Do we have a Constitutional Right to not have Universal Background Checks?

[freyasman]

The presumption of innocence has nothing to do with the matter. The presumption of innocence comes from the Common Law and is simply a technical, legal rule affecting the burden of proof in a criminal trial. At a criminal trial the prosecution has the burden of proving all the elements of the offense beyond a reasonable doubt; and should the prosecution fail to do so, the defendant is, because of the presumption of innocence, entitled as a to an acquittal.

But there are many examples of a need to demonstrate one's qualifications for something, e. g., a license or a benefit, in order to get it. You are not entitled to a presumption of qualification -- even if that qualification is a lack of a criminal record.

How many of those other examples are civil liberties recognized by the SCOTUS as individual rights? We are most certainly entitled to a "presumption of qualification", if the qualification is that we are not criminals.

 

[freyasman]

Reality Check Boys and Girls,

If you truly believe that background checks are a violation of the 2nd Amendment based on the theory that the 2A means unrestricted firearm ownership then that means you believe that convicted felons, the mentally insane (i.e. severely mentally ill) should be allowed to own firearms.

If you object to felons and the mentally insane ,even if you believe only felons convicted of heinous crimes, should not be allowed to own firearms then you have accepted the theory the 2A is in fact a right subject to restrictions.

In which case we are only discussing what groups of people you want to be disarmed.

If they're considered safe enough to walk freely around our society, then I don't have a problem with them arming themselves. That seems too much like a caste system to me; "this person has full rights and that person only has partial ones...". I don't care where bad men get their guns, as long as I've got my own. Hardware doesn't keep you safe anyway; if it did, those two fools in Garland would have lasted more than 15 seconds against a 60 year old traffic cop.

 

[freyasman]

Felons are also prohibited from voting. Does a person have to prove s/he is not a felon in order to be allowed to vote?

I don't remember anyone asking me to prove I wasn't a convicted felon before I voted last.... but they certainly made me prove it when I bought my last firearm.

 

[CoalTrain49]

The world we live in.

Reality Check Boys and Girls,

If you truly believe that background checks are a violation of the 2nd Amendment based on the theory that the 2A means unrestricted firearm ownership then that means you believe that convicted felons, the mentally insane (i.e. severely mentally ill) should be allowed to own firearms.

If you object to felons and the mentally insane ,even if you believe only felons convicted of heinous crimes, should not be allowed to own firearms then you have accepted the theory the 2A is in fact a right subject to restrictions.

In which case we are only discussing what groups of people you want to be disarmed.

I want all of the Russians living in this country disarmed. Maybe bikers who are known to belong to a motorcycle club too. Especially Russian bikers.

Now how do we get this information into the FBI database. A UBC would be a good start. Line 10A will have to be modified but that shouldn't cost more than a million dollars. I know, dealers are going to lose some sales with this new restriction, but they all say they don't make any money on NIB sales anyway. They will just have to make up the difference by charging more for a transfer. Shouldn't be a problem. TIC

 

[ConstitutionCowboy]

Actually the United States incarcerates 707 people per 100,000 which is the highest of all industrialized nations in the world.

Without conviction and sentence information that statistic is misleading. It simply could mean there are more criminals walking the streets in those countries.

Woody

 

[ConstitutionCowboy]

Then that makes you a Libertarian. And in the minority.

How many politicians have you heard of that have ran successfully for office based a platform of giving people convicted of domestic violence and felonies and severely mentally ill the right to own guns?

...

No politician can give anyone a right. Rights are God given or natural(depending on your belief system). All those you mentioned have that right regardless. The only remedy that is constitutional is to adjudicate these people and if found to be a danger to society, lock them up.

Woody

 

[ConstitutionCowboy]

Wrong. What the Constitution says is (emphasis added):

​

Except for the powers in certain areas in which the Constitution gives the Supreme Court original jurisdiction. Ergo, the "federal courts" do not have the same footing in the Constitution as has been given to the Supreme Court - which, by the way, can overturn anything one of those inferior courts may have concluded. There is a reason they are called "inferior".

