How are Universal Background Checks Constitutional?


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CmdrSlander
March 13, 2013, 11:31 PM
The government has the power to regulate interstate commerce, under this power, they have ordered background checks on all guns being sold between states (by requiring them to go through FFLs) but how do they claim the power to regulate face to face transactions by two residents within the same state? They do not have that enumerated power and it violates the Tenth Amendment.

IMHO its not Constitutional.

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jerkface11
March 13, 2013, 11:33 PM
Neither one is constitutional. That won't stop them though.

ThorinNNY
March 13, 2013, 11:59 PM
"Constitutional? " snorts the would be dictator,adding " I don`t need no stinkin` Constitution ! You jus do egzaktly what I tell you to do an we`ll get along jus fine"! And thinks ".. until I no longer have a use for you! ".

joeschmoe
March 14, 2013, 12:06 AM
I argued the same point in this thread with cases and quotes from the Supreme Court.

http://www.thehighroad.org/showthread.php?t=703189&highlight=joeschmoe

Sambo82
March 14, 2013, 12:16 AM
If by "unconstitutional" you mean that it's repugnant to the intent of the framers regarding the RKBA, then it's unquestionably so. However for legal purposes "constitutional" really just means "the Supreme Court says;". If the government wants to throw you in prison for singing "God bless America" it's perfectly "constitutional" in the latter sense so long as the Supreme Court confirms it.

joeschmoe
March 14, 2013, 12:39 AM
Not true. The SCOTUS has limited the government in this area. Specifically in the cases I sighted in that thread. They have repeatedly said that police powers are specifically reserved to the states and cannot be used by the Fed under the guise of the "commerce clause" or any other power.

SCOTUS decisions are on our side on this issue. Congress will lose if they try to pass a UBC.

bushmaster1313
March 14, 2013, 01:45 AM
SCOTUS decisions are on our side on this issue. Congress will lose if they try to pass a UBC.

And it is unconstitutional to require a person who deals in guns to get an FFL?

joeschmoe
March 14, 2013, 02:34 AM
And it is unconstitutional to require a person who deals in guns to get an FFL?
No. An FFL is engaged in interstate commerce. Congress is specifically empowered to regulate interstate commerce. Private individuals are already prohibited from engaging in interstate sales of firearms. Congress only wants to regulate private sales because of crime/violence. SCOTUS has said that is not within their power.

usmarine0352_2005
March 14, 2013, 02:54 AM
.

So has anyone said that universal background checks are unconstitutional yet with the Obama administration pushing it right now?
.

Deus Machina
March 14, 2013, 05:05 AM
Their stance would be that, since they're not directly taxing it or actively preventing legal buyers from doing so, it's not regulating commerce--they're simply extending what one must do at a legal dealer to all sales.

AlbertH
March 14, 2013, 07:03 AM
Not true. The SCOTUS has limited the government in this area. Specifically in the cases I sighted in that thread. They have repeatedly said that police powers are specifically reserved to the states and cannot be used by the Fed under the guise of the "commerce clause" or any other power.

SCOTUS decisions are on our side on this issue. Congress will lose if they try to pass a UBC.
Article 1 section 8 of the U S Constitution:

To provide for organizing, arming, and disciplining the Militia, and for governing such
Part of them as may be employed in the Service of the United States, reserving to the
States respectively, the Appointment of the Officers, and the Authority of training the
Militia according to the discipline prescribed by Congress;

along with 2A:

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.

Gives them the right UNLESS YOU belong to a congressional organized militia.


Some say that 2A is the constitution but the constitution is what our country is based on and without the rest there is NO United States of America, just an well armed lawless land

No changes will be made until a 2A weapons case makes it to the US SUPREME COURT so they can provide a written opinion.

Want the issue resolved, find that case and spend millions in lawyers fees managing to get it through every lower court first and then millions more once it reaches there.

talk is free, actions cost tons of money, How rich do you feel?

baz
March 14, 2013, 10:12 AM
The government has the power to regulate interstate commerce, under this power, they have ordered background checks on all guns being sold between states (by requiring them to go through FFLs) but how do they claim the power to regulate face to face transactions by two residents within the same state?The same way that they reasoned that a farmer who raised crops for his own use was engaged in "interstate commerce." No doubt the founders are rolling over in their graves over how the "interstate commerce" idea has been abused, but until SCOTUS puts some effective limits on the idea, they can regulate just about anything they chose. The "Obamacare" decision was notable because the majority seemed to be agreeing, at last, that there were such limits. Then they went and said it was a "tax" and that made it different. So, even if they couldn't do it on the basis of "interstate commerce," all they would have to do would be to say that it is a "tax measure" and require you to pay a fee for the background check. I do not like it any more than you do. The only solution is for principled people to be voted into office and appointed to courts. Those who will support the constitution.

denton
March 14, 2013, 04:54 PM
Congress regulates a lot of things that are not interstate commerce under the Commerce Clause. For example, marijuana grown and used within a state is regulated.

