Do You Support The "Gun Show Loophole?"

[nodoginnafight]

2 reasons:
- Background checks are a form of prior restraint, which violates the constitution.
- The Constitution does not grant the power to regulate commerce across my fencline.

Thanks M14, I sincerely appreciate your response. I may disagree with it, but you have a right to it and you are able to articulate it honestly. Rep coming.

And I agree that background checks are a form of prior restraint. In D.C v Heller the court ruled an all out ban on gun ownership by law-abiding citizens is unconstitutional. But the court specifically noted in the decision a non-exhaustive list of a number of presumptively lawful regulatory measures that included imposing conditions on sales.

The court was unspecific about what conditions it meant, and so to argue that its statenent to that effect supports the idea that background checls are constitutionally permissible is unsupportable. In specific, the phrase you refer to points more to the commercial restrictions on the sale of firearms, not the restrictions placed on thise who buy them.

Prior restraint is a particularly egregious affront to the rights and liberties protected by the constitution, and so, in terms of the 2nd amendment will surely be considered in a manner similar to that in the 1st -- at the very least, there is no sound argument that the rights protected under the 2nd deserve any less consideration that those protected by the 1st.

Very good points and I agree that the standard for upholding a prior restraint is a very high one. But they have been upheld in regards to the First Amendment in some circumstances.

Alito said the court had made clear in its 2008 decision that it was not casting doubt on such long-standing prohibitions on gun possession by felons and the mentally ill, or keeping firearms out of "sensitive places" such as schools and government buildings.

"We repeat those assurances here," Alito wrote. "Despite municipal respondents' doomsday proclamations, [the decision] does not imperil every law regulating firearms."

Since that time the District has survived a legal challenge to a new system of regulations implemented after Heller, including mandatory background checks, firearms training and other requirements for gun ownership.

So far, no mandatory background check law has been sucessfully overturned. But I guess anything could happen in the future.

 

[The Rabbi]

So far, no mandatory background check law has been sucessfully overturned. But I guess anything could happen in the future.

There have not been any Federal requirements for background check other than what is in the 1968 GCA and subsequent legislation. The Feds do this under authority of the Commerce Clause on interstate commerce. I dont have a legal problem with that (I have a policy problem with it, but thats another matter).
What they want is to regulate commece intrastate. And that they do not have the authority to do. Nor has anyone been able to show that it would decrease crime in any way. So you are talking about abridging rights with no correspnding benefit to the state. That would prima facie be unconstitutional.

 

[M14 Shooter]

Thanks M14, I sincerely appreciate your response. I may disagree with it, but you have a right to it and you are able to articulate it honestly. Rep coming.

And I agree that background checks are a form of prior restraint. In D.C v Heller the court ruled an all out ban on gun ownership by law-abiding citizens is unconstitutional. But the court specifically noted in the decision a non-exhaustive list of a number of presumptively lawful regulatory measures that included imposing conditions on sales.

The court was unspecific about what conditions it meant, and so to argue that its statenent to that effect supports the idea that background checls are constitutionally permissible is unsupportable. In specific, the phrase you refer to points more to the commercial restrictions on the sale of firearms, not the restrictions placed on thise who buy them.

Prior restraint is a particularly egregious affront to the rights and liberties protected by the constitution, and so, in terms of the 2nd amendment will surely be considered in a manner similar to that in the 1st -- at the very least, there is no sound argument that the rights protected under the 2nd deserve any less consideration that those protected by the 1st.

Very good points and I agree that the standard for upholding a prior restraint is a very high one. But they have been upheld in regards to the First Amendment in some circumstances.

Yes - the specifics for which are inapplicable to the simple posession/ownership of a firerarm.

Alito said the court had made clear in its 2008 decision that it was not casting doubt on such long-standing prohibitions on gun possession by felons and the mentally ill, or keeping firearms out of "sensitive places" such as schools and government buildings.

Yes... which isn't relevant here.

Since that time the District has survived a legal challenge to a new system of regulations implemented after Heller, including mandatory background checks, firearms training and other requirements for gun ownership.

All of which means nothing as none of these have been argued in front of the SCotuUS.

You agree that background checks are a fiorm of prior restraint.
On what established basis, then, would background checkls be upheld by the SCotUS?

 

[nodoginnafight]

You agree that background checks are a fiorm of prior restraint.
On what established basis, then, would background checkls be upheld by the SCotUS?

The very same basis that you wrote off as irrelevant to this argument.

Alito said the court had made clear in its 2008 decision that it was not casting doubt on such long-standing prohibitions on gun possession by felons and the mentally ill,

The only way to enforce these long standing, acceptable prohibitions is with background checks.

 

[nodoginnafight]

So far, no mandatory background check law has been sucessfully overturned. But I guess anything could happen in the future.

There have not been any Federal requirements for background check other than what is in the 1968 GCA and subsequent legislation. The Feds do this under authority of the Commerce Clause on interstate commerce. I dont have a legal problem with that (I have a policy problem with it, but thats another matter).
What they want is to regulate commece intrastate. And that they do not have the authority to do. Nor has anyone been able to show that it would decrease crime in any way. So you are talking about abridging rights with no correspnding benefit to the state. That would prima facie be unconstitutional.