Woody

 

[Frank Ettin]

...Well I have answered the Marine's question and this thread going too far afield from his original post so I will go read and do something elsewhere.

You answered his question with fantasy and gibberish. That is no answer.

 

[Frank Ettin]

How many of those other examples are civil liberties recognized by the SCOTUS as individual rights?....

Pretty much all of them. They pretty much all fall under the "right to liberty and property" because they pretty much all relate to one's ability to earn a living.

And many court decisions have considered the nature of the various qualification and found a constitution requirement that the qualification be reasonably related to one's suitability for the pursuit being licensed.

...We are most certainly entitled to a "presumption of qualification", if the qualification is that we are not criminals.

Cite a court decision to the effect.

 

[ConstitutionCowboy]

But there are many examples of a need to demonstrate one's qualifications for something, e. g., a license or a benefit, in order to get it. You are not entitled to a presumption of qualification -- even if that qualification is a lack of a criminal record.

Except, of course, where the Right to Keep and Bear Arms is concerned. The Second Amendment forbids it.

Woody

 

[Frank Ettin]

But there are many examples of a need to demonstrate one's qualifications for something, e. g., a license or a benefit, in order to get it. You are not entitled to a presumption of qualification -- even if that qualification is a lack of a criminal record.

Except, of course, where the Right to Keep and Bear Arms is concerned. The Second Amendment forbids it....

Only if the Supreme Court says so. In the real world your opinion doesn't mean anything.

 

[ConstitutionCowboy]

Only if the Supreme Court says so. In the real world your opinion doesn't mean anything.

That's quite a claim. Show me where in the Constitution the Court has been granted power to ignore the Constitution.

Woody

 

[Frank Ettin]

Only if the Supreme Court says so. In the real world your opinion doesn't mean anything.

That's quite a claim. Show me where in the Constitution the Court has been granted power to ignore the Constitution....

We've had these discussions before, and I've run out of patience with your silly games. The Founding Fathers assigned to the federal courts (not to you) the authority to exercise the judicial power of the United States to decide cases arising under the Constitution. SCOTUS has the final say among the federal courts.

What the Supreme Court says on these matters has an impact on real life in the real world. What you say does not.

 

[Sol]

"That's quite a claim. Show me where in the Constitution the Court has been granted power to ignore the Constitution."

It doesn't specifically state that, but it does give the judiciary the power to rule however it feels. That's why in my opinion the SC judges need term limits and elections. Life term appointees are BS.

Just relax comrade, the ushering in of the new Utopia will give you a heart attack. You can't win in or fight the system.

 

[dogtown tom]

Guy B. Meredith ......Mentally unstable get a pass due to medical record privacy,

No, they do not.
First, "Mentally unstable" is a term not used in any Federal law or ATF regulation. The Form 4473 actually asks on Question 11.f. "Have you ever been adjudicated mentally defective (which includes a determination by a court, board, commission, or other lawful authority that you are a danger to yourself or to others or are incompetent to manage your own affairs) OR have you ever been committed to a mental institution? (See instructions for Question 11.f.) "
Second, medical records privacy is not at issue.......the determination of "mentally defective" is a legal one.

 

[Frank Ettin]

...in my opinion the SC judges need term limits and elections. Life term appointees are BS....

Except the Founding Fathers specifically didn't do so to avoid over politicizing the federal courts. For those who claim the federal courts are too political, consider how much more so they would be if judges had to regularly stand for election.

If the Constitution, the Bill of Rights, and the federal courts are supposed to be some type of check on a tyranny of the majority, the federal courts would hardly be effective as such were they subject to the whims of the electorate. Many of the most significant federal judicial ruling have been unpopular. Perhaps if federal judges were elected on a regular basis we would not have had Heller and McDonald and instead have had Supreme Court precedential support for a collective rights interpretation of the Second Amendment.

 

[Sol]

They arent overly politicized now?

 

[Frank Ettin]

They arent overly politicized now?

They may be influenced by ideology and political philosophy, on both sides. But they have no need to pander to the electorate.

 

[Sol]

Would "electorate" be a synonym for "the people"?

