How legal are magazin capacity bans and universal background checks?

[usmarine0352_2005]

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How legal is a magazine capacity ban and universal background checks? And by universal background checks I mean background checks between two private parties, such as at a house, not one done at a gun store.


How legal is forcing a background check between two private parties at a gunshow, with neither of them being dealers?
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[Frank Ettin]

All questions for a court. We can speculate and "blue sky" but it will largely be useless and worthless.

Lawyers can, with some degree of confidence, make general predictions about how a court is likely to rule on certain questions. But doing so in any meaningful, rigorous way requires a sound understanding of applicable legal principles, extensive research of applicable case law and making some assumptions about the factual context in which the question arises.

We should also note private transfers already require background checks under a variety of circumstances. Under federal law, a private transfer must generally go through a dealer when the transferor and transferee are residents of different States. And a number of States already require private transfers to be accompanied by various formalities, including, in one way or another, a background check.

Also, a number of States have had magazine capacity limits for some time.

That said, a federal requirement for a universal background check on private transfers, whether by requiring that they go through a dealer or some how giving private parties access to the system, has some hurdles to get over. First, there's a question of whether even the already stretched Commerce Clause would extend far enough to sustain such a federal law. Then there's the practical issue of whether the system has sufficient capacity.

On the magazine limit side, Alan Gura has opined that the New York seven round limit is unconstitutional.

Whether or to what extent such laws have been tested in court, I can't say. But those laws are still around and being applied.

 

[AirForceShooter]

I guess we're going to find out in a few years'


AFS

 

[baz]

Already being discussed here.

As noted, the constitutionality/legality will depend on how it plays out in the courts. And that can depend on waiting for just the right kind of case to litigate. The recent "victories" in Heller and McDonald required two or three decades of evolution in jurisprudence before the time was ripe (right) to get it before the Supreme Court. The result was to say, in effect, that laws that had been on the books for years -- a couple of decades, or more -- in DC and Chicago were illegal. So even if something is plausibly illegal or unconstitutional, that doesn't mean that people will not be prosecuted for breaking those laws.

Part of the problem here is the way that we've let the Supreme Court become the only arbiter of what is "constitutional." Not all the founders intended for that. (Nullification, anyone?) Maybe, in another lifetime, the real meaning and sense of the 10th Amendment will be restored, and States will be recognized as arbiters as well as to what is constitutional. But until then, it is all speculation until the fat lady (SCOTUS) sings.

 

[ontarget]

Wouldn't UBC's also require universal registration? Isn't that one of the holy grails of the Left? Otherwise how would they know who sold what?

 

[breakingcontact]

How legal is it for the government to compel you to buy health insurance or have to pay a fine/tax?

Unfortunately, it's all as legal as the messed up system can say it is.

 

[Bobson]

The US Supreme Court says its totally legal. In D.C. V Heller, the court ruled that while the second amendment does give citizens the right to own firearms "for traditional purposes such as defense within the home," firearm ownership is not an "unlimited" right - which is why we must jump through hoops to own suppressors or machine guns. I would expect the court to rule that limits on magazines, or universal background checks fall into the same "reasonable limit" category.

Of course, time will tell.

On the magazine limit side,*Alan Gura has opined*that the New York seven round limit is unconstitutional

As evidenced by his work in the Heller case, Gura has a great head on his shoulders. That being said, its illogical to claim the seven-round-limit is unconstitutional, but the ten-round-limit already in place in some states is a-ok.

 

[Frank Ettin]

...Part of the problem here is the way that we've let the Supreme Court become the only arbiter of what is "constitutional." Not all the founders intended for that...

It's hardly a matter of "letting" the Supreme Court do anything. And perhaps not all of the Founding Fathers agreed on everything.

Fifty-five delegates attended the Constitutional Convention in 1786-87. Thirty-nine signed the proposed Constitution. Thirteen left without signing, and three refused to sign.

There was then a bitter fight over ratification by the States. And it indeed looked like the Constitution would fail ratification until the Massachusetts Compromise was hashed out -- giving us the Bill of Rights after the Constitution was ratified without the Bill of Rights.

And while the Founders aren't here to fully explain the depth and breadth of their intentions and expectations, they did leave us an amazing legacy -- The Constitution of the United States of America. And from the Constitution, we can infer that they intended us to have, among other things:

• A system of checks and balances achieved through a separation of powers among the Congress (legislative), the President (executive) and the Courts (judicial);
  
  
• Of these three branches of government, the legislative was most directly subject to the influence of the body politic, and the judicial was the least subject to the direct influence of the body politic;
  
  
• Judicial power vested in a Supreme Court and such inferior courts as Congress might establish, and this judicial power would extend to all cases arising under, among other things, the Constitution and the laws of the United States;
  
  
• A Constitution that could be changed, albeit with difficulty.

But in any event, the Constitution as ratified provided (Article III):

Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish....

Section 2. The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution,...

And thus disagreements concerning the application of the the Constitution to the resolution of particular disputes is the province of the federal courts -- something clearly the Founders intended.

The exercise of judicial power and the deciding of cases arising under the Constitution necessarily involves interpreting and applying the Constitution to the circumstances of the matter in controversy in order to decide the dispute.

And, as Chief Justice John Marshall wrote in the decision in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803):

....It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.

So, if a law [e.g., a statute or treaty] be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.....

Note also that many of the Founding Fathers (the delegates to the Constitutional Convention who signed the Constitution) were lawyers. They were familiar with English Common Law (the basis of out legal system) and that for a long time it had been customary for the courts, under the Common Law, to consider the validity of such matters as the Acts of Parliament and the actions of the Crown under the rather amorphous collection of statutes, court judgments, treaties, etc., that became understood in the Common Law to be the English Constitution. And thus there was Common Law precedent, as no doubt understood by the Founding Fathers, for the invalidation of a law as unconstitutional being within the scope of the exercise of judicial power. (And English cases continued to be cites by courts of the United States for many years after Independence.)

And while John Marshall may not have been a Founding Father, he wasn't at the Constitutional Convention, he should at least be entitled to be considered a founding uncle. He was a delegate to the Virginia Convention that would ratify or reject the Constitution and, together with James Madison and Edmund Randolf, led the fight for ratification.

 

[Bubba613]

I wouldn't think universal background checks would stand up. Since teh feds already regulate interstate commerce in guns then intrastate transfers would pretty clearly not be within their authority.
I think a magazine limit would pass muster though.