The doctrine from Wickard (the wheat farmer case) is that things that impact interstate commerce are regulatable by Congress.

Didn't say that I like it, or that I approve, but that is the doctrine.

I would argue that universal background checks are probably unconstitutional, but on different grounds. SCOTUS ruled that either intermediate or strict scrutiny applies to gun rights. Under either, Congress is required to limit the breadth of the remedies they pass into law, and if the evidence of the effectiveness of the remedy is equivocal, the right-holder prevails.

My assertion is that even the system we have is not as narrowly tailored as it could be, and there is scant evidence that it does very much good. I think that we could come up with something less sweeping that demonstrably works.

joeschmoe
March 14, 2013, 05:40 PM
Incorrect. If you guys won't look it up yourselves I'll post it again. Follow the link above for more quotes and cases.
(upheld)
The similarities between this case and Wickard are striking. In both cases, the regulation is squarely within Congress’ commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity

GONZALES, ATTORNEY GENERAL, et al. v. RAICH et al

(struck down)
Under the theories that the Government presents in support of §922(q), it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign. Thus, if we were to accept the Government's arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate.

The Constitution requires a distinction between what is truly national and what is truly local, and there is no better example of the police power, which the Founders undeniably left reposed in the States and denied the central government, than the suppression of violent crime and vindication of its victims. Congress therefore may not regulate noneconomic, violent criminal conduct based solely on the conduct’s aggregate effect on interstate commerce


Section 922(q) is a criminal statute that by its terms has nothing to do with "commerce" or any sort of economic enterprise, however broadly one might define those terms. [n.3] Section 922(q) is not an essential part of a larger regulation of economic activity,
UNITED STATES v. MORRISON et al.

Bianchi?
March 15, 2013, 05:51 AM
They aren't constitutional. But that never stopped the Feds.

Lupinus
March 15, 2013, 09:35 AM
Short answer, they aren't. But as mentioned, that's never stopped them before. Nor has it stopped the SC on occasion from allowing it.

baz
March 15, 2013, 10:11 AM
"Congress therefore may not regulate noneconomic, violent criminal conduct based solely on the conduct’s aggregate effect on interstate commerce"

Thanks for that. But do you think they might find a way to say UBC is not a exercise of the police power? Sure, "reducing crime" (keeping guns out of the hands of the bad guys) is the putative justification the Dems are using, but that doesn't mean it is how SCOTUS would view it. Think "Obamacare" here, where a majority were prepared to knock it down, until Roberts flipped and called it a "tax." We've already got the NFA rationalized as a tax, why not UBC?

joeschmoe
March 15, 2013, 03:42 PM
Thanks for that. But do you think they might find a way to say UBC is not a exercise of the police power? Sure, "reducing crime" (keeping guns out of the hands of the bad guys) is the putative justification the Dems are using, but that doesn't mean it is how SCOTUS would view it. Think "Obamacare" here, where a majority were prepared to knock it down, until Roberts flipped and called it a "tax." We've already got the NFA rationalized as a tax, why not UBC?
Why not a poll tax? There is no tax suggested in UBC.


"To uphold the Government's contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. See supra, at 8. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated, cf. Gibbons v. Ogden, supra, at 195, and that there never will be a distinction between what is truly national and what is truly local, cf. Jones & Laughlin Steel, supra, at 30. This we are unwilling to do.
Under the theories that the Government presents in support of §922(q), it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign. Thus, if we were to accept the Government's arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate. "

UNITED STATES, PETITIONER v. ALFONSO LOPEZ,

wild cat mccane
March 15, 2013, 04:29 PM
You might be surprised to learn the 1994 AWB was also completely constitutional. Supreme Court even ruled it was.

joeschmoe
March 15, 2013, 04:37 PM
You might be surprised to learn the 1994 AWB was also completely constitutional. Supreme Court even ruled it was.

Really? What case was that? I think you made that up. SCOTUS never ruled on the '94 ban. Now any new ban would have to viewed with Heller/McDonald in mind.

I suggest you read Heller/McDonald or any of the other cases I've cited. Or post this mythical case you mention.

joecil
March 15, 2013, 04:53 PM
Background check have been in effect now from close to 30 years if buying through an FFL. It has never been challenged before the SCOTUS and to my knowledge no lower court either. So odds are they are and will be even with the court today leaning mostly conservative. Now background checks are done to get a job, get a lone, rent an apartment or even buy a house. This doesn't lead to or has it lead to a gun registration the way it has been done. Based on what Scalia said and hardly a liberal by any means in DC vs Heller the government can place limits on most any constitutional right.

jerkface11
March 15, 2013, 05:09 PM
You might be surprised to learn the 1994 AWB was also completely constitutional. Supreme Court even ruled it was.

