Universal Background Checks

Discussion in 'Legal' started by Styx, Mar 18, 2021.

  1. Styx

    Styx Member

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    Is there case law that gives the Federal government the power to force states to abide by a UBC legislation? Seems like a state and not a federal issue when it comes to whether two private individuals can sell, trade, or gift a firearm to one another.
     
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  2. Spats McGee

    Spats McGee Moderator Staff Member

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    Firearms travel in interstate commerce. Thus, Congress can regulate them under the Commerce Clause. Throw in the Supremacy Clause, and there you have it.
     
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  3. Styx

    Styx Member

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    Just about everything travels interstate in one way, shape, or form.... That would essentially give the Federal government complete power over states, and mean states had almost zero rights.

    Be it that it may, then I do not see how the gifting of a firearm can fall under the Commerce Clause.
    United States v. Lopez
     
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  4. Spats McGee

    Spats McGee Moderator Staff Member

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    I don't disagree with you. There's been a drastic expansion of federal power under the Commerce Clause since about the turn of the 20th century.
    You may not, but Congress sure does.
     
    Last edited: Mar 20, 2021
  5. Styx

    Styx Member

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    Thought this was a gun forum and legal section where stuff like this could be discussed. Forgot where I was at. You can close the thread. I'll start a new one on a different forum.
     
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  6. DocRock

    DocRock Member

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    Do I understand the question to be whether background checks on transfers between individuals within the same state, ie no interstate commerce, would be subject to federal jurisdiction and, if so, what case law precedent exists for that?
     
  7. Spats McGee

    Spats McGee Moderator Staff Member

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    I thought we were discussing it.
     
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  8. Frank Ettin

    Frank Ettin Moderator Staff Member

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    Courts have taken a broad view of the Commerce Clause in gun law cases, for example:

    1. In U.S. v. Chesney, 86 F.3d 564 (C.A.6 (Tenn.), 1996), the Sixth Circuit affirmed, against a Commerce Clause challenge Chesney's conviction for being a felon in possession of a firearm.

      In rejecting Chesney's assertion that the 18 USC 922(g) is unconstitutional, the court of appeal noted, at 568 -- 569:

      In rejecting Chesney's assertion that the statute can not be applied in his case, the court of appeal noted, at 570 -- 571, emphasis added:

    2. In U.S. v. Singletary, 268 F.3d 196 (3rd Cir., 2001), the Third Circuit affirmed a conviction for being a felon in possession against an attack on the constitutionality of 922(g), at 197:

      In rejected Singletary's assertion, the court of appeal noted, at 200:

    3. In United States v. Hoyle, 697 F.3d 1158 (10th Cir., 2012), the Tenth Circuit affirmed Hoyle's conviction for being a felon in possession. In doing so the court of appeal noted, at 1165:
     
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  9. pdsmith505

    pdsmith505 Member

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    I suppose the conversation can be expanded a bit by including Wickard v Filburn (https://supreme.justia.com/cases/federal/us/317/111/), which has nothing to do with firearms, but does deal with the Commerce Clause. Filburn happened to grow excess wheat beyond the quota established by Congress to stabilize grain prices, and was subsequently fined. That wheat was intended to feed his own animals on his own farm. The court upheld his fine because his locally produced wheat competed with commercial wheat

    What I infer from Wickard in the context of the proposed Universal Background Check is that, even if you were to build a firearm yourself and it never crossed state lines, the Federal government could regulate the creation, possession, and transfer of the firearm based on the Commerce Clause because your home-made firearm is in competition with commercial firearms. I don't think it would be a far reach at all to say that current case law would support a UBC requirement prior to making a firearm yourself... even if you mined the source material on your own land.

    I agree with Spats...
    And I agree with the OP...
    But I'm not a Justice, so my opinion on whether that expansion is justifiable under the constitution doesn't mean anything at all.

    Someone can correct me if I'm wrong, but didn't Congress remedy the Court's opinion in Lopez by simply passing the Gun Free School Zone act again and stipulating that it applied to any firearm that has passed in or affected interstate congress?
     
    Last edited: Mar 18, 2021
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  10. DMK

    DMK Member

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    Wow. So the court's opinion on Interstate commerce is based on the economic equivalent of the Butterfly Effect.

