Posted on 09/17/2007 11:37:32 PM PDT by neverdem
If the NICS check comes back positive, he can't sell.
It means the customer is a prohibited person.
No. Attainder is a concept that existed in English common law prior to the Revolution. It means a felon has forfeited their rights by committing the crime. The legislature can then decide to expressly forbid them from exercising any act they used to have a right to before the crime. That's the justification for not allowing them to vote also, or hold some licenses also.
Any punishment, or condition applied by a court has nothing to do with attainder.
"That's way it once was, prior to IIRC the 1968 Gun Control Act, at the federal level."
Congress just decided to exercise it's authority to apply attainder. At that time, they also provided a remedy for the person to re-institute their rights. The recent Congresses failed to allow that, by expressly forbidding funds to go for that purpose.
"Many states' laws still reflect that a felon's rights are restored upon completion of his sentence."
Others don't and neither has Congress. No State has rejected attainder. Attainder requires an act of the legislature to apply it in any particular case. Some States provide for a remedy to restore firearm rights. Congress, including the R Congresses, forbid the ATF from acting on those State actions.
Also, the "instant" check may take 3 business days. The dealer can't sell until then. I've known one good shop go out of business because too many NICS checks took too long and the customers (reasonably) wouldn't make the trip back for the results (>100 mile drive for most).
It's a rare event that hte person is not.
"There are a LOT of people who are NOT prohibited, but do to confusion of information (similar name to known felon, etc.) their NICS check comes up as a false positive."
SSNs are used and any problems can be cleared up.
"The gov't would rather err on the side of more false positives than false negatives ... which is contra-Constitutional."
The IBC itself is not unconstituitonal.
"Also, the "instant" check may take 3 business days. I've known one good shop go out of business because too many NICS checks took too long and the customers (reasonably) wouldn't make the trip back for the results (>100 mile drive for most)."
It doesn't sound like his business had enough customers to keep him going.
Sounds like permission to me.
The commerce clause is in the main body of the Constitution. The second amendment is an amendment to that main body, and thus overrides it, when there is a conflict. That was the whole purpose of passing the bill of rights. In the words of the preamble to the Bill or Rights, "to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added".
Fine. The FFL will know the person is a prohibited person, and the transaction will not occur.
How will the FFL know the person is prohibited if they lie on the form, giving a different name or whatever and using fake ID? There will be no NICS record of person who doesn't exist, or does exist, is clean, but isn't the person purchasing the firearm.
Just like other gun laws, it only affects the law abiding, including the formerly non law abiding in this case, with the little twist that they can't be prosecuted for breaking that particular law. They can be prosecuted for "felon in possession, but that would be the case with or without the Brady check.
But he would have had it they didn't have to make multiple trips of many miles. One trip was worth whatever advantage he had over his competitors who were closer to the customers, but not two.
Of course that's another example of rules piled on other rules resulting in a stupid policy. Once the purchaser has presented himself and been verified as a "good guy", why should the dealer *not* be able to ship the firearm to the purchaser?
No one's rights to keep and bear arms are infringed by either licensing dealers, or by the IBC. Infringements are to be found elsewhere. THe 2nd Amend doesn't refer to commerce in arms, nor does it refer to enemies of the US, felons, and those judged a danger to themselves, or others due to mental defect. Gun bans, waiting periods, ect... are infringements.
"How will the FFL know the person is prohibited if they lie on the form, giving a different name or whatever and using fake ID?"
The FFL is responsible for checking the ID, especially the pic. The DOJ and the States are responsible for maintaining the dbase to include the occurrence of ID theft. Handling ID theft isn't difficult.
"There will be no NICS record of person who doesn't exist,"
Then the ID and SSN won't match.
"They can be prosecuted for "felon in possession, but that would be the case with or without the Brady check."
They won't be able to buy the gun. That's the purpose of the law, and that's a good thing. They should then go after the person for attempting to buy it.
"But he would have had it they didn't have to make multiple trips of many miles. "
No.
"Once the purchaser has presented himself and been verified as a "good guy", why should the dealer *not* be able to ship the firearm to the purchaser?"
I don't see a problem with faxing the original paperwork. Then it's all verified and signed again at pickup.
Art. 1, sec 9, Constitution for the United States: No Bill of Attainder or ex post facto Law shall be passed.
I'm afraid the Constitution overrides common law, English or Scottish.
Definition of "Bill of Attainder". A legislative act that singles out an individual or group for punishment without a trial.
