Is a background check or license to purchase unconstitutional?
- Thread starter Groundhog
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Wildalaska
Moderator
NICS is constitutional (I defy anyone to show me, with citations, how it is not), licenses are iffy and probably not
WildonelinersduetofrenzyAlaska
WildonelinersduetofrenzyAlaska
WSM MAGNUM
New member
In a way it is unconstitutional. But the way society is, we have to have it.
And I don`t believe that the Supreme Justices have the final word on what is or is not constitutional, on what is already written in the Constituion. What is in the Constitution stays constitutional. No on but the people have the power to change it. Supreme judges should uphold what is written and they have the final word over all other judges.
And I don`t believe that the Supreme Justices have the final word on what is or is not constitutional, on what is already written in the Constituion. What is in the Constitution stays constitutional. No on but the people have the power to change it. Supreme judges should uphold what is written and they have the final word over all other judges.
Let it Bleed
New member
The Court in 1995 in United States v. Lopez struck down a statute prohibiting possession of a gun at or near a school, rejecting an argument that possession of firearms in school zones can be punished under the Commerce Clause because it impairs the functioning of the national economy. Acceptance of this rationale, the Court said, would eliminate "a[ny] distinction between what is truly national and what is truly local," would convert Congress' commerce power into "a general police power of the sort retained by the States," and would undermine the "first principle" that the Federal Government is one of enumerated and limited powers.
Application of the same principle led five years later to the Court's decision in United States v. Morrison invalidating a provision of the Violence Against Women Act (VAWA) that created a federal cause of action for victims of gender-motivated violence. Congress may not regulate "non-economic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce," the Court concluded. "[W]e can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims."
Reversing the question: Where does Congress derive the authority to require background checks and how does this relate to interstate commerce? If you find that everything in some way involves interstate commerce, then isn't the limitation on federal power meaningless?
Application of the same principle led five years later to the Court's decision in United States v. Morrison invalidating a provision of the Violence Against Women Act (VAWA) that created a federal cause of action for victims of gender-motivated violence. Congress may not regulate "non-economic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce," the Court concluded. "[W]e can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims."
Reversing the question: Where does Congress derive the authority to require background checks and how does this relate to interstate commerce? If you find that everything in some way involves interstate commerce, then isn't the limitation on federal power meaningless?
No argument here, the DC court that said owning a gun was a second amendment right was an individual right. As long as NICS doesnt keep a law abiding citizen from buying a gun who meets the qualifications it isnt unconstitutional. The DC court said that ownership could be regulated.
Yes. It is none of the government's business if you have a firearm. They have no constitutional or moral authority to regulate whether you can or cannot "keep and bear" arms. This means owning a gun and carrying a gun as far as I and the Founding Fathers are concerned.
Owning or carrying a gun is a RIGHT not a privilege to be given or taken away by the government.
Hugh Damright
New member
I reckon that Maryland can call Virginia and ask if a person is restricted ... but he might have a background which doesn't restrict him in Virginia but does restrict him in Maryland, or vice versa, so it might appear that a national standard is what is needed ... but that is not our frame of government.
It would be one thing to have a national database where a State can check and see if a person has anything that, in that State's judgment, disqualifies him ... but it seems to be quite a different affair when the US assumes the role of telling the States which of their Citizens, in the federal government's judgement, are disqualified.
JuanCarlos
New member
The 2nd doesn't guarantee your right to secretly own a firearm. It doesn't guarantee you the ability to purchase one without a paper trail. As long as you aren't actually prevented from purchasing one, your rights are not infringed.
So is voter registration unconstitutional?
Except that any background check system that isn't consistent from state to state (which will generally require federal intervention) is useless...especially in your neck of the woods where I can in the space of a few hours cross through three or four states.
EDIT: Nevermind, you already responded to this. And I do agree that I'm hesitant to have anybody outside my state's borders dictating the gun laws in my state. What makes sense in Washington, DC more often than not makes no sense at all in Montana.
While this would move the system well beyond the simple, it's not that bad of an idea. Have a central, nationalized database that has a list of "flags," and let each state decide which flags it cares to check. You could even require out-of-state purchasers to pass both the local standards and the standards from their home state before purchase. I see no reason this couldn't be implemented, and would greatly prefer it to any national standard.
