Universal Background Checks

Political talking point of the moment. What does that phrase mean? Generally, it means that every
sale or transfer of a firearm of any sort would be prohibited unless both the seller and the buyer
submit information about the firearm and themselves to the federal government for approval of the
sale or transfer. This would include all private sales or transfers. All commercial sales or transfers
are already regulated.
Here is what is currently illegal under 18 U.S.C. 922(d):
(d) It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to
any person knowing or having reasonable cause to believe that such person-
(1) is under indictment for, or has been convicted in any court of, a crime punishable by
imprisonment for a term exceeding one year;
(2) is a fugitive from justice;
(3) is an unlawful user of or addicted to any controlled substance (as defined in section 102 of
the Controlled Substances Act (21 U.S.C. 802));
(4) has been adjudicated as a mental defective or has been committed to any mental institution;
(5) who, being an alien-
(A) is illegally or unlawfully in the United States; or
(B) except as provided in subsection (y)(2), has been admitted to the United States under a
nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(26)));
(6) who has been discharged from the Armed Forces under dishonorable conditions;
(7) who, having been a citizen of the United States, has renounced his citizenship;
(8) is subject to a court order that restrains such person from harassing, stalking, or threatening
an intimate partner of such person or child of such intimate partner or person, or engaging in
other conduct that would place an intimate partner in reasonable fear of bodily injury to the
partner or child, except that this paragraph shall only apply to a court order that-
(A) was issued after a hearing of which such person received actual notice, and at which
such person had the opportunity to participate; and
(B)
(i) includes a finding that such person represents a credible threat to the physical safety
of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical
force against such intimate partner or child that would reasonably be expected to
cause bodily injury; or
(9) has been convicted in any court of a misdemeanor crime of domestic violence.
This means that it is already a federal crime to sell or transfer a firearm to anyone that you know or
reasonably believe fits any of these nine categories. Who's left. People who you don't think fit into
any of these categories, such as your friends, neighbors and relatives.
In order to have effective enforcement of a universal (meaning all) background check system you
would have to have a national registry of every firearm in the country so you would be able to track
the history of a firearm if it were used in a crime at some point in the future. You could look up the
serial number and find out who owned it last, who owned it just before it was transferred to the
criminal and then find out if they went through a NICS background check when the transfer was
made. That is a national registry of firearms where the federal government, and thereby your local
police and sheriff department knows who owns every firearm in the country. That is an invasion of
privacy and prohibited by the 4th Amendment.
But can't Congress do it anyway? Probably. They pass a lot of unconstitutional laws.
Does Congress have any constitutional authority to pass such a law? The sale or transfer of firearms
between private citizens is a private matter. It is not a criminal act unless it violates 18 USC 922(d). It
involves no interstate commerce. Congress has no authority under Article I, Section 8 (enumerated
powers) to pass such legislation. They could argue that this transfer somehow involves interstate
commerce but that is nonsense. It is already a felony to sell or transfer to someone across state
lines. If no state lines are cross there is no interstate activity.
What else is unconstitutional about Universal Background Checks? They violate the 2nd
Amendment. Requiring someone to submit information to the federal government and prohibit
something from happening until the federal government gives its approval is a severe infringement
on the right to keep and bear arms without any interference from the federal government.
In addition, these restrictions would be a violation of the 5th and 14th Amendment that prohibits the
government from taking any action that deprives a citizen of the use and enjoyment of their private
property without Due Process. Due Process requires a judicial finding that a citizen is involved in
some sort of criminal act or violation of a constitutional law. That requirement is not met when two
law-abiding citizens decide to transfer their private property from one to the other. The 5th
Amendment Due Process applies to the federal government and the 14th Amendment applies to the
state governments.
Bottom line, while the phrase "UNIVERSAL background checks" sounds mighty pleasing to the big
government folks they are facially unconstitutional and should be universally rejected by freedom
loving Americans.