    Yeah, that's a fine string the Feds are just going to cling to with all their might. Power corrupts, and absolute power....
     
    Last edited: Mar 19, 2021
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  11. DrDeFab

    DrDeFab Member

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    Pretty much, at least according to Justice Clarence Thomas. In his dissent to GONZALES V. RAICH (cornell.edu) he writes:
     
  12. AK Hunter

    AK Hunter Member

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    States can & do refuse to follow the Fed laws. Look at the Marijuana laws.
     
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  13. DMK

    DMK Member

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    Justice Thomas is spot on. It's a federal power grab. And a blatant one at that.
     
  14. CapnMac

    CapnMac Member

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    Well, this is specifically the Legal Subforum. And by both rule and tradition, it focuses on the concrete and not the speculative.
    Use of the Commerce Clause is a very real thing and with considerable case law precedent. Frank has excellently offered us toothsome examples of this, and specifically to the issue of gun rights.

    However, we do not have any finished UBC law to cite--so any discussion must needs be speculative. This is doubly so as the language of, for instance, HB 7, is now in the possession of the Senate and subject to debate within that body. It's subject to change, potentially substantial. It's also subject to filibuster, and might be tabled and pass into the vast history of legislation that was not enacted.
     
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  15. DMK

    DMK Member

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    There is no legal interstate commerce of Marijuana for private citizen consumers. In theory, the states are in an economic vacuum where it is concerned.

    Ironically, if the feds legalized it and there was legal interstate commerce, then they could tell the states what to do. Restrict growth, restrict sales, etc.

    For example: Alcohol, firearms, prescription drugs, etc.
     
    Last edited: Mar 19, 2021
  16. 1942bull
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    1942bull Contributing Member

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    Not being a lawyer my reply is based upon historical acts not statutes. The federal government has regulated firearms for many decades. The law requires a authorization to purchase certain guns and equipment like fully automatic guns and compressors. It requires that a person be over 21 and undergo a background check to purchase a handgun from an FFL. It proscribes that a resident of a state must undergo the background check in their own state. If it can do those things then I do not see any prohibition to requiring universal background checks. I am not certain what empowers the Feds to legislate those restrictions, but over many decades those restrictions have not been struck down by SCOTUS, which in some past cases including Heller has acknowledged that the government can enact reasonable regulation of firearms like preventing the mentally lll, felons and domestic abusers the right to possess a handgun. In light of that history I think UBCs are inevitable since over 80% of the 2A supporting public thinks they are OK. The question I have is if limited background checks keep guns out of the hands of some who should not have them, why are UBCs bad? Personal sales have put guns into the hands of some people who should not have had them. I await being enlightened.
     
  17. pdsmith505

    pdsmith505 Member

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    I'd point you to Table 5 on page 7 of this report that surveyed prisoners on how they obtained firearms used in crime. https://www.bjs.gov/content/pub/pdf/suficspi16.pdf

    The data show that most guns used in crime are not obtained through legal sales of all types. In fact, guns from retail purchases which include background checks (10%) account for more crime than guns from individual purchases outside of sources that are already engaged in illegal sales (8%).
     
  18. DMK

    DMK Member

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    Whether it is constitutional or not aside, here is my concern with it. Between HR 8 and HR 1446, they are making it illegal for anyone to purchase or transfer a firearm without a NICs check. (no private sale or transfer). Then they are requiring that the FBI give a firm OK in order for the transfer to proceed. No response, no transfer. (Currently if the FBI does not respond in three days the transfer proceeds).

    What if they then defund the FBI's NICs processing? Back door gun ban.

    What if the attorney general convinces the FBI just to not allocate any resources to background checks? Back door gun ban.

    Right now, we are occasionally seeing NFA forms that should and do normally process in one month, sometimes take a year or more because the FBI will not respond to the background check. No explanation. Calls to ATF and FBI get no where. Sometimes these get moved with a call to a pro-gun congressman, sometimes not. Imagine now if this happened to normal gun purchases?

    Sometimes these things look like they are fair and just on the surface, but they will not be when controlled by bureaucracy.

