Manditory Background Checks

[youngda9]

Guns.com has an article posted yesterday claiming that any form of manditory background check would be a violation of the 5th ammendment right against self incrimination.

The catch-22s surrounding universal background checks

A mandatory background check is potentially unconstitutional on another front as well: the Fifth Amendment, the prohibition against self-incrimination.

I'd like to hear some thoughts on this from a legal standpoint. I would think that the authors claim of having to give up your 5th amendment rights to exercise your 2nd amendment rights falls flat on its face since the Supreme Court said there are reasonable restrictions to gun ownership. I imagine it being argued that this is just another one of those. But I'm no Constitutional scholar.

 

[sarlakk]

Admittedly, I haven't had the time to read your link yet; but, on the surface of what you posted, I don't think it would hold up, as you generally aren't going to be arrested for failing a background check, in most normal situations.

 

[HoughMade]

Um...lawyer here- what statement or representation of fact is a person making that can be used against them when a background check is done?

I don't even understand why the privilege against self-incrimination would be implicated. Are they talking about certain questions on the 4473? What?

 

[youngda9]

Um...lawyer here- what statement or representation of fact is a person making that can be used against them when a background check is done?

I don't even understand why the privilege against self-incrimination would be implicated. Are they talking about certain questions on the 4473? What?

I was confused by this as well. I think what he is saying is that currently face to face transactions are allowed (no background check required). Requiring a background check for all transactions means that a prohibited person(felon?) would have to self incriminate themselves(5th ammendment) in order to obtain a firearm (2nd ammendment).

If that is the case then the person is already prohibited from owning a firearm so I don't get it. That's why I was asking for clarification.

 

[KW730]

I was confused by this as well. I think what he is saying is that currently face to face transactions are allowed (no background check required). Requiring a background check for all transactions means that a prohibited person(felon?) would have to self incriminate themselves(5th ammendment) in order to obtain a firearm (2nd ammendment).

If that is the case then the person is already prohibited from owning a firearm so I don't get it. That's why I was asking for clarification.

Seems like a massive reach that will never hold up. But what do I know.

 

[Indy60]

Looks like a reversal in the ol throw it at the wall and see what sticks. I am sure plenty of people with a history buy guns at gun shows and from FTF transactions on the streets. By not wanting a universal check I would think the person is trying to hide that fact. Invoking the fifth does not apply here.

 

[IndyDave1776]

I recall that the Fifth is the reason why when an improper person attempts to buy a gun, they cannot charge him but are limited to refusing the sale when he comes up dirty. In fact, back when, this was one of the bigger arguments against the existence of the 4473 is that it affected only those who follow the law.

 

[HoughMade]

I still don't understand. The right against self-incrimination is the right to refuse to give information that can be used to criminally prosecute you. I don't know what information that could be used to prosecute you is even at issue.

 

[Stschil]

I can't remember the case or I would cite it, but there was a SCOTUS case where a prohibited person was charged with failing to register a NFA firearm.
The Court ruled that since he would be incriminating himself by registering said firearm, he had the protection of the 5th and couldn't be charged with failing to register it. He was still charged and convicted for possessing it, though.

 

[KW730]

I still don't understand. The right against self-incrimination is the right to refuse to give information that can be used to criminally prosecute you. I don't know what information that could be used to prosecute you is even at issue.

I guess the question becomes, "Is it a crime for a prohibited person to attempt to purchase a firearm?"

 

[HoughMade]

That is an interesting question, but I don't see what it has to do with the right against self incrimination.

There's probably something simple I am missing, but what statement or representation of the potential buyer is at issue?

 

[KW730]

That is an interesting question, but I don't see what it has to do with the right against self incrimination.

There's probably something simple I am missing, but what statement or representation of the potential buyer is at issue?

If it is illegal to attempt to purchase a gun, I would think going through with a NCIC check while attempting to purchase that firearm would be incriminating yourself.

 

[tenring]

Haynes v. United States - Wikipedia, the free encyclopedia

 

[Lucas156]

Here is what confuses me. So if I buy a gun from a guy off INGO and then this universal background thing passes-how would the government know if I sold it to another guy without a background check even if he sells it at a later date to a person using the background check. Or if I bought a gun from a gun store and then sold it to someone without a background check and then they sold it to the next guy with a background check and the government finds out via the missing background check from me to him---Isn't that basically gun registration?

 

[KW730]

Here is what confuses me. So if I buy a gun from a guy off INGO and then this universal background thing passes-how would the government know if I sold it to another guy without a background check even if he sells it at a later date to a person using the background check. Or if I bought a gun from a gun store and then sold it to someone without a background check and then they sold it to the next guy with a background check and the government finds out via the missing background check from me to him---Isn't that basically gun registration?

The government wouldn't know. But that would make you a criminal.

 

[Bunnykid68]

The government wouldn't know. But that would make you a criminal.

It would make a lot of us criminals, oh well.