Constitutionality of NICS?


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Ole Humpback
February 3, 2013, 02:23 PM
No, I'm not suggesting it is unconstitutional. However; I did receive an email from one of my congresscritters and he did bring the point up:

US Rep Visclosky from IN

That is why, in the 103rd Congress, I supported the assault weapons ban, which prohibited the manufacture, transfer, or possession of semi-automatic assault weapons, including those with a large capacity ammunition feeding device. I deeply regret that President Bush allowed this ban to expire in 2004. Also in the 103rd Congress, I supported passage of the Brady Act, currently known as the national instant criminal background check system, which requires background checks for all firearm transfers and purchases. I would note that the Constitutionality of these laws have never been challenged before the Supreme Court.

I find it hard to believe that the 1994 AWB was never challenged for its constitutionality in court, but I went ahead and looked for any constitutional challenges/grounds to/about NICS. Nothing came up.

Before I go replying to my congresscritter, I want to get my facts straight. What are the legal merits and detractors of NICS or an AWB? I'm fairly clear on the constitutional issues of an AWB, however NICS is another issue. I'd like some more info on it outside of a google search before I respond.

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joecil
February 3, 2013, 03:17 PM
Look at what Scalia said in his majority vote on District of Columbia vs Heller. He basically said you have the right to own a hand gun in your home for protection but that was as far as it went. He said in a recent interview that laws about types of weapons could be constitutional and this is one of the most conservative justices to serve on the bench in probably a century.

Frank Ettin
February 3, 2013, 03:54 PM
Look at what Scalia said in his majority vote on District of Columbia vs Heller. He basically said you have the right to own a hand gun in your home for protection but that was as far as it went....Well that was the question raised by the facts in Heller, but the decision really goes further than that.

In the course of deciding Heller (District of Columbia v. Heller, 554 U. S. 570 (United States Supreme Court, 2008)) and McDonald (McDonald v. City of Chicago (Supreme Court, 2010, No. 08-1521)), the rulings made by the United States Supreme Court on matters of Constitutional Law, as necessary in making its decisions in those cases, are now binding precedent on all other courts. Now the Supreme Court has finally confirmed that (1) the Second Amendment describes an individual, and not a collective, right; and (2) that right is fundamental and applies against the States. This now lays the foundation for litigation to challenge other restrictions on the RKBA, and the rulings on matters of law necessarily made by the Supreme Court in Heller and McDonald will need to be followed by other courts in those cases.

...He [Scalia] said in a recent interview that laws about types of weapons could be constitutional...And he's correct. There is judicial authority going back well before Heller and McDonald for the proposition that constitutionally protected rights are subject to limited regulation by government.

We are beginning to test through litigation the boundaries of permissible regulation of the rights described in the Second Amendment. There are over 70 RKBA lawsuits pending in various stages in federal courts around the country.

k_dawg
February 3, 2013, 03:55 PM
Since the Second Amendment has been ruled to be an individual right, and incorporated to the States; anything necessary to engage in 2nd Amendment activities ought to be treated to the same standard as say, a Voter ID card.

Zero charge, equal requirements, shall issue, and a maximum alloted time to issue.

Frank Ettin
February 3, 2013, 04:12 PM
Since the Second Amendment has been ruled to be an individual right, and incorporated to the States; anything necessary to engage in 2nd Amendment activities ought to be treated to the same standard as say, a Voter ID card.

Zero charge, equal requirements, shall issue, and a maximum alloted time to issue. Why? That actually has nothing to do with the standards applicable to the review of constitutionally protected rights.

Under well settle judicial authority any regulation of a constitutionally protected right must pass some level of scrutiny. The lowest level of scrutiny sometimes applied to such regulation, "rational basis", appears to now have been taken off the table, based on some language in McDonald. And since the Court in McDonald has explicitly characterized the right described by the Second Amendment as fundamental, we have some reason to hope that the highest level of scrutiny, "strict scrutiny" will apply. Strict scrutiny has thus far been the standard generally applied to regulation of a fundamental right enumerated in the Bill of Rights.


There are three prongs to the strict scrutiny test, as follows:


The regulation must be justified by a compelling governmental interest; and


The law or policy must be narrowly tailored to achieve that goal or interest; and


The law or policy must be the least restrictive means for achieving that interest (i. e., there cannot be a less restrictive way to effectively achieve the compelling government interest, but the test will not fail just because there is another method that is equally the least restrictive).


The level of scrutiny between "rational basis" and "strict scrutiny" is "intermediate scrutiny." To satisfy the intermediate scrutiny test, it must be shown that the law or policy being challenged furthers an important government interest in a way substantially related to that interest.


