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Fri Oct 9, 2015, 09:36 AM

 

Why Lie When The Truth Is Better? The Background Check Lie.

Once again in the wake of a multiple victim tragedy politicians are clamoring to introduce a bill requiring "universal background checks". We once again have presidential candidates standing on high stating they will heroically pass universal background checks.

Just so we all understand, UBC used to be "gun show loophole"...how many times have you heard a politician promise to "close the gun show loophole"? Both terms define the only exemption in the Brady law requiring background checks on all firearms purchases. The only sales exempted from the National Instant Check System (NICS ) are sales between two people who live in the same state and the seller is not in the business of selling firearms. This exemption has always been a part of the federal mandate for firearms background checks.

Why? Why would this one very specific type of sale be exempted? The NRA?

Well, I suppose the NRA, but only to the extent that they can state they will challenge a UBC bill/law. They have likely been threatening they would challenge since the early 1990's when the federal background check was being written. Any threat of action has to be credible..in fact probable..or it can't sustain, the bluff will be called. In the absence of the NRA someone would atill challenge on the same grounds and it would still be overturned.

So why were private sales exempted? The one and only reason is because if the "commerce clause" which states,

Intrastate, or domestic, commerce is trade that occurs solely within the geographic borders of one state. As it does not move across state lines, intrastate commerce is subject to the exclusive control of the state.
http://legal-dictionary.thefreedictionary.com/Commerce+Clause

This is very simple. There will be no UBC mandate at the federal level...it cannot happen now for exactly the same reason it was originally exempted, and for the same reason ubc bills don't make it out of committee...because it would be overturned pretty quickly.

Why do politicians not simply tell the truth and look for solutions which are actually possible? Does Hillary and Bernie really not get this? Do they really think this will happen? I say they are posturing and pretending for the outraged and it allows them to strike the gun lobby of the Republican party.

Now I said the truth is better than the lie. By honestly stating that UBC must be a state imposed restriction and promising to fund and enable NICS for private sales the first step toward getting UBCs would be complete. As it is Colorado may have to suspend or repeal their requirement because there is no statutory access to NICS, and Colorado doesn't have a system in place of their own.

I believe nobody wants UBCs (except the public who actually try to believe their politicians)..especially big gun control who have used "gun show loophole" and "ubc" as a fund raising tool since their earliest days and cant financially survive after solving the issue...just a theory...

Bottom line is that if you want UBCs you should be working on your state. And....don't let your politicians play you. I would like to ask our candidates why they refuse to tell the truth about this....until they do it will be more of the same..nothing, private sales will remain exempted and we will have another 20 years of the same.

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Reply Why Lie When The Truth Is Better? The Background Check Lie. (Original post)
pipoman Oct 2015 OP
Human101948 Oct 2015 #1
pipoman Oct 2015 #2
Human101948 Oct 2015 #3
pipoman Oct 2015 #4
Human101948 Oct 2015 #5
pipoman Oct 2015 #6
Human101948 Oct 2015 #10
pipoman Oct 2015 #19
DanTex Oct 2015 #7
pipoman Oct 2015 #8
DanTex Oct 2015 #9
pipoman Oct 2015 #11
DanTex Oct 2015 #12
pipoman Oct 2015 #15
DanTex Oct 2015 #16
pipoman Oct 2015 #17
DanTex Oct 2015 #18
pipoman Oct 2015 #20
PoliticAverse Oct 2015 #13
pipoman Oct 2015 #14

Response to pipoman (Original post)

Fri Oct 9, 2015, 10:11 AM

1. There are some court cases that dispute your interpretation...

 

EXAMPLE: Frank operates a fireworks store in Southernstate. The fireworks he purchases from his suppliers are made entirely within Southernstate from materials found locally in the state. Despite the modern trend toward even the smallest of shop owners selling online across state lines, Frank sells only from his storefront. In other words, everything Frank does is intrastate. In an effort to end the increasingly heated price war among fireworks retailers, Congress passes a law establishing minimum prices for fireworks. Frank is fined for violating the law, and defends himself claiming the law exceeds Congress’ constitutional powers as the activity regulated is entirely intrastate.

What would be the result in the Frank’s Fireworks case above? The view taken by the Court today would be that Congress is fully within the bounds of the Commerce Clause.

There was a time, however, after Gibbons and the Shreveport Rate Cases, when the outcome would have been otherwise. In Schechter Poultry Corp. V. U.S.,295 U.S. 495 (1935) and Carter v. Carter Coal Co., 298 U.S. 238 (1936) the Court struck down acts of Congress refusing to find support in the Commerce Clause. In 1937, however, the Court decided NLRB v. Jones & Laughlin Steel Corp, 301 U.S. 1, and between 1937 and 1995 the Court did not strike down a single federal statute as exceeding the powers granted Congress in the Commerce Clause.

http://nationalparalegal.edu/conLawCrimProc_Public/CongressionalPowers/SubstantialEffect.asp

This would seem to be in direct contradiction of your conspiracy theory.