It only makes sense that they would politically align with their apointees and err to the side of the government.

 

[alsaqr]

For those who claim the federal courts are too political, consider how much more so they would be if judges had to regularly stand for election.

A fine example of an elected court is the WV Supreme Court Of Appeals. That court rules on criminal and civil matters.

Example: A coal mine executive donated 3.5 million dollars to a candidate for the WV court. Once in office the justice, refused to recuse himself in a case against his chief contributor.

SCOTUS took exception and ordered the "justice" to recuse himself.

Held: In all the circumstances of this case, due process requires recusal.

.............................................................................................

The judgment of the Supreme Court of Appeals of WestVirginia is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.

www.supremecourt.gov/opinions/08pdf/08-22.pdf

 

[patmccoy]

Originally posted by Frank Ettin:To be sure, the People can exercise a form of ultimate authority through the political process by electing representatives who will enact laws which can, within constitutional limits, modify the effects of court decisions. This was illustrated not too long ago by the case of Kelo v. City of New London, 545 U.S. 469 (2005) as an example of this phenomenon. It was a ruling on a technical point of eminent domain law (specifically involving the "takings" clause of the Fifth Amendment applied to the States through the 14th Amendment and the meaning of "public use"). The result was found to be unsatisfactory by many. As a consequence, the legislatures of 42 States revised those States' eminent domain laws to avoid a Kelo result. "Checks and balances" at work.

And if the manner in which courts apply the Constitution is sufficiently unsatisfactory to enough people, we can, through the political process, seek to amend the Constitution, as provided in the Constitution.

And jury nullification would seem to be one more, perhaps the major, control by the people.

Also, not discussed so far is how would the "right to privacy" as determined under the Constitution would affect a requirement to apply for any background check before being able to exercise any other rights under the Constitution?

 

[freyasman]

Pretty much all of them. They pretty much all fall under the "right to liberty and property" because they pretty much all relate to one's ability to earn a living.

And many court decisions have considered the nature of the various qualification and found a constitution requirement that the qualification be reasonably related to one's suitability for the pursuit being licensed.

Cite a court decision to the effect.

Show me where authority was granted to the government to place conditions on the exercise of my rights.

 

[Frank Ettin]

Show me where authority was granted to the government to place conditions on the exercise of my rights.

I asked first.

But the reality is that they have. If you claim they can't it's now your burden to establish that they can't. That's the way things work in the real world.

Of course you can join a number of others in this thread in their fantasy worlds, while the real world continues on without regard to your, or their, opinions.

 

[Frank Ettin]

And jury nullification would seem to be one more, perhaps the major, control by the people.

Jury nullification can be a two edged sword. Some may look on it as a check on government by permitting a jury to acquit someone who might be considered a victim of government excess. But I suspect that during some of the "bad old days" of the post Reconstruction South and some of the early days of the Civil Rights Movement, juries regularly practiced nullification to let off various murders of Blacks, participants in lynch mobs and the like. We've certainly seen perversion of jury nullification -- at times when no White jury would convict a White man of a crime against a Black (or Native American or Asian or Hispanic) no matter what the law or the facts were.

 

[ConstitutionCowboy]

We've had these discussions before, and I've run out of patience with your silly games. The Founding Fathers assigned to the federal courts (not to you) the authority to exercise the judicial power of the United States to decide cases arising under the Constitution. SCOTUS has the final say among the federal courts.

What the Supreme Court says on these matters has an impact on real life in the real world. What you say does not.

I know that line from you quite well, Frank. I know you consider my questioning the Court following the Constitution over their own opinions and agenda a silly notion. But, please answer my question: Where in the Constitution has the Court been granted permission to ignore the Constitution?

You see, the judicial power is not something ethereal, nor haughty, nor above the bounds of something as earthly as a constitution, nor derived from the whims and political leanings of the justices themselves. If that was what 'justice' was, there'd be no need for a court system. All that would be necessary is a dictatorship. Maybe that is how you perceive the Court. Do you perceive the Court to be a dictatorial body? You give it unflappable reverence no matter what the Court hands down - it is always right in your world.

Woody