Whichever level of scrutiny may apply, the government, state or federal, seeking to have the regulation sustained will have the burden of convincing a court (and in some cases, ultimately the Supreme Court) that the regulation is acceptable under the applicable level of scrutiny.

legaleagle_45
February 3, 2013, 05:10 PM
Originally Posted by Frank Ettin
we have some reason to hope that the highest level of scrutiny, "strict scrutiny" will apply.

Unfortunately that has not been the case in the lower courts thus far.... with most adopting intermediate scrutiny. I personally believe that both intermediate and strict scrutiny will be employed. I try to use the 1st Amend cases as a guidepost. Laws which restrict the exercise of the core right protected will be subject strict scrutiny. Those that merely impact the manner and means by which that core right may be execised will be subject to intermediate scrutiny... much like time, place and manner restrictions are allowable in 1st Amend jurisprudence so long as the rules are content neutral and allow for an adequate and comparable venue for the expression to be made.

Twiki357
February 3, 2013, 07:57 PM
I'll go on record that I believe that the NICS checks are UnConstitutional. Not necessarily the intent, but rather the way the checks are administered. I consider it to be very discriminatory because the data is incomplete and inaccurate. Consequently, there are many "Declines" that are invalid (As validated by the existence of UPIN's) and many "Proceeds" that should not be approved; especially in the area of unreported mental deficiency. I also feel that it discriminates in disqualifying conditions, such as: Minor and/or non-violent misdemeanors that are "punishable" by more that a year (Not sentenced to) sentence that create a prohibited person. Also, domestic court ordered restraining orders where there is no potential for dispute by the restrained party (Frequently an automatic filing by a divorce attorney whether warranted or not).

bushmaster1313
February 3, 2013, 11:02 PM
In the Miller case the supreme Court had no problem with a sawed off shotgun being illegal under the circumstances of that case.

To me, the real question is whether "may issue" is illegal.

Frank Ettin
February 4, 2013, 02:17 AM
...I personally believe that both intermediate and strict scrutiny will be employed. I try to use the 1st Amend cases as a guidepost. Laws which restrict the exercise of the core right protected will be subject strict scrutiny. Those that merely impact the manner and means by which that core right may be execised will be subject to intermediate scrutiny... much like time, place and manner restrictions are allowable in 1st Amend jurisprudence so long as the rules are content neutral and allow for an adequate and comparable venue for the expression to be made.I agree. What will be interesting to see is how the courts sort out what is core to the Second Amendment.

k_dawg
February 4, 2013, 08:06 PM
Frank, you missed the key word "Ought".

The courts can and have ruled slavery was legal. That does not mean it OUGHT to be.

Frank Ettin
February 4, 2013, 08:21 PM
Frank, you missed the key word "Ought".

The courts can and have ruled slavery was legal. That does not mean it OUGHT to be. No, I saw the word "ought", and my comment stands. The point is that we should all understand the bases upon which the courts will be considering these questions. These questions will not be decided on the bases of what you, or I, or anyone else, thinks is the right answer based on our values or desires.

And if on those bases you think that the Second Amendment "ought" be treated one way, there are many people who, on similar, personal bases, think it "ought" be treated another way; and I can guarantee that you, or I, won't like how those other folks think the Second Amendment "ought" to be treated.

Ole Humpback
February 10, 2013, 04:10 PM
All,

I think the point of my OP is being missed. Scalia is correct to an extent. In order for an armed citizenry to fulfill the intent of the 2A (that an armed citizenry is needed to prevent its gov't from becoming to big for its britches and if needed remove said gov't from power), we don't need to be able to have ownership of every weapon ever invented (nukes, submarines, tanks, airplanes, missiles, ect.). However; to fulfill this 2A right, would unrestricted ownership of NFA items be needed, IMO yes. But this is not what I was getting at.

The 94 AWB and Feinstein's AWB seek to take away practically all semi-auto guns and severely limit the availability of repeating guns in general. How can this be deemed constitutional in light of the above?

NICS, while good intentioned, also seems to me to have some grounds to be challenged for constitutionality albeit slim. I agree that NICS is needed to prevent guns from getting into the wrong hands. Example, if you try to buy a gun and have a warrant out for your arrest for a violent crime thats good grounds for a denial (rape, murder, manslaughter, ect.). However; there are plenty of instances where a misdemeanor charge (not conviction mind you) can effectively deny your purchase either temporarily or permanently. And to add insult to injury, the Federal gov't won't reinstate your 2A rights if you serve time in a federal prison and its hit or miss as to which states will reinstate your 2A rights after serving time in jail. Some states won't reinstate your 2A rights if you do time for a felony conviction.