FirstFreedom
Moderator
License, yes, unconstitutional. You can't license (put a prior restraint on), a fundamental right.
Background check, no, I don't think it's per se unconstitutional. But, to the extent that it excludes from purchase categories of persons not prohibited under the common law (misdemeanor defendants, and those subject to civil restraining orders, a la Lautenberg), then yes, to that extent, it is unconstitutional.
Background check, no, I don't think it's per se unconstitutional. But, to the extent that it excludes from purchase categories of persons not prohibited under the common law (misdemeanor defendants, and those subject to civil restraining orders, a la Lautenberg), then yes, to that extent, it is unconstitutional.
I think it all boils down to this: As long as gun owners and gun purchasers believe they are getting something in return for the bother of going through NICS they'll go along with it and ignore any possibility that it might be unconstitutional. So far, you've from several gunstore owners and they all seem to think it's a great idea. But it keeps them from getting sued every time a guy buys a gun from them and then goes out and kills his wife too, so they have a somewhat 'vested' interest in NICS.
A guy who yelled at his first wife (thirty years ago) when he found out she was sleeping with the milkman might take another view of it, especially if he now has a problem with varmints around his home.
Whether or not it is constitutional is a question that will have to be resolved in some future court case, not on this forum. It came into being as a reasonable restriction on the right to keep and bear arms. It has since been amended to cover several other "reasonable" situations. Even now there is a push (aided by the NRA) to enact another "reasonable" amendment to it.
All this reminds me of those other great lies, like; "The dog ate my homework" and "The check is in the mail" or "I'm only going to put the tip in." Now we can add in "This is just a reasonable restriction."
My personal opinion (everyone has one, you know) is that NICS is just another of the 'thousand cuts' we are going to die from.
A guy who yelled at his first wife (thirty years ago) when he found out she was sleeping with the milkman might take another view of it, especially if he now has a problem with varmints around his home.
Whether or not it is constitutional is a question that will have to be resolved in some future court case, not on this forum. It came into being as a reasonable restriction on the right to keep and bear arms. It has since been amended to cover several other "reasonable" situations. Even now there is a push (aided by the NRA) to enact another "reasonable" amendment to it.
All this reminds me of those other great lies, like; "The dog ate my homework" and "The check is in the mail" or "I'm only going to put the tip in." Now we can add in "This is just a reasonable restriction."
My personal opinion (everyone has one, you know
) is that NICS is just another of the 'thousand cuts' we are going to die from.Come on
Reasonable barriers to gun ownership are not only Constitutional, but advisable. Its the debate over these barriers and what is reasonable that gets everyone worked up. In fact, we should probably support many of "barriers" (ie background checks) because they legitimize gun ownership in the eye of the non "packing" public. Whether we like it or not, this is partially a war of PR. Totally unregulated gun ownership is very bad PR and, IMO, very bad practice. If we lose this PR war, we very likely could lose our rights to own firearms and defend our lives.
NO right is an unlimited one. Even certain types of speech are not protected under the law, and it is unreasonable to expect our 2A rights to be unlimited as well. This in no way to be critical of people's purist 2A views, because you certainly have a decent argument.
(Now I will duck and run for cover )
Reasonable barriers to gun ownership are not only Constitutional, but advisable. Its the debate over these barriers and what is reasonable that gets everyone worked up. In fact, we should probably support many of "barriers" (ie background checks) because they legitimize gun ownership in the eye of the non "packing" public. Whether we like it or not, this is partially a war of PR. Totally unregulated gun ownership is very bad PR and, IMO, very bad practice. If we lose this PR war, we very likely could lose our rights to own firearms and defend our lives.
NO right is an unlimited one. Even certain types of speech are not protected under the law, and it is unreasonable to expect our 2A rights to be unlimited as well. This in no way to be critical of people's purist 2A views, because you certainly have a decent argument.
(Now I will duck and run for cover
)Let it Bleed
New member
While obviously aware that a discussion on an internet forum does not resolve any constitutional debate, it is certainly an appropriate place for the open exchange of thoughts, ideas, and opinions.