Or if you don't like that source here's another, this time of attainder:
Merriam-Webster's Dictionary of Law -
Main Entry: at·tain·der
Pronunciation: &-'tAn-d&r
Function: noun
Etymology: Anglo-French atteinder, from ateindre to convict, sentence, literally, to reach, attain, ultimately from Latin attingere to reach, from ad to + tangere to touch
: the termination of the civil rights of a person upon a sentence of death or outlawry for treason or a felony , CORRUPTION OF BLOOD
NOTE: In English law up to the nineteenth century, attainder was the harsh consequence of conviction for treason or a felony. It resulted in the forfeiture of the convicted person's property. It also involved corruption of blood, which barred the person from inheriting, retaining, or passing title, rank, or property. A person outlawed lost the right to seek protection under the law.
Article III, Section 3 of the U.S. Constitution prohibits corruption of blood or forfeiture upon a conviction for treason “except during the life of the person attainted,” and Article I, Section 9 prohibits bills of attainder. Attainder was abolished in England in 1870.
In this case the "group" is felons who have served their sentences.
Are you going to argue that having your right to keep and bear arms removed is not "punishment"?
Bills of attainder, ex post facto laws, and laws impairing the obligations of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation. ... The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more-industrious and less-informed part of the community." James Madison, Federalist Number 44, 1788.
The NICS check can be a waiting period. PA stopped running their version for longer than that. Sounds like a waiting period, and as you say, an infringement.
No. Bill of attainder is not attainder. A bill of attainder is when the legislature singles out a person, or group of persons on any arbitrary grounds to pass a law against them. That in no way contains the concept of attainder. Also, those defs regarding attainder you gave, aren;t very good, because they define it according to some court, or legislature's act. Attainder is the loss of all rights when one is convicted of a felony. As I said, any penalty the court imposes, is not attainder. When the legislature passes an act that applies to a group of particular felons, or all felons, it is justified by attainder. Note the law would otherwise violate equal protection.
They've limited the wait to 3 business days, to give them time to look at the records. They're expected to have it fully computerized and instant ASAP. They're expected to have the answer ASAP. It's nothing more than an inconvenience, as happens in normal commerce when a CC check is stalled.
"PA stopped running their version for longer than that."
3 days.
I’d like a source for your definition of attainder. Words mean things, and the legal dictionary gave the definition I cited.
A space for the SSN is included on the form, but it is *not* required.
Check it out right at the ATF's own site. ATF Form 4473
Generally folks like to shop for the firearm in person, that may be one of the reasons they like that particular shop, customer service, good advice, etc.
So if only one trip was going to be made, it would have to be the shopping trip.
Not the "Complete the paperwork and pick up your firearm" trip. Shipping the firearm would actually be no different than a gunsmith shipping your own firearm back to you after it is repaired, which is allowed, assuming you paid in advance of the background check being returned. But that's too sensible for our "Civil Masters" in Congress.
Their intent was to shut it down for a full 4 days. . In the event, and with much pressure from arms rights and sportsmans groups, it was only shut down for 2 days.
But 2 days, 3 days, 4 days, or whatever the politicians and bureaucrats decide, it's still and infringement at the whim of government, which was likely the point they were trying to prove. It 's still a delay in the exercise of a right, supposedly protected by both the PA State, and US Constitutions.
"A right delayed is a right infringed", to paraphrase MLK, who said ""A right delayed is a right denied.". He in turn was paraphrasing William Gladstone, British politician (1809 - 1898) who said: "Justice delayed, is justice denied."
"shall not be infringed", which is the wording in the second amendment, is a much stricter standard than would be the "shall not be denied" that you seem to think the second amendment says or means.
I don't have time to find one. If you're interested, there's probably a good background on the concept connected to the loss of a felons right to vote.
"Shipping the firearm would actually be no different than a gunsmith shipping your own firearm back to you after it is repaired,"
A background check must be done to get the gun back from the gunsmith. I have no problem with making things convenient.
""A right delayed is a right infringed", to paraphrase MLK, who said ""A right delayed is a right denied."
A minor inconvenience does not amount to an infringed right. Only the Pepsi generation sees it that way. The IBC is not an infringement of the right to keep and bear arms. All you've brought up are minor inconveniences, which are not infringements. The intent is to keep dangerous people from buying guns in the legitimate market. To that end, the IBC is near 100% effective. I don't consider minor inconveniences to be infringements on my rights. I consider bans, prohibitions, permit and licensing schemes, ect as infringements. The fact that a prohibited person can't buy guns in the legitimate market far outweighs any inconvenience the IBC causes IMO and it leaves the grabbers w/o legitimate complaint.
“Rare”? Care to (A) give some stats on that, and (B) explain since when does suppression of Constitutional rights depend on how many people suffer?
Some of the false positives come from the SSN being similar (but not exact). A week or so ago someone on FR was complaining about suffering from that.
And the business in question was the most popular in the region. It just was far enough into the boonies, and the NICS delays frequent enough, that people didn’t want to drive 100 miles a second time just to pick up something they should have been able to pick up the first time.
You’re awfuly defensive of something that restricts the law-abiding from lawfully buying lawful products. Why?
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