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FBI NICS Additions

First Dave Hardy talked about it over here.  Clayton Cramer doesn’t necessarily think it’s a bad thing.  David Codrea thinks it’s madness.  I agree with Clayton that the mentally ill are more likely to be stopped by background checks rather than criminals.   But is NICS constitutional?  Technically speaking, it’s a prior restraint on the exercise of a right.  If it were printing presses we were talking about, it wouldn’t be a constitutionally permissible law.

NICS exists because the vast majority of Americans think people should have to pass a background check to buy a firearm.  Even among gun owners, it’s rare to find people who argue that abolishing the instant check system is a worthwhile endeavor, but I have to admit I find Bruce’s commentary here telling:

If anything can be learned from the events that unfolded in Rochester this afternoon, it’s that more must be done at the federal level to prevent persons of questionable mental status from purchasing duct tape and road flares.

Or to paraphrase what I’ve heard from others: if someone can’t be trusted with a gun, they can’t be trusted with matches and gasoline either.  There are a lot of ways to cause mayhem and destruction for those who wish to do so.

I’ve said before that I consider NICS to be a minor infringement, and I’m not certain it’s worth burning political capital to eliminate it in the current political climate.  I wouldn’t underestimate the value it has in making the public feel good that the current laws are adequate.  But is it constitutional?  Is it a worthwhile restriction, aside from making people feel better about guns being legal?  Should we make getting rid of it a priority?   I’d love to hear people’s opinions in the commentary.

19 Responses to “FBI NICS Additions”

  1. Rustmeister says:

    In my fix-or-fight criteria, this does not fall into “fight”.

    There’s too many other things we can do first. Going after NICS would give the Brady Bunch all the ammunition they’d need to set us back decades.

    We’d do better going after the Hughes or Lautenberg amendments.

  2. Greg Morris says:

    Like most gun owners, NICS doesn’t bother me. But it is not set up to allow easy access to due process (to get off the list.) I’m also generally concerned that some “felony” convictions should really have no bearing on someone’s second amendment rights (i.e. non-violent offenses, or offenses that are not felonies in other states.) I don’t have a problem making it harder, although clearly not impossible, for many violent people to get guns. If it is constitutional to take away a felon’s right to vote, which I believe it is, then it is also constitutional to take away a felon’s right to own firearms.

    Higher on my priority list is abolishing poor local/city/state laws. Even in Florida, the laws are written so that an innocent mistake where nobody is harmed, such as accidentally revealing your concealed weapon, can land you in jail. In the state of Florida, you can’t really point a gun at someone unless you shoot them, otherwise the law works in their favor. I can name plenty more similar legal issues on the local level, and Florida isn’t even one of the bad states. Having a background check, while it is a waste of tax dollars, doesn’t cause problems like these.

  3. Sebastian says:

    If it is constitutional to take away a felon’s right to vote, which I believe it is, then it is also constitutional to take away a felon’s right to own firearms.

    I agree it’s constitutional to have someone’s rights taken away after due process, but strictly speaking, I don’t think there is a right to vote. Every expansion of voting rights has taken a constitutional amendment to impose on the states. If it were a pre-existing natural right, wouldn’t the 14th amendment have been sufficient?

  4. CTD says:

    I agree it’s constitutional to have someone’s rights taken away after due process, but strictly speaking, I don’t think there is a right to vote.

    You’re exactly correct. The Constitution does not affirm or protect any
    “right” to vote. This is precisely why some states are allowed to prevent felons from voting. Strictly speaking, the Constitution only prevents states from denying suffrage on certain specific bases, such as gender, race, etc. If my state wanted to deny suffrage to anyone who is, say, left-handed, there is currently nothing in the federal constitution that would preclude it.

    Re: NICS, I agree that it’s both unconstitutional and not worth fighting at this time. NICS placates a lot of hoplophobes who think it keeps guns “out of the wrong hands” and doesn’t cause me much burden. At the same time, it’s also completely useless. I very much doubt it’s ever really stopped a bad guy from getting a gun. It may have stopped someone from getting a legal at that particular place and time, but that doesn’t mean they didn’t get a gun.

  5. straightarrow says:

    It is unconstitutional and is worth fighting over. If someone can’t see that, then they are very young or naive and do not understand how we got here. It was each of these “little” concessions that weren’t worth fighting over, with ever moving goal posts and ever enlarging precedent, making each small step appear to be only a minor inconvenience. Question; How does a journey of a thousand miles begin?

    When one believes it is alright to sacrifice a little principle, he really has none. It then just becomes a matter of price.

  6. Sebastian says:

    Worth fighting over in what sense? You can tell Nancy Pelosi you hate NICS until you’re blue in the face, but I can promise you she has no reason to let a NICS repeal get onto the floor.

    Worth fighting in the courts? It might be worth fighting it in the courts, depending on how Heller turns out.

    Fighting in the court of public opinion? Having talked to people who aren’t hard core second amendment advocates about the issue, we have a long long way to go on that front. Most people are unconcerned about debating the constitutionality of background checks for gun purchases; they support them, and because they support them, and because they seem like a good idea, surely they are constitutional.

