably cause of a criminal act or intent or evidence of a crime. There are exceptions but it isn't waived (generally, except in a secured area like an airport) simply by attempting to exercise it.

Likewise, the 5th (not being required to testify against oneself in criminal trials), is not absolute and a court may order it waived (for instance in an immunity situation). However, the state requiring waiver is a rare situation, on an institutionalized happening during every trial.

I do see the 4473 as an infringement on the 1st (requiring speech), 4th (waiving/consenting to search), and 5th (mandating self incriminating speech) to exercise the 2nd. Let's not forget there are very real penalties for giving false information on the 4473, which is also quite problematic.

In short, let's assume that every lawful gun purchase starting today required a 4473. New gun owners would have to forfeit 3 rights (1st/4th/5th) to exercise the 2nd. Hence it is fundamentally not right to create a situation where one has to submit to XYZ in order to exercise a guaranteed right under the 2A. And that is a travesty.

Seems this all points back to "Shall not be infringed..." So lots of legal mumbo jumbo to circumnavigate such an easy and plain language clause.
 
leadcounsel said:
...Fully disagree and err on the side of freedom.
...
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Disagree all you want, but I have accurately outlined current law.

leadcounsel said:
...I do see the 4473 as an infringement on the 1st (requiring speech), 4th (waiving/consenting to search), and 5th (mandating self incriminating speech) to exercise the 2nd. Let's not forget there are very real penalties for giving false information on the 4473, which is also quite problematic...
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Let me know when you get a judge to agree, or cite some legal authority to support your contentions.

Whether or not requiring a background check to transfer a gun is another question which is yet to be decided.
 
If a felon can be exempt from gun registration because registration would self-incriminate them as felons in possession, why wouldn't they be exempt from a background check for the same reason, felons attempting to purchase?

So, us law-abiding citizens will comply, the felons won't.
 
kilimanjaro said:
If a felon can be exempt from gun registration because registration would self-incriminate them as felons in possession, why wouldn't they be exempt from a background check for the same reason, felons attempting to purchase?...
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They are not similar self-incrimination issues.

  1. If one is legally required to register a gun, and if registering a gun would require that you incriminate yourself by admitting you're prohibited person in possession of a gun, you cannot be prosecuted for not registering the gun.

    • Since registering the gun you already have would, under the circumstances assumed, be a compulsory act, prosecuting you for not registering the gun would violate your Fifth Amendment right against being:
      ...compelled in any criminal case to be a witness against...
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      yourself.

    • You could still be prosecuted for being a prohibited person in possession of a gun, but the prosecution would have to be based on evidence other than your registration of the gun or evidence derived from your registration of the gun.

  2. On the other hand, no one is required to buy a gun. You can not be prosecuted for not having a gun.

    • If you choose to buy a gun and buy one at a dealer (or if under state law you have to buy a gun at a dealer), you have to fill out a form; and you commit a federal crime by lying on that form (violating 18 USC 922(a)(6)).

    • But you can avoid having to fill out that form by simply not buying a gun. And if you don't buy a gun, you will not be prosecuted for not buying a gun.

    • Thus buying a gun is not compulsory, and so you may be prosecuted for failing to truthfully admit on the form a disqualifying condition.
 
Let me restate my comments in a different way.

  • If you are a felon with a gun, and a law requires that you register your gun, you --

    1. Commit a crime by not registering your gun; and

    2. Admit to committing a crime by registering your gun; so

    3. Your Fifth Amendment Rights apply.

  • If you are a felon --

    1. If you try to buy a gun at a dealer and admit you are a felon on the 4473, you won't be able to buy the gun; or

    2. If you lie on the 4473, you have committed a federal crime; but

    3. You commit no crime by not buying a gun and therefore are free to avoid without penalty not buying a gun and therefore not having to complete a 4473.
 
And how does all that work with (most) Washington residents being in two militia- state and federal- and the militia historically providing their own arms?
 
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