So with this in mind:

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.

How can an AWB/restriction on arms be considered constitutional when the AWB/restriction on arms would effectively tack on the clause of "only those arms which the government deems acceptable for its citizens to own that don't pose a threat to the government"? To this end, how can any of the laws from the 1934 NFA to the 1994 AWB be considered constitutional?

Also, how can a NICS system be deemed constitutional when it would effectively tack on the clause of "only those people the government deems acceptable to own arms who are not a threat to the government, society, or themselves"? To this end, it seems that the current system, while not perfect, is a heck of a lot more 2A friendly as it includes an appeals process for incorrect denials.

A final word on felony convictions being a disqualifier of 2A rights. I went to college with a guy who did time for forgery when he was my age, a class C felony. His case:

He was sent to the hardware store to buy a saw for the jobsite. His boss gave him the company credit card to go buy the saw with and tells him that he needs to sign his bosses name for the credit card. 3 days later, the jobsite gets robbed and the saw goes missing. Police investigate, find the credit card receipt with his bosses signature on it, his boss denies buying the saw or authorizing anyone to go buy a saw. Police arrest my classmate and take him in for questioning. The police pull out his juvy record (he was over 18 at this time), lock him in a interrogation room for 14hrs, deny him legal console, and finally threaten to pull a gun on him to get him to confess to the crime. He confesses and is sentenced to 5 years, but serves only 2 because of the way the Indiana prison system works (they reward one day of good behavior with a one day reduction in sentence). He is now no longer able to own a firearm, bow, or hunt in the US because of this.

Frank Ettin
February 10, 2013, 04:26 PM
....How can an AWB/restriction on arms be considered constitutional when the AWB/restriction on arms would effectively tack on the clause of "only those arms which the government deems acceptable for its citizens to own that don't pose a threat to the government"? To this end, how can any of the laws from the 1934 NFA to the 1994 AWB be considered constitutional?

Also, how can a NICS system be deemed constitutional when it would effectively tack on the clause of "only those people the government deems acceptable to own arms who are not a threat to the government, society, or themselves"?....That will all need to be worked out in court.

... His case:

He was sent to the hardware store to buy a saw for the jobsite. His boss gave him the company credit card to go buy the saw with and tells him that he needs to sign his bosses name for the credit card. 3 days later, the jobsite gets robbed and the saw goes missing. Police investigate, find the credit card receipt with his bosses signature on it, his boss denies buying the saw or authorizing anyone to go buy a saw. Police arrest my classmate and take him in for questioning. The police pull out his juvy record (he was over 18 at this time), lock him in a interrogation room for 14hrs, deny him legal console, and finally threaten to pull a gun on him to get him to confess to the crime. He confesses...Sorry, but I wouldn't believe that for a second.

brboyer
February 10, 2013, 04:42 PM
In the Miller case the supreme Court had no problem with a sawed off shotgun being illegal under the circumstances of that case.

To me, the real question is whether "may issue" is illegal.
The circumstances being that the defendant & counsel never bother to show up for oral arguments, nor respond to briefs, nor respond in any other manner to the appeal.

Donut Destroyer
February 11, 2013, 12:58 AM
I'll go on record that I believe that the NICS checks are UnConstitutional. Not necessarily the intent, but rather the way the checks are administered. I consider it to be very discriminatory because the data is incomplete and inaccurate. Consequently, there are many "Declines" that are invalid (As validated by the existence of UPIN's) and many "Proceeds" that should not be approved; especially in the area of unreported mental deficiency. I also feel that it discriminates in disqualifying conditions, such as: Minor and/or non-violent misdemeanors that are "punishable" by more that a year (Not sentenced to) sentence that create a prohibited person. Also, domestic court ordered restraining orders where there is no potential for dispute by the restrained party (Frequently an automatic filing by a divorce attorney whether warranted or not).
There are some weak spots in the NICS operation Twiki, but some of those weak spots come from the fact that state laws vary drastically. The federal laws have to set some sort of standard because of all the different state laws. In my state, a felony is a crime that carries "hard labor" as part of the penalty. White collar convictions or property crimes (theft, shoplifting, etc) don't cause the loss of gun rights...at the state level. As for the misdemeanor domestic issues, a restraining order has to include a prohibition on using force or violence against the issuer to prohibit someone from possessing/purchasing a gun. Just your average divorce issued "don't go sell your wife's crap" restraining order is not a prohibitor.

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