Constutional question about Universal Background Checks

[Bekeart]

Universal Background Check


There is one aspect that nobody (that I know of, anyway) has brought up regarding the "universal background check" rhetoric - Does the federal government have the authority to require it.


The 1968 GCA was predicated on the federal government's authority to regulate interstate commerce (which was the basis for eliminating the ability of an individual to buy a gun outside his state of residence, but they can't stop a person from buying or selling a gun within his state).

The "Brady" instant background check was ONLY applicable to dealer sales because they are "involved in interstate commerce" (most of their guns come from interstate commerce). Thus, the federal government lacks the authority to require background checks for sales between individuals within their own state.

In 1968 an individual was specifically prohibited from dealing in interstate commerce.  Now in 2013 attempts are being made to define the individuals conduct as that regulated because it will now be covered by the laws relative to "involved in interstate commerce". How can an individual not be involved in interstate commerce at the same time he is determined to be involved in interstate commerce .



"When I use a word," Humpty Dumpty said, in a rather scornful tone, "it means just what I choose it to mean - neither more nor less." - Lewis Carroll Through the Looking Glass

Doublethink!- George Orwell - 1984
Often called doublespeak

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The United States Constitution


Section 8 - Powers of Congress

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;



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Amendment 10 - Powers of the States and People. Ratified 12/15/1791. Note

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

 

[MurphyPr]

I'm sure I hold a minority opinion, but in my view the commerce clause does not confer upon the federal government the authority to regulate private, peaceful economic transactions by and between citizens (including citizens organized into business enterprises, incorporated or not).

Rather, the purpose of the commerce clause, again in my view, was and is intended to authorize the federal government to take steps to prevent state governments from waging economic war upon one another through various means, such as negotiating favorable trade agreements with foreign nations, or imposing tariffs on goods imported from another state.

 

[SMSgt]

I think I skipped civics class that day.

 

[GBertolet]

There is a bipartisan committee in D.C., crafting a legislative proposal concerning enhanced background checks. Tentatively, there has been agreement that transfers between family members, will be exempt, and if you have a CCW, you will be exempt also on private transfers, as you have been already verified. Also there is to be protections from preventing background checks as a means of registration. Nothing more real specific was released. This is all just in committee, and negotiations could break down, or be rejected by the party leaders, and this will all change.

 

[ASA335]

Section 8 - Powers of Congress

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

Although you and I would read that as limiting the federal government's reach into commerce at a local or individual level, the USC has in the past determined that federal regulation of commerce can (in some instances) do so. Read "Wickard v. Filburn, 317 U.S. 111 (1942)".

Wickard v. Filburn dealt with a purported violation of the Agricultural Adjustment Act of 1938. This act was meant to stabilize wheat prices nationally by limiting the farm acreage that could be used to grow wheat.

Farmer Roscoe Filburn used additional acreage to grow wheat for his own use (not for commerce, with no intention of selling it) to feed his own live stock (chickens I recall), above his acreage allotment. Found in violation of the Agricultural Adjustment Act of 1938, he was fined and ordered to destroy his crops. He appealed and the case eventually found its way to the USC.

The USC decided that wheat grown for personal use affected interstate commerce because it reduced the amount of wheat that would be bought on the national market. Farmer Roscoe Filburn's additional wheat production could be regulated by the federal government. I think the court was wrong, but it was their decision.

It isn't much of a stretch to envision that the USC might stretch the commerce clause to cover local private sales of firearms using "logic" much like they did in Wickard v. Filburn, since the production and commerce of firearms is regulated nationally.

I don't agree with this interpretation, but never the less the USC has in the past stretched the commerce clause all the way down to the individual at the local level.

 

[Martya]

Well stated ASA336.
This is the one that the government uses whenever it wants to 'intrude' into personal or local commerce. Name something that is not either imported into the US or transferred from one state to another. Nearly everything could be blamed as affecting some legality of interstate or international commerce, and thus needing 'controlled'.