Therefore, I again pose the question regarding an issue I raised in previous posts on this thread. That is, where does Congress derive the lawful authority to require background checks if not from their power to regulate interstate commerce as provided by the Commerce Clause, and in what manner does this activity involve interstate commerce so as to not create an all inclusive definition of interstate commerce that would thereby render any limit on federal power meaningless?
Regardless of differing viewpoints, it is important not to myopically focus only on how legislation impacts individual liberties to determine its constitutionality. For legislation to be constitutional, Congress must also derive its lawful authority to act from powers granted to it by the Constitution.
While opinions may differ as to the scope of federal power granted by the Constitution, enforcement of these limitations on federal power is no less important in preserving our individual freedoms than the protections afforded by our fundamental rights.
Therefore, I again pose the question regarding an issue I raised in previous posts on this thread. That is, where does Congress derive the lawful authority to require background checks if not from their power to regulate interstate commerce as provided by the Commerce Clause, and in what manner does this activity involve interstate commerce so as to not create an all inclusive definition of interstate commerce that would thereby render any limit on federal power meaningless?
Regardless of differing viewpoints, it is important not to myopically focus only on how legislation impacts individual liberties to determine its constitutionality. For legislation to be constitutional, Congress must also derive its lawful authority to act from powers granted to it by the Constitution.
While opinions may differ as to the scope of federal power granted by the Constitution, enforcement of these limitations on federal power is no less important in preserving our individual freedoms than the protections afforded by our fundamental rights.
Glenn E. Meyer
New member
Wouldn't the 'well regulated milita' statement imply the ability to check to see if the members of the milita were mentally stable - unlike Cho?
Just for discusssion.
Also, twas stated:
. Yes. It is none of the government's business if you have a firearm. They have no constitutional or moral authority to regulate whether you can or cannot "keep and bear" arms. This means owning a gun and carrying a gun as far as I and the Founding Fathers are concerned
Could one also conclude from the BOR, that government has no moral authority to regulate the press or media? But the government levels fines on broadcasters and in the past has shut down various forms of speech - as for example in the past when foks argued against a war or presented sexual acts as media representations.
Also, by extension - where did the moral authority to control sex acts between consenting adults come from? Would the poster of the proposition argue that the airways and press should be totally free and there be no control of adults' sexual acts. That hasn't been the position of the selfproclaimed conservatives in the USA.
Just for discusssion.
Also, twas stated:
. Yes. It is none of the government's business if you have a firearm. They have no constitutional or moral authority to regulate whether you can or cannot "keep and bear" arms. This means owning a gun and carrying a gun as far as I and the Founding Fathers are concerned
Could one also conclude from the BOR, that government has no moral authority to regulate the press or media? But the government levels fines on broadcasters and in the past has shut down various forms of speech - as for example in the past when foks argued against a war or presented sexual acts as media representations.
Also, by extension - where did the moral authority to control sex acts between consenting adults come from? Would the poster of the proposition argue that the airways and press should be totally free and there be no control of adults' sexual acts. That hasn't been the position of the selfproclaimed conservatives in the USA.
One could conclude this. Correct. This is also unconstitutional.
This is different, and you're probably not going to agree with this but I'm going to answer anyway. 1) The Federal government does indeed not have the legal authority to regulate these things. (that much you might very well agree with) 2) the States and local communities however do have the moral and legal authority to regulate these things as far as I am concerned. Why? Well we are free to own and carry guns (supposedly), but we do not have the right to use them irresponsibly. We can't shoot other people unjustly or behave in an irresponsible manner. If we do, we should go to jail and or be executed for murder (not have our RTKBA taken away once we have served our time). By the same token, we are free to say what we want and print what we want. But if we print something irresponsible or immoral, in spite of what superlibertarians and social leftists say, it does affect other people. Pornography and such is harmful to people and especially children and does nothing but tear people down, "free sex" is an irresponsible act because it spreads disease and breeds illegitimate children who are born into broken homes. There is nothing wrong with sex per se, just like there is nothing wrong with owning or carrying guns per se, but how it is used (or I guess I should say abused) can be wrong.