How are Universal Background Checks Constitutional?

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CmdrSlander

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

So has anyone said that universal background checks are unconstitutional yet with the Obama administration pushing it right now?
.
 
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.
 
joeschmoe said:
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.
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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?
 
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?
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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.
 
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.
 
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
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(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.
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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.
 
joescmoe said:
"Congress therefore may not regulate noneconomic, violent criminal conduct based solely on the conduct’s aggregate effect on interstate commerce"
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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?
 
baz said:
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?
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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,
 
You might be surprised to learn the 1994 AWB was also completely constitutional. Supreme Court even ruled it was.
 
wild cat mccane said:
You might be surprised to learn the 1994 AWB was also completely constitutional. Supreme Court even ruled it was.
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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.
 
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.
 
You might be surprised to learn the 1994 AWB was also completely constitutional. Supreme Court even ruled it was.
Click to expand...

You keep saying that but have yet to provide any evidence to back it up. Lying is not High Road.
 
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.
 
Sambo82 said:
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.
Click to expand...
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
 
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