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How are Universal Background Checks Constitutional?

Discussion in 'Legal' started by CmdrSlander, Mar 13, 2013.

  1. CmdrSlander

    CmdrSlander Well-Known Member

    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.
  2. jerkface11

    jerkface11 Well-Known Member

    Neither one is constitutional. That won't stop them though.
  3. ThorinNNY

    ThorinNNY Well-Known Member

    "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! ".
  4. joeschmoe

    joeschmoe Well-Known Member

  5. Sambo82

    Sambo82 Well-Known Member

    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.
  6. joeschmoe

    joeschmoe Well-Known Member

    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.
  7. bushmaster1313

    bushmaster1313 Well-Known Member

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

    joeschmoe Well-Known Member

    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.
  9. usmarine0352_2005

    usmarine0352_2005 Well-Known Member


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

    Deus Machina Well-Known Member

    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.
  11. AlbertH

    AlbertH member

    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?
  12. baz

    baz Well-Known Member

    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.
  13. denton

    denton Well-Known Member

    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.
  14. joeschmoe

    joeschmoe Well-Known Member

    Incorrect. If you guys won't look it up yourselves I'll post it again. Follow the link above for more quotes and cases.
  15. Bianchi?

    Bianchi? Well-Known Member

    They aren't constitutional. But that never stopped the Feds.
  16. Lupinus

    Lupinus Well-Known Member

    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.
  17. baz

    baz Well-Known Member

    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?
  18. joeschmoe

    joeschmoe Well-Known Member

    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. "

  19. wild cat mccane

    wild cat mccane Well-Known Member

    You might be surprised to learn the 1994 AWB was also completely constitutional. Supreme Court even ruled it was.
  20. joeschmoe

    joeschmoe Well-Known Member

    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.

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