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Response to Human101948 (Reply #1)

Fri Oct 9, 2015, 10:44 AM

2. Frank is in the business of selling fireworks

 

And unless Frank is making the fireworks himself ordering them from out of state or country provides the interstate component necessary for federal regulation. Even if Frank is making them himself, if he is wholesaling them to others this would provide the interstate component needed.

The same is true for gun dealers in a state. Nobody is disputing federal jurisdiction in the regulation of people who are in the business of selling firearms.

We are talking about Jim, a resident of the state, purchasing some fireworks from Frank and taking them 20 miles back home. Jim's neighbor Ed wants some fireworks so Jim sells him a few packs. The state could prohibit Jim from selling them to Ed, the feds would have no jurisdiction.

What is your theory as to why this type of sale was exempted from day one, and remains exempt even with most of the public in favor of ubc's?

I am not a lawyer but have studied this for many years and have worked in our justice system for over 20 years.

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Response to pipoman (Reply #2)

Fri Oct 9, 2015, 11:11 AM

3. Study a bit harder...

 

The example says that there is no interstate commerce involved.

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Response to Human101948 (Reply #3)

Fri Oct 9, 2015, 11:16 AM

4. Unless you can answer the question your made up scenario is just that

 

And proves nothing....a pawn shop selling only used guns has no interstae component either, but they are "in the business of selling firearms" therefore are subject to federal regulation...again....

Why are private, intrastate sales of used firearms the only exempted class of weapons?

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Response to pipoman (Reply #4)

Fri Oct 9, 2015, 11:24 AM

5. I did not make up that scenario...the law journal did...

 

But this may give you an insight--

In congressional testimony after the school massacre in Columbine, Colo., in 1999, LaPierre said he supported instant background checks at gun shows. He now asserts that falsehoods about guns are driving the discussion on Capitol Hill.

Universal background checks that he described in 1999 as "reasonable" now constitute a "nightmare."

http://www.npr.org/sections/itsallpolitics/2013/01/30/170679024/lapierre-fights-to-stop-the-nightmare-of-background-checks

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Response to Human101948 (Reply #5)

Fri Oct 9, 2015, 11:30 AM

6. Did you answer the question?

 

Why are private, intrastate sales of used firearms the only exempted class of weapons? 

We have established that someone in the business of selling firearms (or firecrackers)...even only intrastate...are currently subject to federal regulation and someone who has too many firecrackers can sell them to their neighbor without federal jurisdiction.

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Response to pipoman (Reply #6)

Fri Oct 9, 2015, 11:51 AM

10. I guess I must be suffering from early onset dementia...

 

Thanks for alerting me!

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Response to Human101948 (Reply #10)

Fri Oct 9, 2015, 01:45 PM

19. Thats what I thought..

 

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Response to pipoman (Original post)

Fri Oct 9, 2015, 11:34 AM

7. One of the most preposterous NRA arguments around.

Of course the federal government can mandate universal background checks. The commerce clause has been read very broadly -- sure, Rand Paul would like to go back to the days where the federal government can't prevent restaurants from only serving white customers, but the court disagrees with him. All that needs to be demonstrated is that there is some effect on interstate commerce that merits the regulation. For example, the fact that lack of UBCs facilitates illegal trafficking in guns across state lines. Or the fact that the secondary market it guns affects the primary market. And so on. The court once even ruled that the federal government can regulate wheat that a farmer grows for his own personal consumption, UBCs will have no constitutional problems.

The gun control bill that failed after the Newtown shooting included UBCs. Nobody in their right mind thought it was unconstitutional, it failed for political reasons, plain and simple.

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Response to DanTex (Reply #7)

Fri Oct 9, 2015, 11:39 AM

8. I'll ask you the same question...

 

Why are private, intrastate sales of used firearms the only class of weapons exempted from background checks?

Oh, and direct me to the NRA page stating this.

 

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Response to pipoman (Reply #8)

Fri Oct 9, 2015, 11:46 AM

9. Because of the GOP and the gun lobby.

Another example is the NFA. Every NFA gun must be registered with the federal government. If you want to sell your NFA gun to your (private, in-state) neighbor, you have to get approval from the federal government,

I must have missed the Supreme Court case where NFA was overturned on commerce clause grounds. Perhaps you can point me to it.