SCOTUS has given strong signals that they would uphold background checks.

But when 92% of all U.S. voters favor the measure, it behooves congress to enact it and even move to amend the Constitution if that is initially struck down.

Another option is to tie federal law enforcement subsidies to states to their enactment of mandatory background checks.

 

[OriginalShroom]

So far, no mandatory background check law has been sucessfully overturned. But I guess anything could happen in the future.

There have not been any Federal requirements for background check other than what is in the 1968 GCA and subsequent legislation. The Feds do this under authority of the Commerce Clause on interstate commerce. I dont have a legal problem with that (I have a policy problem with it, but thats another matter).
What they want is to regulate commece intrastate. And that they do not have the authority to do. Nor has anyone been able to show that it would decrease crime in any way. So you are talking about abridging rights with no correspnding benefit to the state. That would prima facie be unconstitutional.

SCOTUS has given strong signals that they would uphold background checks.

But when 92% of all U.S. voters favor the measure, it behooves congress to enact it and even move to amend the Constitution if that is initially struck down.

So if 92% of the U.S. voters favor a return to slavery, we should amend the Constituition to allow it?

If 92% of the U.S. Voters favor a return to male/female only marriages, we should amend the Constitution to allow that?


Since when do we put our rights up to a vote?

 

[bigrebnc1775]

There have not been any Federal requirements for background check other than what is in the 1968 GCA and subsequent legislation. The Feds do this under authority of the Commerce Clause on interstate commerce. I dont have a legal problem with that (I have a policy problem with it, but thats another matter).
What they want is to regulate commece intrastate. And that they do not have the authority to do. Nor has anyone been able to show that it would decrease crime in any way. So you are talking about abridging rights with no correspnding benefit to the state. That would prima facie be unconstitutional.

SCOTUS has given strong signals that they would uphold background checks.

But when 92% of all U.S. voters favor the measure, it behooves congress to enact it and even move to amend the Constitution if that is initially struck down.

So if 92% of the U.S. voters favor a return to slavery, we should amend the Constituition to allow it?

If 92% of the U.S. Voters favor a return to male/female only marriages, we should amend the Constitution to allow that?


Since when do we put our rights up to a vote?

Your argument is flawed, because it goes against his belief and could not support the acts of the majority that went against his belief system.

 

[Uncensored2008]

So if 92% of the U.S. voters favor a return to slavery, we should amend the Constituition to allow it?

If 92% of the U.S. Voters favor a return to male/female only marriages, we should amend the Constitution to allow that?


Since when do we put our rights up to a vote?

Since we became and Obamunist country.

 

[M14 Shooter]

You agree that background checks are a fiorm of prior restraint.
On what established basis, then, would background checkls be upheld by the SCotUS?

The very same basis that you wrote off as irrelevant to this argument.

Ummmm..... no. You misunderstood the question.

You agree that background checks are a form of prior restraint, and that standard for upholding a prior restraint is a very high one -but, even so, prior restraint has been upoheld by the court.

Specifically, on what basis? That is, when did they do so, why did they do it?
Then, explain how this example can be soundly applied to the issue at hand - background checks.

The only way to enforce these long standing, acceptable prohibitions is with background checks

Incorrect - it is perfectly possible to enforce these prohibitions by arresting and prosecuting those found illegally posessing firearms, who have therefore broken the laws in question.

 

[PaulS1950]

The biggest problem with universal back-ground checks is that:
1. it won't keep the guns out of the hands of criminals
2. unless you use gun registration you can't track sales that are "illegal" and registration is illegal.
3. It will effectively prohibit personal sales of guns because:
........1. the police can't do the checks - it is illegal for them to do them for private citizens - federal law.
........2. Dealers won't do it without being able to make a profit. The bill in my state will only charge $20 for the check and the dealers here charge $60 to do it now.
........3. When the background check is in process the gun is transfered to the dealers inventory. That means if the sale falls through you have to pay for another background check to get your own gun back. The dealer can't release it to you without the background check and appropriate paperwork.

So you pay the dealer $80 (his fee plus the state fee) for him to take your gun and sell it to your buyer and his background check doesn't clear or he backs out of the sale because of the additional cost. Now you get to pay the dealer another $80 to get your gun back. So you are out $160 and have the same gun that you had all but sold two weeks before.

What happens if the gun dealers can't charge more than the $20 that the state sets up? Then they can refuse to do the check and you can't sell your gun.

I have a right to buy or sell anything that I can legally own from or to anyone else who can legally own it. The one time that I sold a gun it was to someone I knew and they had a concealed pistol permit which shows that they have passed the background check. (a stricter check than is needed to buy the gun in the first place)

 

[M14 Shooter]

........2. Dealers won't do it without being able to make a profit. The bill in my state will only charge $20 for the check and the dealers here charge $60 to do it now.

Thus, creating an undue burden.
Game over.

 

[nodoginnafight]

The biggest problem with universal back-ground checks is that:
1. it won't keep the guns out of the hands of criminals

This is just your speculation. If EVERY gun sale required a background check, criminals would not be able to use straw buyers.
In fact according to the associated press Virginia's background check system has prevented 54,260 people, including more than 16,000 felons, from buying guns since it began in 1989.