You keep saying that but have yet to provide any evidence to back it up. Lying is not High Road.

Akita1
March 15, 2013, 05:13 PM
You might be surprised to learn the 1994 AWB was also completely constitutional. Supreme Court even ruled it was.
Can you please post a link to that ruling? Oh, that's right, you can't because it was NEVER RULED ON BY SCOTUS.

joeschmoe
March 15, 2013, 05:15 PM
FFL's are commercial businesses engaged in interstate commerce. That's clearly within the power of Congress to regulate. Private intrastate transactions are not. Congress can't regulate garage sales in your front yard either. They can't pass laws requiring you to pass federal inspections or prohibit the sale of furniture between individuals. Especially when their only reason to do so is to regulate crime/violence. That has already been struck down. That is not within the power of Congress.

Arbo
March 15, 2013, 05:24 PM
If by "unconstitutional" you mean that it's repugnant to the intent of the framers regarding the RKBA, then it's unquestionably so. However for legal purposes "constitutional" really just means "the Supreme Court says;". If the government wants to throw you in prison for singing "God bless America" it's perfectly "constitutional" in the latter sense so long as the Supreme Court confirms it.
I'm sure there are many that believe that line of thought. It is incorrect though... this lady describes the problem with it:

http://www.youtube.com/watch?v=dEimFzVnZkw

Akita1
March 15, 2013, 05:52 PM
I'm sure there are many that believe that line of thought. It is incorrect though... this lady describes the problem with it:

http://www.youtube.com/watch?v=dEimFzVnZkw
Great link; KrisAnne Hall was a Federal Prosecutor here in FL who got fired for being politically active (speaking at TP rallies, etc. but never in an official capacity). The person who fired her, Skip Jarvis, had done the same himself for Democrat Rod Smith when he ran for Governor of FL in 2006. She's a very smart lawyer who promotes constitutional originalism - smokes libs in debates on a regular basis!

baz
March 15, 2013, 09:49 PM
Why not a poll tax? There is no tax suggested in UBC.Well, I'm kind of waiting for that. Eventually, someone will suggest that a fee should attach to a UBC. I do guess that Roberts might distinguish his decision in "Obamacare" that it was a tax by arguing that a fee here would amount to a poll tax, i.e. a fee to exercise a fundamental right. Lots of uncharted territory here we we start wondering what's "constitutional" and what isn't. Until Heller, many thought that the individual right to keep and bear arms wasn't constitutional. Shows how much they knew. Who knows anything? It is just all speculation.

joeschmoe
March 15, 2013, 10:53 PM
Well, I'm kind of waiting for that. Eventually, someone will suggest that a fee should attach to a UBC. I do guess that Roberts might distinguish his decision in "Obamacare" that it was a tax by arguing that a fee here would amount to a poll tax, i.e. a fee to exercise a fundamental right. Lots of uncharted territory here we we start wondering what's "constitutional" and what isn't. Until Heller, many thought that the individual right to keep and bear arms wasn't constitutional. Shows how much they knew. Who knows anything? It is just all speculation.

No true. If you read US v Miller the court already said the right to arms was protected by the 2nd in 1934. The court has written lots on these subjects. (Commerce clause and arms). I posted quotes and links on page 1. We know what the Constitution says, and we know what SCOTUS has said on many subjects. Many just don't read them or try to find ways around them. They will fail.

Unless someone can show where in the Constitution the power for UBC is specifically delegated, then they don't have it.

gc70
March 15, 2013, 11:54 PM
Unless someone can show where in the Constitution the power for UBC is specifically delegated, then they don't have it.

Such a generalization is not helpful. The Supreme Court has succeeded in ruling on thousands of issues by looking further than whether something was 'specifically delegated' in the Constitution.

joeschmoe
March 16, 2013, 12:19 AM
Such a generalization is not helpful. The Supreme Court has succeeded in ruling on thousands of issues by looking further than whether something was 'specifically delegated' in the Constitution.
Your generalization is not helpful and backwards.
Read what they SCOTUS has actually said. Not just vague claims that there are no limits.

but we decline here to proceed any further. To do so would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated - Supreme Court of the United States

Sambo82
March 16, 2013, 04:27 AM
As others have said, U.S. vs Miller and Raich V. Gonzales has already established that the fed.gov can regulate a product under the Commerce Clause even if that product doesn't cross state lines, or even leaves the property of the owner. Arguing that the federal government "can't" regulate something because it stays within state boarders is about a century behind the times.