    Now, as pdsmith505 said, this will not have any measurable effect on crime. It will only serve as an unfair hinderance to those of us who wish to abide by the law.

    It is nothing less than another road block to legal gun ownership. That is the intent.
     
    Last edited: Mar 19, 2021
  19. 1942bull
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    1942bull Contributing Member

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    I do understand the points that others have made above and see the legitimacy of them. out of curiosity I checked to see how private sales are regulated in the states. Here is the requirement in my state: PA


    Pennsylvania
    18 Pa. Cons. Stat. Ann. § 6111, et seq:private sales of handguns or short-barreled rifles/shotguns may only be conducted in the county sheriff's office or the place of business of a licensed importer, dealer, or manufacturer.
    No background check requirement for private sales of rifles or shotguns (regular sized).

    Using this URL you can check out any state:
    https://www.findlaw.com/consumer/consumer-transactions/private-gun-sale-laws-by-state.html

    i
    n terms of my state UBC legislation would not be a meaningful change for me, and that would be tru in quite a few states. Anyway, I’m on the fence when it comes to federal UBC legislation.
     
  20. CapnMac

    CapnMac Member

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    They have not yet enacted a law. There are two proposed bills. One has gone to the Senate. Its fate in the Senate is not Sure.
    HR 8 only mandates that every (barring a tiny few) firearms transactions must go through an FFL.
    Even if that means having to drive all the way across Wyoming to the one closest FFL.

    HR 1446 would eliminate the current automatic Procede and substitute an indefinite number of 10 day delays, each of which the purchaser would have to file and follow up on.

    The two are not linked.
    They are not certain, either.
    Both have been passed in the House before, repeatedly.
    Both have withered on the vine in the Senate, and not on Party lines.

    Then thirty States would be forced to provide their own black list checking, which would constitute and illegal Taking by the fedgov, and wind up in court.
    Please, too, it's NICS, the National Instant Check System. A NIC is a Network Interface Card.

    NFA actually involves a proper Background Investigation, which is why they need so much more inforation than a 4473 contains.
    NICS is just a database maintained by FBI, that contains most of the reported Prohibited Persons by name and address.
    FBI does not actually "do" anything when a NICS call comes in. A clerk at a phone (or a dumb terminal for echeck) queries the list and compares the name given to the ones on the list. Getting a Match means Deny. No Match get a Proceed, any other result get Delay.
     
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  21. DMK

    DMK Member

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    The difference it, while you do have to go to a Sheriff's office or FFL now for private sale, there is no background check. HR 8 will require a NICS check for all firearms transfers. And you will need to go to a dealer, not the other options open to you now. I have done many private transfers at such places because it is a safe place to meet and that's not a big deal. But HR 8 will require a transfer through the dealer itself and there will be a cost for that. Dealers won't be doing NICS checks for free. In some places that fee is exorbitant.

    Also as CapnMac said, "HR 1446 would eliminate the current automatic Procede and substitute an indefinite number of 10 day delays, each of which the purchaser would have to file and follow up on."

    HR8 and HR 1446 are separate bills, but if both passed, together they would be a big problem. If only one is passed now, then the other could be passed at some point in the future.
     
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  22. wiscoaster

    wiscoaster Member

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    In Wisconsin, the state does the background check for handguns, so I would think that state law would apply in those cases.
     
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  23. CapnMac

    CapnMac Member

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    And, sadly, that's not addressed in HB 8, it's a sore point of contention in the Senate rectification hearings (and got it tabled in the last Congress, even before Mitch left it off the committee schedules altogether).
    There's a legitimate "read" of the current text that says both a FedGov and a State check would have to be performed.
    We don't actually know. Which really, really makes this bad fodder for Legal.
     
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  24. Pudge

    Pudge Member

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    Just know that people not involved in the discussion learn a great deal from these threads. Even just pointing out what we don't know is very informative. If you need to close a thread, so be it. But a lot of this discussion is very helpful for understanding proposed legislation, much more so than media reports.
     
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  25. Sniper66

    Sniper66 Member

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    I've attended a few lectures on the Constitution from professors of Constitutional law. Uniformly they all say the Commerce Clause may be the most abused part of the Constitution. You can bet it will be abused some more with this issue.
     
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