2. unless you use gun registration you can't track sales that are "illegal" and registration is illegal.

Incorrect - a sales database would give law enforcement a trail to follow.

3. It will effectively prohibit personal sales of guns because:
... 2. Dealers won't do it without being able to make a profit. The bill in my state will only charge $20 for the check and the dealers here charge $60 to do it now.

The checks cost $2. I've seen ranges of free to $25. I've never seen $60. What state are you in?

 

[The Rabbi]

So far, no mandatory background check law has been sucessfully overturned. But I guess anything could happen in the future.

There have not been any Federal requirements for background check other than what is in the 1968 GCA and subsequent legislation. The Feds do this under authority of the Commerce Clause on interstate commerce. I dont have a legal problem with that (I have a policy problem with it, but thats another matter).
What they want is to regulate commece intrastate. And that they do not have the authority to do. Nor has anyone been able to show that it would decrease crime in any way. So you are talking about abridging rights with no correspnding benefit to the state. That would prima facie be unconstitutional.

SCOTUS has given strong signals that they would uphold background checks.

But when 92% of all U.S. voters favor the measure, it behooves congress to enact it and even move to amend the Constitution if that is initially struck down.

Another option is to tie federal law enforcement subsidies to states to their enactment of mandatory background checks.

They have given no such signals. They have not commented at all on it.
As for 92% of voters, let me ask the question and I will get you the result you want.
If states enact it, that is legal adn fine. I dont think it has any effect on crime but they are welcome to their folly.

 

[nodoginnafight]

You agree that background checks are a fiorm of prior restraint.
On what established basis, then, would background checkls be upheld by the SCotUS?

The very same basis that you wrote off as irrelevant to this argument.

Ummmm..... no. You misunderstood the question.

You agree that background checks are a form of prior restraint, and that standard for upholding a prior restraint is a very high one -but, even so, prior restraint has been upoheld by the court.

Specifically, on what basis? That is, when did they do so, why did they do it?
Then, explain how this example can be soundly applied to the issue at hand - background checks.

The only way to enforce these long standing, acceptable prohibitions is with background checks

Incorrect - it is perfectly possible to enforce these prohibitions by arresting and prosecuting those found illegally posessing firearms, who have therefore broken the laws in question.

Yes, one approach would be to step over the corpses to ask the perp about his background.

Not my first choice.

 

[M14 Shooter]

This is just your speculation. If EVERY gun sale required a background check, criminals would not be able to use straw buyers.

Background checks do not, and can not, in any way, stop straw purchases.

 

[nodoginnafight]

There have not been any Federal requirements for background check other than what is in the 1968 GCA and subsequent legislation. The Feds do this under authority of the Commerce Clause on interstate commerce. I dont have a legal problem with that (I have a policy problem with it, but thats another matter).
What they want is to regulate commece intrastate. And that they do not have the authority to do. Nor has anyone been able to show that it would decrease crime in any way. So you are talking about abridging rights with no correspnding benefit to the state. That would prima facie be unconstitutional.

SCOTUS has given strong signals that they would uphold background checks.

But when 92% of all U.S. voters favor the measure, it behooves congress to enact it and even move to amend the Constitution if that is initially struck down.

Another option is to tie federal law enforcement subsidies to states to their enactment of mandatory background checks.

They have given no such signals. They have not commented at all on it.
As for 92% of voters, let me ask the question and I will get you the result you want.
If states enact it, that is legal adn fine. I dont think it has any effect on crime but they are welcome to their folly.

Your are right - it wasn't really a signal. It was a flat out statement in the Heller ruling.

 

[Spoonman]

if it ever does come to the point where we do have background checks I guess that means we are safe to lift all restrictions on what can be owned

 

[nodoginnafight]

This is just your speculation. If EVERY gun sale required a background check, criminals would not be able to use straw buyers.

Background checks do not, and can not, in any way, stop straw purchases.

Of course they can. The money is so good that they probably can't elimenate 100% - but they can certainly put a big dent in them.

 

[M14 Shooter]

Yes, one approach would be to step over the corpses to ask the perp about his background.
Not my first choice.

So, you agree that your statement -- The only way to enforce these long standing, acceptable prohibitions is with background checks -- is false.

This removes any argument of an imperative - a compelling state interest, if you will - to have background checks, as the laws you mention - just like every other criminal law - CAN be enforced w/o them.

So - back to this:

You agree that background checks are a form of prior restraint, and that standard for upholding a prior restraint is a very high one -but, even so, prior restraint has been upoheld by the court.

Specifically, on what basis? That is, when did they do so, why did they do it?
Then, explain how this example can be soundly applied to the issue at hand - background checks.

 

[Spoonman]

This is just your speculation. If EVERY gun sale required a background check, criminals would not be able to use straw buyers.

Background checks do not, and can not, in any way, stop straw purchases.

Of course they can. The money is so good that they probably can't elimenate 100% - but they can certainly put a big dent in them.

the black market will trump background checks. especially with the people we really need to be controlling.