I know it's messed up, I know it's a dishonest reading of the Constitution, and that the Miller court was bullied into it, but it is what it is. Current court precident essentially invalidates Amendments 1-10.

joeschmoe
March 16, 2013, 05:06 AM
So it doesn't matter how many times I post where SCOTUS has limited Congress and the commerce clause. It's easier to just throw you hands up and cry the Constitution is dead.


(struck down)
Under the theories that the Government presents in support of §922(q), it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign. Thus, if we were to accept the Government's arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate.

The Constitution requires a distinction between what is truly national and what is truly local, and there is no better example of the police power, which the Founders undeniably left reposed in the States and denied the central government, than the suppression of violent crime and vindication of its victims. Congress therefore may not regulate noneconomic, violent criminal conduct based solely on the conduct’s aggregate effect on interstate commerce


Section 922(q) is a criminal statute that by its terms has nothing to do with "commerce" or any sort of economic enterprise, however broadly one might define those terms. [n.3] Section 922(q) is not an essential part of a larger regulation of economic activity

UNITED STATES v. MORRISON et al.


"To uphold the Government's contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. See supra, at 8. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. To do so would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated, cf. Gibbons v. Ogden, supra, at 195, and that there never will be a distinction between what is truly national and what is truly local, cf. Jones & Laughlin Steel, supra, at 30. This we are unwilling to do.
Under the theories that the Government presents in support of §922(q), it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign. Thus, if we were to accept the Government's arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate. "

UNITED STATES, PETITIONER v. ALFONSO LOPEZ,

Sambo82
March 16, 2013, 06:53 AM
Ah gotcha. So at best the USSC sometimes rules that there are limits to the Federal Government's powers under the Commerce Clause. So the Commerce Clause applying to intrastate commerce is unconstitutional after it was constitutional, after it was unconstitutional.

I'm glad you find comfort in this.

AirForceShooter
March 16, 2013, 08:25 AM
So if I pass a BG Check I should be able to buy a gun in any state?
That would be nice.

not happening but nice

AFS

gbran
March 16, 2013, 09:30 PM
The 2A is the least defended and most infringed right we have.

TFL
March 17, 2013, 12:27 AM
Article 1 section 8 of the U S Constitution:

To provide for organizing, arming, and disciplining the Militia, and for governing such
Part of them as may be employed in the Service of the United States, reserving to the
States respectively, the Appointment of the Officers, and the Authority of training the
Militia according to the discipline prescribed by Congress;

along with 2A:

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.

Gives them the right UNLESS YOU belong to a congressional organized militia.


Some say that 2A is the constitution but the constitution is what our country is based on and without the rest there is NO United States of America, just an well armed lawless land

No changes will be made until a 2A weapons case makes it to the US SUPREME COURT so they can provide a written opinion.

Want the issue resolved, find that case and spend millions in lawyers fees managing to get it through every lower court first and then millions more once it reaches there.

talk is free, actions cost tons of money, How rich do you feel?

How About
-CITE-
10 USC CHAPTER 13 - THE MILITIA 01/03/2012 (112-90)

-EXPCITE-
TITLE 10 - ARMED FORCES
Subtitle A - General Military Law
PART I - ORGANIZATION AND GENERAL MILITARY POWERS
CHAPTER 13 - THE MILITIA

-HEAD-
CHAPTER 13 - THE MILITIA

-MISC1-
Sec.
311. Militia: composition and classes.
312. Militia duty: exemptions.

-End-



-CITE-
10 USC Sec. 311 01/03/2012 (112-90)

-EXPCITE-
TITLE 10 - ARMED FORCES
Subtitle A - General Military Law
PART I - ORGANIZATION AND GENERAL MILITARY POWERS
CHAPTER 13 - THE MILITIA

-HEAD-
Sec. 311. Militia: composition and classes

-STATUTE-
(a) The militia of the United States consists of all able-bodied
males at least 17 years of age and, except as provided in section
313 of title 32, under 45 years of age who are, or who have made a
declaration of intention to become, citizens of the United States
and of female citizens of the United States who are members of the
National Guard.
(b) The classes of the militia are -
(1) the organized militia, which consists of the National Guard
and the Naval Militia; and
(2) the unorganized militia, which consists of the members of
the militia who are not members of the National Guard or the
Naval Militia.

bushmaster1313
March 17, 2013, 12:33 AM
Congress only wants to regulate private sales because of crime/violence. SCOTUS has said that is not within their power.

The gun free school zone law was ruled unconstitutional by SCOTUS when it did not say "in interstate commerce"

Law has been amended and has not been struck down

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