Universal background checks

[Glenn E. Meyer]

Nice thought but if you didn't have any scraps, would you eat them if you got them?

In any case, I'll be blunt. That sort of rhetoric accomplishes nothing. As Frank as pointed out, BOR provisions do come with legislative restraints. So do you try to loosen them up or not? Making progress is not some sort of surrender as one might spout. The antigunners are happy to make slow progress in banning guns. The nibble at the state levels is becoming quite successful despite, the claims of some that it shouldn't happen. It is. Should we not nibble in the other direction?

TX did not have a shall issue law. Now it does. I have found my carry scraps of the Masters table to be very useful pragmatically. I probably didn't have to have my old body go hand to hand with bad people. I guess I should have for ideological purity.

The 2nd Amend. could be taken away if the appropriate Constitutional processes were followed. That has been suggested.

Folks should look up the Stanford marshmallow experiment and contemplate what is means in RKBA fights.

 

[peterg7]

I’m not against small victories as long as the focus and goal remains pure, to me the goal should be a reinstatement of our rights, a repeal of GCA of 68 and NICS.

Label me a conspiracy nut but I find it strange that “Our” side (lobbyists and politicians) always leave enough work to be done that they can fundraise and there’s always a new crisis to profit from.


Sent from my iPhone using Tapatalk

 

[44 AMP]

Making progress is not some sort of surrender as one might spout.

Ok...and retreat is not defeat, its just advancing in a different direction....

Good, bad, progress, surrender, it all depends on your personal point of view.

And a large part of that depends on what does, and does not have a direct effect on one's personal life. The rest of it could be thought of as ideological purity, or might not one also refer to it as adhering to principles?

Are shall issue laws progress?? In the sense that anything that moves you closer to the stated and desired goal is progress, then, yes, they are.

On the other hand, is something that gets you back a fraction of what was taken, really progress? Or is it just a degree of restoration?

If you, personally benefited from it, then, for you, its certainly progress, and on a practical level. On the other hand, if your regaining the right to carry doesn't affect my personal life the width of a single hair of a rodent's posterior, then to me, it's only progress on the ideological purity level, not the personal, practical one.

I'm not (quite) so pride filled that I can turn up my nose at the Master's scraps, one does have to eat, after all. But I refuse to be "properly grateful" for the Master's largesse, since I can remember a time when I had a seat at that table and ate the same food, from my very own plate.

How and why we got kicked away from the table and wound up on the floor, begging to be allowed to pay for a background check before each and every scrap the Master deigns to toss at us is something for a different discussion. But, as I see it, on the floor, we are.

Is there a way to get back to the table? As Glenn pointed out, probably not in our lifetimes. All a lot of us want is just to not be kicked out the door into the cold, with our few pitiful scraps cut off, leaving us to starve, if we don't freeze first...

It may be nobler to starve in the cold, and hold to the purity of principles with the extremism of a zealot, but one still starves....

We used to be so well fed that in between naps, we slept heavily. And as we slept, they built a cage around us, and bit by bit cut the legs off our chair at the table, until we fell into the cage. Now they are trying to slam the lid down and padlock it shut.

The very idea that permits and background checks are "good" things is just one of the most recently added bars to the cage. Generations of children, now voters were raised being told that the cage has always been there, and it is right, just, and proper for it to be there.

Its really tough to overcome that.

Universal Background Checks promise a safety no one can deliver, for the modest cost of a bit more of our liberty. And they come with the threat of loss of all liberty, should we fail to dot every "i" and cross every "t", every single time.

Sorry for the rant, by nature I'm prone to "over explaining" everything (or so my wife tells me, often...)

UBCs are "guilty until proven innocent" writ large. Why are we taught that this is wrong, unless a gun is involved, then its ok?? When has punishing the innocent ever stopped the guilty?

because that's all the existing and proposed laws actually do, as far as I can see...

 

[zukiphile]

And a large part of that depends on what does, and does not have a direct effect on one's personal life. The rest of it could be thought of as ideological purity, or might not one also refer to it as adhering to principles?

Are shall issue laws progress?? In the sense that anything that moves you closer to the stated and desired goal is progress, then, yes, they are.

Does that depend on where you've been? If you lived in a state that permits carry without any license, a shall issue licensing system would be a terrible imposition. In Ohio though, there was no reliably legal concealed carry until the licensing system, and that system, warts and all, provided ample evidence that people carrying doesn't turn common social friction into bloody battles.

The tension between principle and practicality can present a false dichotomy. In Ohio, the licensing of a right was genuinely complimentary to general acceptance of the right.

Federally mandated UBCs differ; they would only curtail an existing and accepted right and compel federal documentation that could be incriminating at a future date. That's not just a step backward, but is also extraordinarily difficult to square with the principle that we have an individual right like the rights to speak, vote, travel or assemble.

 

[Frank Ettin]

...I find it strange that “Our” side (lobbyists and politicians) always leave enough work to be done that they can fundraise and there’s always a new crisis to profit from....

Really now? Do you really think that there's anyway to make opposition permanently fade into the woodwork?

The reality is that for every divisive issue no victory on one side has ever completely shut down the other side. Brown v. Board of Education was decided in 1954, over 60 years ago; and we still see school discrimination litigation. Discrimination in employment has been illegal for over 50 years (Title VII of the Civil Rights Act of 1964), and there is still enough employment discrimination litigation to keep hoards of bureaucrats and lawyers employed. Roe v. Wade was over 40 years ago, and the issues continue to legislated about and litigated.

These sorts of fights never actually end.

 

[Aguila Blanca]

That is a point argued by some gun rights organizations when they opposed shall issue laws. However, without such laws (which may not meet ideological purity tests), millions of people would not have the legally safe ability to carry a handgun and perhaps thousands of them would have become victims of crime.

One can work for ideological purity if you want. It won't happen in real time. In fact, the success of concealed carry laws and the low crime rates and positive outcomes of these laws help argue for more practical expansion of the RKBA, in spite of purity objections.

It may be untenable but which situation to you prefer? No shall issue laws and waiting for the Pure 2nd Amend. Messiah to arrive or having the legally safe option to carry?

Glenn, I understand that we are where we are, and that we have to play the hand we've been dealt. I point out that all permits and all regulations are (ideally) unconstitutional not to hold out for ideological purity (if I were an ideologue, I wouldn't have carry permits from five states), but as a counter-argument to proposals that we cede still more to the anti-gun forces in the name of ... I don't know what, appeasement, perhaps?

IMHO, we should not be looking for ways to compromise with the gun grabbers, we should be looking at and for ways to regain the ground we have lost. If "compromise" is what they say they want, then the first question we ask should always be, "Okay, what will you give back to us if we give you ___?"

As Frank as pointed out, BOR provisions do come with legislative restraints.

Frank and I have had this discussion in the past. Frank is an astute attorney ... but he is an attorney. He views all this through the lens of his education and experience as an attorney. Not being an attorney, I view it through the lens of the language. There really isn't a lot of Supreme Court jurisprudence history on the Second Amendment. Frank's comments in previous discussions come down to "All the rights in the Bill of Rights have historically been ruled to be subject to reasonable regulation." And I accept that that's probably true ... as far as it goes. But the historical precedents mostly apply to the other rights in the BOR, not to the Second Amendment.

However, regulation IS infringement. The Second Amendment specifically states that the RKBA shall not be infringed. That translates to "shall not be subject to regulation." I understand that if a majority of the black robes say otherwise, that's what we have to deal with. But, if/when they say that, IMHO they are practicing intellectual dishonesty, because the words say what the words say. If we're honest, there is no other way to read the Second Amendment.

 

[44 AMP]

The Second Amendment specifically states that the RKBA shall not be infringed. That translates to "shall not be subject to regulation."

Does it? really??

Anyone have access to a 1780s dictionary or other documents defining what "infringe" meant then, to see if it is any different from what we use for a definition today??

because the argument is made that "reasonable regulation" is not infringement.

Fringes are the edges, the outer boundaries. Flags, banners, rugs, or literary use (the fringes of civilization) it means the outermost limits. I believe the Founders meant that, as well. I think they felt that by prohibiting the government from treading on the edges of a right, it would keep the central core of the right inviolate.

They were pretty good builders, but had to leave the upkeep of what they built to the people. The result has been...uneven. Over the last couple hundred years the people have added some impressive and necessary additions, and some that weren't. One was even torn down when it proved to be a really bad design. But other parts of the structure have had their upkeep neglected, as for so long, there simply was no need.

There really isn't a lot of Supreme Court jurisprudence history on the Second Amendment.

No, there isn't. Why do you think that is???
Could it be that for close to 150 years people thought the idea of the 2nd Amendment meaning anything other than what it actually said was simply outside the bounds of common sense?? I think so.

Our first national gun law was 1934. And it wasn't a "you may not have at all" law, at least not at first, it was a tax law. you filed the papers and paid the tax and you were good to go. That has since been drastically changed....

Was that an infringement? I think so. Did anybody care? not really. Not in any numbers to matter. That law only directly affected a comparatively small number of people.

Unlike a Universal Background Check law, which is made to affect every single gun purchaser and seller in the nation, every time a gun is bought and sold.

Everywhere, every time.

Tell me how that squares with "shall not be infringed".

I don't see that as treading on the edges at all. I see it as jumping right into the middle with size 12 hobnail jackboots.

 

[Aguila Blanca]

I'm not having much luck finding a Revolution-era definition of "infringe," but I did stumble across this:

http://tenthamendmentcenter.com/2014/09/22/2nd-amendment-original-meaning-and-purpose/

And then there is clause “shall not be infringed.” There is no exception to this contained anywhere in the amendment.

Zacharia Johnson, a delegate to the Virginia Ratifying Convention, summed up the meaning of the Second Amendment when he declared that “The people are not to be disarmed of their weapons. They are left in full possession of them.”

 

[RETG]

Closest I can get to the 1700s
From: An American Dictionary of the English Language by Noah Webster

 

[Al Norris]

We can get a sense of the word by looking at how the word evolved (etymology); How the Supreme Court looks at words (Johnson's 1755 Dictionary) and how early Americans used the word (Webster's 1828 dictionary).

Etymology of the word:
infringe (v.)

mid-15c., enfrangen, "to violate," from Latin infringere "to damage, break off, break, bruise," from in- "in" (from PIE root *en "in") + frangere "to break" (from PIE root *bhreg- "to break"). Meaning "encroach" first recorded c. 1760. Related: Infringed; infringing.​

infringement (n.)

"a break or breach" (of a contract, right, etc.), from infringe + -ment. Earlier in a now-obsolete sense of "contradiction" (1590s).​

Johnson's Dictionary (1755):
To INFRI'NGE. v. a. [trfringo, Latin.]

1. To violate ; to break laws or contracts. ffailer.
2. To deſtroy ; to hinder. Wal'er.​

INFRI'NGEMENT. ſ. [from infringe. .

Breach ; violation. Clarenden.​

Websters 1828 Dictionary:
INFRINGE, verb transitive infrinj'. [Latin infringo; in and frango, to break. See Break.]

1. To break, as contracts; to violate, either positively by contravention, or negatively by non-fulfillment or neglect of performance. A prince or a private person infringes an agreement or covenant by neglecting to perform its conditions, as well as by doing what is stipulated not to be done.
2. To break; to violate; to transgress; to neglect to fulfill or obey; as, to infringe a law.
3. To destroy or hinder; as, to infringe efficacy. [Little used.]​

NFRINGEMENT, noun infrinj'ment.

Act of violating; breach; violation; non-fulfillment; as the infringement of a treaty, compact or other agreement; the infringement of a law or constitution.​

For you purists out there, you lost that battle a long time ago. It has long been seen, by society at large, that only men with nefarious intent, conceal their weaponry. Hence the laws against concealing your knives and guns. Heller even lists those seminal State cases with approval.

Even today, most Americans still view people with concealed weapons as being somewhat at the fringe of society, bordering upon the criminal, certainly such carriers are paranoid. American society today has changed to the point where most Americans don't even want to see someone carrying a firearm, unless they are a cop. This almost universal attitude has changed only a little and only because of licensed (shall issue) concealed carry.

Off Topic: After Heller and McDonald, and applying hindsight, it should have been obvious that the lowest hanging fruit was not "Shall Issue", but simply "Carry In Some Form". And then, only in those States where any carry was prohibited or so restricted that an average person would never be allowed to exercise that right.

The single case that did attack a states carry laws, won the day. That case won because the argument was that the citizens had a right to carry in some form. The argument was never about "Shall Issue" vs. "Open Carry." It was simply the right to carry. Full Stop.

Moore should have been an eyeopener in how to force "Shall Issue", as I don't believe for a second that the Illinois Legislature gave a thought to unrestricted open carry (other than as a repugnant thought).

On Topic: The right to carry cannot be said to be infringed if an average person can carry, even if regulated (somewhat) by a permit or licensing scheme.

By the same reasoning, a universal background check would be constitutionally permissible if there was no charge (no financial discrimination) and it was aimed only at ownership, not mere possession... This would go to the prefatory clause of the right and the governments authority to know who owned what, in the extreme case that a militia should be caused to be called up. If that was the stated intent of instituting a UBC, it would pass scrutiny.

The devil would indeed be in the details (actual law or subsequent regulations), but in its simplest form, perfectly constitutional.

 

[Aguila Blanca]

The right to carry cannot be said to be infringed if an average person can carry, even if regulated (somewhat) by a permit or licensing scheme.

With thanks for the research, I disagree with the above statement. If "infringe" means to violate, to hinder, to transgress, then certainly a requirement to take a class involving an expenditure of money and time, and then to obtain a permit (the procurement of which also requires an expenditure of money and time), IMHO that most certainly is a "hindrance." The notion of having to obtain a permission slip before exercising a right is a hindrance and a violation. If I can't just wake up and do it -- it's not a right.

With those definitions in mind, I respectfully submit that I remain of the opinion that regulation IS infringement.

 

[44 AMP]

Thank you for those definitions. My American Heritage Dictionary (1980) says pretty much the same thing.

SO, it appears that there is a historical basis for the argument that unless a right (contract, pact, etc) is completely prohibited (broken, violated, etc) then it is not infringed.

Thereby leading to the conclusion that, using the understood definitions of the day, what the Founders meant by "shall not be infringed" was not, "shall not be regulated at all" but rather "shall not be completely taken away".

Interesting....

This principle does, however, seem to have some serious drawbacks, when applied to other things, like oh, I don't know...First Amendment type things, perhaps??

If the government banned, took away and burned every book except for Readers Digest, it might not be "infringement" because you still have something left to read, but it certainly would be censorship, wouldn't it??

I note that while the 2nd says "shall not be infringed" the 1st says "Congress shall make no law"...

I used to assume that was just done so each had unique to itself phrasing, but now I'm wondering if there wasn't a further purpose in the choice of those specific words in those specific locations...

It seems that infringement depends on who sets where the bounds are, defining what does, and does not break the contract.

On that, the Constitution seems silent. So here we are, some say "this is an infringement!!" and others say "no, its just a regulation".

Considering how broadly stretched some people have taken the simple phrase "Congress shall make no law" is it any wonder there is dispute over "shall not be infringed"???

 

[Aguila Blanca]

By the same reasoning, a universal background check would be constitutionally permissible if there was no charge (no financial discrimination) and it was aimed only at ownership, not mere possession... This would go to the prefatory clause of the right and the governments authority to know who owned what, in the extreme case that a militia should be caused to be called up. If that was the stated intent of instituting a UBC, it would pass scrutiny.

The original, second Miliia Act of 1792 required every able-bodied male within the specified age group to register for the militia in his town or city of residence. It also specified what type of rifle they were to possess, and what size and how many lead balls and how much powder they were to have when reporting for drill or duty. Obviously, this was so the local militia commander would have a count of his manpower.

Section 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia by the captain or commanding officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this act. And it shall at all times hereafter be the duty of every such captain or commanding officer of a company to enrol every such citizen, as aforesaid, and also those who shall, from time to time, arrive at the age of eighteen years, or being of the age of eighteen years and under the age of forty-five years (except as before excepted) shall come to reside within his bounds; and shall without delay notify such citizen of the said enrolment, by a proper non-commissioned officer of the company, by whom such notice may be proved. That every citizen so enrolled and notified, shall, within six months thereafter,How to be armed and accoutred. provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear, so armed, accoutred and provided, when called out to exercise, or into service, except, that when called out on company days to exercise only, he may appear without a knapsack. 1803, ch. 15.That the commissioned officers shall severally be armed with a sword or hanger and espontoon, and that from and after five years from the passing of this act, all muskets for arming the militia as herein required, shall be of bores sufficient for balls of the eighteenth part of a pound. And every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements required as aforesaid, shall hold the same exempted from all suits, distresses, executions or sales, for debt or for the payment of taxes.

Aside from the requisite militia weapon, the government had no interest in what other firearms each militiaman might or might not own. They weren't the firearms specified for the militia (they wanted interchangeability, at least in size of ammunition), so they didn't matter.

Fast forward to today. If we're going to revert to justifying firearms ownership or background checks on the basis of belonging to the militia, then we're back to uniformity with the armed forces. That would mean rather than banning AR-15s, the government should be requiring all able-bodied males to have an AR-15, 'X' number of 30-round magazines, and at least one standard battle pack of M855 62-grain ammo. Since that's the militia rifle, and we're justifying a background check on letting the .gov know who is available for militia duty, once someone has reported that he has one conforming AR-15, the .gov should have no further interest in any other firearms he may or may not own.

[Edit to add] I thought the original Militia Act specified .50 caliber balls. I was partially wrong on that -- the act initially stipulates that each man have at least 24 balls and powder therefor. After five years from passage of the act, the weight (size) of the musket balls was to be standardized.

 

[Aguila Blanca]

FWIW, a lead ball weighing 1/18th of a pound is approximately 0.69 inches in diameter.

"Heavy and slow ..."

 

[Frank Ettin]

..."Congress shall make no law"...

Actually, in the First Amendment it's (emphasis added):

Congress shall make no law ....; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.....

...The original, second Miliia Act of 1792....

It's not 1792 any more.

So every regulation of a right protected by the Second Amendment is an "infringement." And every regulation of a right protected by the First Amendment is an "abridgement." Nonetheless, in the real world we have both -- infringements of rights protected by the Second Amendment and abridgements of rights protected by the First Amendment. Both horses left the barn a very long time ago.

 

[zukiphile]

So every regulation of a right protected by the Second Amendment is an "infringement." And every regulation of a right protected by the First Amendment is an "abridgement." Nonetheless, in the real world we have both -- infringements of rights protected by the Second Amendment and abridgements of rights protected by the First Amendment. Both horses left the barn a very long time ago.

To extend the idiom, collecting lost horses for return to the barn can be useful. People shouldn't conclude that the concept of keeping horses in barns is the problem. Morton Grove repealed its pistol ban not too long after Heller was announced, and concealed carry has progressed.

We can recognise that Congress will pass laws that threaten rights without becoming resigned the persistence of each and every threat. McCain-Feingold was appalling, and it took time to have the speech prohibition within overturned, but Citizens United did just that.

If "shall not" represents the aspiration toward an ideal, we can know we fall short of it while still championing the ideal. A UBC is categorically a state approval of one's act prior to the act. That is not a mere regulation of a right held by an individual against the state, and is inconsistent with the idea of a right and the practice of rights to vote, speak, assemble or travel.

 

[Frank Ettin]

To extend the idiom, collecting lost horses for return to the barn can be useful. People shouldn't conclude that the concept of keeping horses in barns is the problem. Morton Grove repealed its pistol ban not too long after Heller was announced, and concealed carry has progressed....

We need to distinguish the political from the judicial. The courts will generally define the outer limits of permissible governmental conduct. But where politically feasible, and if the culture and societal values are congenial, the government can choose not to reach that limit.

To induce a horse back to the barn we'll need to find ways to successfully shape the political and cultural landscape.

 

[Aguila Blanca]

To induce a horse back to the barn we'll need to find ways to successfully shape the political and cultural landscape.

You forgot the third leg of the stool: "judicial."

 

[Frank Ettin]

You forgot the third leg of the stool: "judicial."

No, I didn't forget it. As I just previously wrote:

...The courts will generally define the outer limits of permissible governmental conduct.....

So I seriously doubt that one can expect the courts to support your literal readings of "not be infringed" or "not abridging." The courts might keep the horse in the pasture, but they won't keep him in his stall.

 

[zukiphile]

We need to distinguish the political from the judicial. The courts will generally define the outer limits of permissible governmental conduct. But where politically feasible, and if the culture and societal values are congenial, the government can choose not to reach that limit.

Emphasis added. The political and judicial are certainly distinguishable, and related. The courts have an opportunity to define the limits of government power when the government transgresses those limits. For that mechanism to work as a check against government, a court has to be willing to identify the limit and apply it.

To induce a horse back to the barn we'll need to find ways to successfully shape the political and cultural landscape.

That's part of the answer, certainly, and particularly important where the court's recognition is so young and vulnerable. It's also true that part of the function of the court is to contradict government acts that reflect unwholesome political and cultural enthusiasms that push the state beyond constitutional limits. My guess would be that McCain-Feingold was fairly popular, probably more popular than the House and Senate votes suggest. In that instance, a necessary part of the answer was having five Sup Ct justices willing to enforce a constitutional limit, popular or not.