    The Brady Act is not ground to be conceded, but we got stuck with it because the politicians felt they could support it without paying a political penalty. Public opinion has shifted more in our favor in recent years, but I also think part of that is because once the background checks were in place, a lot of people came to the conclusion that was enough, and stopped voting on the gun issue.

  7. Alcibiades McZombie says:

    Background checks are not unconstitutional. They are perfectly satisfactory as long as the authorities don’t play any games.

  8. anon says:

    “Is the background check constitutional?” No.

    “Is it time for that battle?” No.

    “Is it a worthwhile restriction,” No.

    “aside from making people feel better about guns being legal?” Don’t underestimate the value of this! Sure we know NICS doesn’t do sh!t, but the vast majority of people believe otherwise. Even when confronted with the logical fallacy of it they persist in believing…

    A lot of stuff has to happen first. Mainly, lots of other laws and procedures need to be put in place to keep criminals, and the criminally insane, off the streets. Think along the lines of what gun control is: Gun Control seeks to keep guns out of the hands of people you know you can’t trust with a gun. (in their hearts, the Brady Bunch won’t accept that statement, but john Q public will) But if you KNOW you can’t trust some person with a gun, what is that person doing walking the streets to begin with? Until the public understands and accepts that second part, nothing will happen. That’s a pretty huge sea change that needs to happen first. And it might never happen, because it is fundamentally at odds with how the libtards think.

    If Heller/Parker succeeds, there are a lot of other things to tackle first. I would even be inclined to start with the small stuff first (other city bans, Lautenberg, ‘sporting use’, mag capacity, state ‘AW’ bans, – and then build on those precedents. Hughes would be very late in the process, NFA would be next to last, and the instant check would probably be last to go.

  9. There was a time when we didn’t need background checks for mental illness because most dangerously mentally ill people were hospitalized. Sometimes, the conditions were abominable (although One Flew Over the Cuckoo’s Nest is not a documentary). But now, we are in danger of having the whole society like a mental hospital: no guns, no sharp objects, no way to hurt yourself or others.

    Felons in 1791 weren’t specifically disarmed; instead, they were generally deprived of the right to breathe. Until the Revolution, there were 168 capital crimes in Pennsylvania, and 18th century newspapers are awash in accounts of people who were hanged for burglary. Depriving a convicted felon of gun ownership is a less severe punishment than depriving them of oxygen, so this is clearly constitutional.

    There is a legitimate argument about whether all felonies deserve gun prohibition. I agree that a number of felonies do not deserve this, and a fair number of them should also not be felonies, period.

    Until we can fix the problems of deinstitutionalization, we’re going to have to live with involuntary commitment (which is not just a matter of a psychiatrist calling you crazy) as a gun disability. The alternatives make the headlines with too much frequency.

  10. “Don’t underestimate the value of this! Sure we know NICS doesn’t do sh!t,”

    It does something. I wrote an article recently for Shotgun News about a copkiller in Florida who turned out to be buying guns (including an assault weapon) using a stolen identity. Why would he do that if:

    1. NICS doesn’t do any good.

    2. You can buy all this stuff, no questions asked, at any gun show?

  11. Sebastian says:

    I agree with Clayton that it does something, but it won’t stop a determined criminal from obtaining a firearm. At best I think its effect on crime is marginal, but I think we have better issues to target than the background checks. Whether we like it or not, and academic arguments about its constitutionality aside, the real value in NICS is in keeping most of the population comfortable with the idea of gun ownership being legal.

  12. Gregg says:

    I’m with StraightArrow on this, well, mostly.

    Yes, the NICS is unconstitutional. Yes, it should be dismantled. No, we shouldn’t worry about fighting it right now. The dismemberment of NICS should be added on as a rider to some innoccuous bill. Preferably something “for the children”.

    Clayton, I take issue with a lot of what you state. However, you fit into the current political climate better than I do. If a person is a threat, has repeatedly violated the rights of other people then they should be deprived of breath. If such a person were to target me or mine I would work very hard to deprive them of such. However, if a person is safe enough to allow them to live in society then the natural right to defend themselves should not be taken from them.

    In addition, there is no effective wya to get off the list if you are mistakenly added. Yes, yes I know that it is in the statutes that you can petition for redress, etc… However, that only works if funds are available. Since Congress, in its infinite wisdom, has declined to fund that process, well let’s just say you have the same chance of getting off the NICS list as you do of getting off the no-fly list. Another list where the appeals process in unfunded last I checked.

  13. “In addition, there is no effective wya to get off the list if you are mistakenly added. Yes, yes I know that it is in the statutes that you can petition for redress, etc… However, that only works if funds are available. Since Congress, in its infinite wisdom, has declined to fund that process, well let’s just say you have the same chance of getting off the NICS list as you do of getting off the no-fly list.”

    HR 2640 requires states to provide an appeal process for involuntary commitment, and also removes those who were improperly added to the list for PTSD during the Clinton Administration. I agree that it would be good to get Congress to fund the appeal process for removing disability (which from my understanding only applied to convicted felons–not those who are mentally incompetent). But in the meantime, about 95% of the psychotic are wandering the streets. We have news accounts with depressing regularity when some of those psychotics go on a rampage, for example, the guy who a few months back decided that he was the Emperor of Colorado, and went to the governor’s office to enforce his new status with a pistol. We have to do something to disarm such people.