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Response to DanTex (Reply #9)

Fri Oct 9, 2015, 11:58 AM

11. Apples and oranges

 

NFA registration is only required for firearms which are not "in common use for lawful purposes". It hasn't even a single thing to do with NICS. NFA is the answer to the proclamation that "all rights have limitations", NFA represents this.

Most republicans support private sale checks too.

I guess 20 years of failure just isn't enough for the gun control lobby.

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Response to pipoman (Reply #11)

Fri Oct 9, 2015, 12:02 PM

12. Umm, both are restrictions on interstate commerce, in fact NFA is far more restrictive.

Like I said, the commerce clause is read so broadly that the federal government can regulate a farmer's ability to grow wheat for personal consumption, based on the indirect effect that would have on a good that is traded interstate. This is why nobody in their right minds thinks there is any interstate commerce issue with background checks. Even the NRA doesn't bother trying to make this argument very often.

The reason that gun control has been blocked at every turn is because of the GOP and the power of the gun lobby. The same reason that a whole bunch of other things have been blocked, basically everything Obama has tried to do, the Republicans obstruct.

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Response to DanTex (Reply #12)

Fri Oct 9, 2015, 12:56 PM

15. Again, like 60% of Republicans want private sale checks..

 

The NRA won't pull back the curtain, they like their minions thinking this is about their all powerful hold on Washington.

The Brady groups have used "the gun show loophole" as a fund raising tool since 1994. When that became widely known as bullshit, they changed the name to "universal background checks" but continue lying about gun shows and Internet sales stating constantly that both are exempted from background checks even though that is a complete lie.

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Response to pipoman (Reply #15)

Fri Oct 9, 2015, 12:59 PM

16. But not the ones in congress. Therein lies the problem.

Most Republicans also want things like a higher minimum wage. But their elected officials are to the right of the people who voted for them. This isn't a new phenomenon, and it's certainly not unique to guns.

I get that you hate gun control activists like the Brady Campaign, but they are right about the need for universal background checks. What's in our way is the GOP and the gun lobby.

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Response to DanTex (Reply #16)

Fri Oct 9, 2015, 01:40 PM

17. I might have bought that 15 years ago..

 

It would explain short term resistance maybe.

It does not explain at least 10 years of over 50% approval in both parties for private sale background checks. Gun control advocates even state that most gun owners support private sale checks, a claim I suspect may be true.

We may even get a bill approved at some point. If so look for it to have a sunset clause of 10 years just like the federal assault weapons ban had. This will be portrayed by gun control orgainizations as a NRA requirement. The NRA will take the credit but wouldn't have required it.

Like the assault weapons bans, cases will wind their way through the courts arriving just in time for the 10 year sunset. If the cases are believed to be successful gun control will allow the law to sunset so as to not have a SCOTUS ruling in hopes of resurrection at a later date...exactly like the federal assault weapons ban. If the cases are projected to fail, gun control will lobby and campaign loudly to not allow the law to sunset.

I don't hate or even dislike gun control advocates. I do dislike people who tell demonstrable lies and pretend others are crazy when they point out the truth. Now the commerce clause theory is just that, there isn't any better, reasonable, or believable theory I have heard.

I would support background checks on private sales in my state if the feds enabled use of NICS so my state didn't have to reinvent the wheel to provide background checks at tremendous duplicate cost.

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Response to pipoman (Reply #17)

Fri Oct 9, 2015, 01:44 PM

18. It's not a question of "buying" it, there was recently a vote on UBCs, and the GOP

voted against them. And none of them cited any silly commerce clause grounds, they simply repeated the old NRA talking points about slippery slopes and rights and all that.

Elected officials are to the right of the people they represent. On a lot of issues, economically in particular, but also on guns. And it's been going on for a long time. There are studies about it. It's not a big secret.

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Response to DanTex (Reply #18)

Fri Oct 9, 2015, 08:37 PM

20. What rights do they claim apply to private sales which doesn't apply to buying from a gun store?

 

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Response to pipoman (Original post)

Fri Oct 9, 2015, 12:02 PM

13. Sorry but the "commerce clause" has been rendered meaningless by various Supreme Court decisions.

effectively.

For example see: Gonzales v. Raich (2005) ( https://en.wikipedia.org/wiki/Gonzales_v._Raich )
where the "commerce clause" was found to apply to someone growing marijuana at home for
their own use.

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Response to PoliticAverse (Reply #13)

Fri Oct 9, 2015, 12:18 PM

14. Gonzales only demonstrates that state law doesn't trump federal law...

 

If pot were legal at the federal level the commerce clause would have applied. Since pot is illegal at the federal level the commerce clause cannot protect it within a state.

In the case of firearms, they are completely legal to own at the federal level.

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