Gun Show "loop-hole" and the 10th Amendment

[gitano]

The 10th amendment to the US Constitution states:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The so-called "gun show loop-hole" is actually simply the adherence to the constructs of the 10th amendment. Fundamentally, any COMMERCIAL transaction - like buying/selling a firearm - that occurs within the borders of a state between state residents CAN NOT be constrained by federal law. IN FACT, it is a violation of the 10th amendment to require ANY business at ANY time to do a "background check" WITH THE FEDERAL GOVERNMENT as a condition of COMMERCE conducted within state boundaries.

So, if it is a violation of the 10 amendment to require WalMart to conduct a back-ground check with the BATFE before they sell ANY firearm, how does the federal government "get away" with requiring it? Simple: They have the businesses by the "short hair". Let me explain.

In order for WalMart in Wasilla, Alaska to sell firearms, they must first purchase them at wholesale from some manufacturer. There are no firearms manufacturers in the state of Alaska, therefore WalMart MUST engage in "interstate commerce". Interstate commerce IS the purview of the federal government, and it is wholly within the constitution to regulate that activity. Therefore they REQUIRE WalMart to HAVE a FEDERAL firearms license, AND that WalMart MUST purchase their firearms from a business LICENSED to conduct business ACROSS STATE LINES. That is consistent with the constitution.

HOWEVER, once that firearm is OWNED by WalMart, and they want to sell it WITHIN the borders of Alaska to an Alaskan resident, THE FEDERAL GOVERNMENT HAS NO AUTHORITY UNDER THE 10th AMENDMENT TO CONSTRAIN THAT SALE. THEY DO IT ANYWAY!

"Yeah but, how do they get away with it?" you ask. Very simply. Threat. The federal government has violated the constitution simply by fiat. ("I said it, therefore it is so.")

If I am WalMart, I COULD say to the US Treasury Department, (the federal LICENSING agency that issues the LICENSE that ALLOWS me to conduct INTERSTATE business), "You're wrong. I am NOT going to require a "background" check for sales of firearms." THEY would then say: 1) We are revoking your federal firearms license AND your federal business license, AND 2) we are going to prosecute you in federal court for a FELONY. There are THOUSANDS of federal fascist prosecutors  that would sell their children into slavery for the "opportunity" to make a "name" for themselves in American history by prosecuting such a case.

Knowing that they are "right" under the constitution, WalMart COULD legally "fight" the matter ALL THE WAY to the US Supreme Court. Odds are VERY HIGH - almost 100% - that they would WIN. HOWEVER, it would take AT LEAST 10 years and MILLIONS of dollars to make that fight AND THEY WOULD BE OUT OF BUSINESS FOR THAT WHOLE TIME!

So what's the GOOD news about "closing" the so-called "gun show loop-hole" that the gun-banners scream so shrilly about? Exactly this:

There are MILLIONS of firearms transfers at gun shows in the US every year BETWEEN PEOPLE THAT DON'T HAVE A FEDERAL BUSINESS LICENSE TO LOSE. Only ONE of those people have to be unconstitutionally  FEDERALLY prosecuted to get this WHOLE issue of the violation of the 10th amendment to the Supreme Court. That individual won't "lose his license" or his "business", because he has no license or business to lose. He won't go to jail because he will be taking the case to the Supreme Court.

The net result is that ALL background checks with the exception of INTERSTATE transfers, could be, AND SHOULD BE, struck down as a violation of the 10th Amendment to the US Constitution.

For those that will, of course, argue that background checks are "good", there are other alternatives to violating a key part of the US Constitution's Bill of Rights to retail that "good". Very simply, each STATE  can make a "background check" a requirement of a STATE firearms license. I'm not particularly "happy" about that, but I could "live with" it, AS LONG AS the federal government CAN NOT EVER, UNdER ANY CIRCUMSTANCES, have access to those STATE records, AND those records have to be DESTROYED within 24 hours of the "approval" of the sale.

Outside of a fundamental disapproval of ANY violation of the constitution, background checks are the 'thorn in my side'. Gun "registration" IS. It is widely BELIEVED that we do not have "gun registration" in this country. THAT IS FALSE. What we have is a kind of gun registration that the federal fascists can CLAIM they have no "control" over. THAT IS A BALD-FACED LIE. EVERY federal firearms licensee - and that INCLUDES those of us with licenses to collect "Curios and Relics" - MUST, UNDER THE LAW, keep a "book" that records information about EVERY transaction we conduct. Part of that information is the person's NAME, and ADDRESS, and a description of the firearm INCLUDING SERIAL NUMBER.

So, it is LEGALLY "true" that the federal government doesn't "keep" records of who owns what guns. However, it is REALLY true that as a condition of the use of my federal firearms license, I MUST MAINTAIN, the "book", and more importantly, I have to PROVIDE THAT BOOK TO ANY FEDERAL AGENT UPON THEIR REQUEST. If I fail to do that I WILL lose my license AND I WILL be prosecuted. For Curio and Relic licensees, the jack-booted thugs do not have the right to come to my house to look at my "books", and I can designate when and where we meet for them to 'examine' my "book". Those with 01 FFLs - the license to "do business" buying and selling firearms - are required UNDER THE LAW to allow federal agents to 1) examine their "book" ANY time of day or night, 2) without notice, and 3) search the premises of the business ANY TIME DAY OR NIGHT WITHOUT WARRANT. That is precisely why I do NOT have an 01 FFL.

"So what" the compromisers will say. I'll tell you EXACTLY "what". Whenever there is a shooting, how the dickens do you think "they" find out WHERE the shooter got the gun. How do you think they know what store sold it to him? How do they find out where he lives? