Is a background check or license to purchase unconstitutional?

[Groundhog]

A one liner in another thread got me wondering about this.

The whole NICS check is BS. It's unconstitutional.

So here's the amendment.

The Second Amendment states:

“ A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed. ”

Is it unconstitutional? The only way I can see it would be under the "shall not be infringed" part. I guess I am wondering if there is some way you could get away with saying acquiring said arms would not necessarily fall under it.

Let me start by saying I am not trying to pick the fly poo out of the pepper here. I'm just curious as to how people view that part of it. I probably butchered what I am really trying to get at here but what the heck. Lets see what happens.

 

[JuanCarlos]

It's not, really. None of our rights are truly protected from any and all infringement. There's always the idea that some rights must be restricted due to compelling public interest. However, in theory any limitation fundamental Constitutional right (which the right to keep and bear arms is) should meet the standard of "strict scrutiny." Or at least that's my understanding.

This is actually one of the huge problems I have with most gun control that gets proposed; almost none of it is proposed with the intention of finding the least restrictive means to address the problem at hand. Nearly all of it instead focuses on just how much they can get away with banning, with the desired outcome for many being an outright ban on pretty much everything.

 

[Redworm]

I don't see a background check as an infringement. In fact I'd support background checks in face-to-face transfers if there was a quick, cheap and reliable method of doing so.

 

[Abstract]

Nothing is unconstitutional until the U.S. Supreme Court says it's unconstitutional.

Screw background checks for private sales. That's absurd. +

 

[JuanCarlos]

Screw background checks for private sales. That's absurd.

I fail to see why. Provided a system is implemented that's cheap, fast, and reliable I don't see why we shouldn't require such a thing. I mean, you're transferring a firearm to somebody who you may or may not know.

This attitude does make sense if you oppose all background checks in general; but provided we require background checks in stores it's somewhat silly to leave such a glaring workaround for those that know they wouldn't pass one.

 

[BlueTrain]

Is the requirement to buy a marriage license constitutional? Why do you have to be 16 or 18 or 26 to buy a gun? Is that constitutional? Can an admendment to the constitution be unconstitutional? Why is there air?

 

[Musketeer]

I don't see a background check as an infringement. In fact I'd support background checks in face-to-face transfers if there was a quick, cheap and reliable method of doing so.

I agree. Now keep your head down...

 

[Samurai]

Is the requirement to buy a marriage license constitutional?

The US Supreme Court seemed to think so when they upheld marriage licenses. (Can't remember the case, but it was a while ago.) However, they specified that a provision had to be included for people to get married who couldn't afford a license.

Why do you have to be 16 or 18 or 26 to buy a gun?

You have to be 21 to buy a handgun, presumably, because people younger than this are not responsible enough to use them lawfully. You have to be 16 to drive, not to buy a gun. You have to be 18 to vote or buy a longgun, not to buy a handgun. And, you have to be 25 to get the good rates on your car insurance, not 26, and not to buy a gun.

Can an admendment to the constitution be unconstitutional?

No. In fact, amendments to the constitution can directly contradict one another, such as the prohibition amendment and the direct repeal of prohibition. When two amendments to the constitution contradict one another, the most recent one carries the force of law.

Why is there air?

This can be answered on a number of levels:
1. So we can breathe.
2. So the Sun's harmful UV rays don't scorch us alive.
3. Because God loves us.
4. Because in Space, noone can hear you scream.
5. Because if there wasn't a Nitrogen-based atmosphere to limit combustion, we'd all be on fire.
6. Because it's air-pressure, not explosives, that make bullets go forward.
7. I don't know. I'm trying to watch the game, here! Go ask your mother...

 

[SecDef]

You have to be 21 to buy a handgun, presumably, because people younger than this are not responsible enough to use them lawfully.

What's the rule for members of the military? Are they suddenly more qualified and granted the right or are they not allowed a sidearm until their birthday?

Why is there air?

Gravitational forces are great enough to keep an atmosphere.

 

[JayCee]

Nothing is unconstitutional until the U.S. Supreme Court says it's unconstitutional.

Exactly right. The Supremes are the final arbiter of what's constitutional and what ain't constitutional.

 

[Abstract]

fail to see why. Provided a system is implemented that's cheap, fast, and reliable I don't see why we shouldn't require such a thing. I mean, you're transferring a firearm to somebody who you may or may not know.

This attitude does make sense if you oppose all background checks in general; but provided we require background checks in stores it's somewhat silly to leave such a glaring workaround for those that know they wouldn't pass one.

Kind of hard to cogently respond to such pubsecent, ignorant drivel.

 

[JuanCarlos]

Kind of hard to cogently respond to such pubsecent, ignorant drivel.

If it's so hard to respond, you could always just...you know, not. If it's such obvious drivel, everybody will know and you won't have to call it such.

 

[junkpile]

Nothing is unconstitutional until the U.S. Supreme Court says it's unconstitutional.

Doesn't sync up with my understanding of truth. Brown v. Board meant that Plessy v. Ferguson was unconstitutional, whether or not the S.C. said it was before. What the Supreme Court decides and what is true do not always sync up. It could just be an unconstitutional law that is enforced. (Example: The president decideds, during peacetime, giving no reasons, to dissolve congress and permanently abolish the Supreme Court. That is unconstitutional, whether or not the S.C. has the opportunity to say it is).

I think if we're talking about original intent, it's possible that it is unconstitutional. I don't think the Founders would have meant to give that sort of power to the federal government. They'd leave it up to the states, nearly for certain. States in turn would likely leave it up to towns.

Is it a good idea? Doesn't bother me much. I think stopping felons from having guns is a compelling interest of the state. I think that NICS checks, in my experience, are narrowly tailored (they don't stop non-felons, for the most part (here come horror stories?)), and use the least restrictive means. A reasonable goal, with narrowly tailored method of getting to the objective using the least restrictive means sounds pretty good. I would be against a 5-day waiting period, however. That doesn't use the least restrictive.

 

[Let it Bleed]

Strict scrutiny, heightened scrutiny, and rational basis analysis . . . how titillating!

I suppose the argument would be that if the 2nd Amendment is a fundamental right, then the Court should apply strict scrutiny in its analysis of any legislation that seeks to regulate said right. Since only one statute has ever survived strict scrutiny, it may be presumed that the Brady law would find a similar fate.

As attractive as this argument may be, it is fatally flawed. First, the 14th Amendment’s equal protection clause is not applicable because the statute in question is a federal and not a state statute. Second, because the statute does not create a suspect classification, the Court would not use a strict scrutiny standard in evaluating the law.

Another argument would be that the Brady law is outside the scope of federal legislation. The Commerce Clause has been stretched so thin in order for Congress to derive the power to legislate in areas that should be the sole province of the States. The federal government was never endowed with “police powers” such as those possessed by the States. Police power is the authority of the government to regulate matters that impact the health, welfare, and safety of its citizens. However, the federal government has used its power to regulate interstate commerce to create laws that only tangentially involve interstate commerce.

Therefore, when some opine that background checks are unconstitutional, they are asserting that the federal government has overreached and is operating outside of the scope of its enumerated powers. It was hoped that the Court's decision in Lopez signaled an end to judicial complicity in the usurpation by Congress of the State's police power. I don't think anyone disputes the necessity of the Commerce Clause, but many are chagrined by the disingenuous appeal to regulation of interstate commerce to validate almost unlimited congressional authority.

 

[junkpile]

Strict scrutiny, heightened scrutiny, and rational basis analysis . . . how titillating!

Interesting. I agree that we aren't creating a suspect classification, and that this wouldn't come under strict scrutiny, but my question is whether or not a National Instant Background Check would pass. It seems to me that it would, in that it can be set up so as to cause nearly no obstacle for anyone but felons, who it would prevent. No?

As attractive as this argument may be, it is fatally flawed. First, the 14th Amendment’s equal protection clause is not applicable because the statute in question is a federal and not a state statute.

Maybe I've misunderstood this. Federal Laws are just as challengable as State when it comes to the constitution, no need to go through the 14th for state violation. If the Federal Government sets up a flag-burning statute, I could challenge it and it could be struck down. I think I've misunderstood?

Looking forward to your reply

 

[Richard Hanson]

In the end, it is the people who are sovereign and not the Supreme Court. If the government is not abiding by the constitution, even should the Supreme Court countenance that usurpation of power, it is the people who perpetually retain the authority to overthrow their government and replace it with whatever form of government they think might best secure their liberty. I would note that the current federal government is not the first government established by the people of these United States, it is the second and, if history is at all instructive, we are likely to have additional iterations as government all tend to become more oppressive and tyrannical over time.

Also, it is somewhat possible for an amendment to the Constitution to be unconstitutional. Article V. reads in part "... no State, without its Consent, shall be deprived of its equal Suffrage in the Senate." It only takes three fourths of the States to ratify an amendment but any amendment that would deprive a state of it's equal representation in the Senate would be unconstitutional if even one State did not consent. This part of the Constitution, if no other, is not amendable by the normal amendment process as unanimity would be required on the question.

Additional, as a historical note, any Amendment that would have changed the 1st or the 4th clauses in the Article 1, Section 9 before 1808 would also have been unconstitutional as this was specifically prohibited. This means that the 16th Amendment, which grants to congress the power to create an income tax, would have been unconditional before 1808 as Clause 4 prohibits any direct tax that is not in proportion to the enumeration of the people, the Census.

Best Regards,
Richard

 

[Hugh Damright]

I believe that background checks are one of those things that would be constitutional at the State level but unconstitutional at the national level. I don't think that Virginia needs the US to tell us which of our Citizens are dangerous and need to have their RKBA denied, I think we are the better judge of such things.

 

[junkpile]

I don't think that Virginia needs the US to tell us which of our Citizens are dangerous and need to have their RKBA denied, I think we are the better judge of such things.

Indeed, I think you're correct. But what about the people who aren't your citizens? Cho (for example) could have gone to Maryland or another state, which would have no idea what your state is doing with regards to him. A national system for such reportings makes state-to-non-state transfers possible from a block-the-bad-guys standpoint.

 

[KpdPipes]

SecDef wrote:
"Quote:
You have to be 21 to buy a handgun, presumably, because people younger than this are not responsible enough to use them lawfully.

What's the rule for members of the military? Are they suddenly more qualified and granted the right or are they not allowed a sidearm until their birthday?


Quote:
Why is there air?

Gravitational forces are great enough to keep an atmosphere.

Apples and Oranges, In the Military, you are not Purchasing your firearm, it is issued to you, it doesnt belong to you, it belongs to the USG. In LE, in some places it is the same way. You can bevome a cop at 18 in NJ, you can carry on and off duty, your ISSUED weapon, but you cannot PURCHASE your own until 21.

 

[Let it Bleed]

junkpile

The Fourteenth Amendment reads "No STATE shall deny to any person within its jurisdiction the equal protection of the laws."

The Court has found similar protection exists under the 5th Amendment, but even then draws a distinction. The following is from the seminal case addressing this issue:

We have this day held that the Equal Protection Clause of the Fourteenth Amendment prohibits the states from maintaining racially segregated public schools. The legal problem in the District of Columbia is somewhat different, however. The Fifth Amendment, which is applicable in the District of Columbia, does not contain an equal protection clause as does the Fourteenth Amendment which applies only to the states. But the concepts of equal protection and due process, both stemming from our American ideal of fairness, are not mutually exclusive. The "equal protection of the laws" is a more explicit safeguard of prohibited unfairness than "due process of law," and, therefore, we do not imply that the two are always interchangeable phrases. But, as this Court has recognized, discrimination may be so unjustifiable as to be violative of due process. Bolling v. Sharpe, 347 U.S. 497 (1954).