  14. Sebastian says:

    for example, the guy who a few months back decided that he was the Emperor of Colorado, and went to the governor’s office to enforce his new status with a pistol. We have to do something to disarm such people.

    I do have to say, if you’re going to be crazy, you might as well do it with some style. Thinking you’re Emperor and trying to mount a coup fits that bill :)

  15. Wade Jensen says:

    On the issue of “…psychotics are wandering the streets.” there is an easy fix for this. To let a mental patient out on the streets, he has to have a sponsor-rather like a co-signer to a loan. If the mental patient commits a crime, he goes back to the institution, and the sponsor stands trial in the mental patients stead, and, if convicted, serves whatever sentence is imposed, or pays whatever fine. Of course, the sponsor would not have the advantage of claiming to be not responsible by reason of insanity. Would anyone like to sponsor Hannible Lector? We could do the same thing for paroling prisoners. Faced with such a stark choice, I think more people would take a more realistic approach. As it stands now, the advocates for mentally ill and prisoners can impose a huge cost on society, but do not have to pay a price for their actions.

    As far as NICS is concerned, no, it is not Constitutional. We need a well respected authority to write a well researched paper or two saying so. Not because it will change minds, or get the law overturned, but because it will begin establishing a history of saying so right from the beginning. The longer it remains largely unchallenged, the more the general public, and legal scholars, will view any later challenges as not legitimate. Then one day, when the time is right, a scholar can write a long paper, showing a long history of writings, and maybe, just maybe, this too will eventually be overturned. Or not, but we can at least limit the damage the NICS causes.

    Regards,

    Wade Jensen (PolyKahr)

  16. “I agree with Clayton that it does something, but it won’t stop a determined criminal from obtaining a firearm. At best I think its effect on crime is marginal, but I think we have better issues to target than the background checks.”

    There are two common errors made in the gun control debate. Our side assumes that the prohibited will not be deterred by gun control laws from obtaining guns. The other side assumes that gun control laws are powerfully effective in preventing or at least discouraging people from getting guns. The reality is a bit more complex. Some people will not be deterred by anything except door-to-door searches by SWAT and telescreens in every rooms; there are other people for whom even the complexity of waiting a couple of days to buy a gun may cause them to go find some other way to spend their money.

    For this reason, I wonder how marginal NICS really is in reducing crime. I agree that it does nothing to stop a determined criminal–but there are a fair number of people out there who are not determined criminals. They are people with long histories of alcohol and drug abuse, with felony convictions, for whom gun ownership is an expression of macho. If you put some roadblocks in their way, it will discourage some of them from owning a gun–especially because one of the first things that gets sold by people as their economic status drops is a gun.

  17. Sebastian says:

    You’d think in that case it would have had a noticeable effect on crime, but I’m no aware of any study that’s been able to show it has. It has created a straw purchasing problem, according to some data I’ve seen.

  18. straightarrow says:

    I don’t know where you people live, but I live at the least 45 minutes from law enforcement should I need them. And that is assuming they want to come. Some of you living in town would be surprised to know that your response times won’t be any better. So whether we like it or not, we live at risk inherent in a free society.

    Since we already live at that risk, I can see no justification for continuing to impinge on freedom and citizen rights, even were some of us of such pallor of courage to wish to exchange our citizenship for some lesser existence.

    I choose to live free and I do. I will continue to do so. I will obey the law when it does not abuse me of my rights. I will not obey it when it does. However, in our ever increasing stool pigeon, tattle-tale society where almost universally we seek to curry favor with those who seek to enslave us it becomes more difficult by the day to live and be left alone. To do no harm and to be not harmed, is becoming almost impossible because too many of us do not think there is a reason great enough to expend our energies when our rights are trespassed. We are horrified that our lives may actually be jeopardized if we speak too loudly or consistently when the rules of our nation are usurped for the purpose of making us more malleable and docile.

    Ergo, we find excuses that we couch in “reasonable language”.

  19. Ian Argent says:

    Fund the appeals processes first – that shouldn’t be hard to do politically. Getting rid of it is going to be extremely hard; probably harder than requiring ID for voting (and we all know how well that’s going).

    I’m more or less OK with a system that is a)Instant or as close to as possible and failure to return a result is is a go for sale, b)funded out of general revenue and has no fees for the users, c)has a clear and simple appeals process to get removed from the list, and d)does not retain buyers’ names and never records the firearm being purchased.

    IMHO, it’s just a simple precaution for the seller to do a background check on the buyer before selling. And I’d rather that the government be providing the service at a loss than a private company be doing so at a profit.

    NICS is *almost* there – it needs to fail positive instead of fail negative, have all the fees removed, and have the appeals process be simplified and fully-funded.

    Appeals process should require that the .gov prove beyond a reasonable doubt that the person denied is USAFE or PRHOBITED from owning a gun.

    (Chalk me up for less felonies, and not all felonies even then result in a forfeiture of rights).

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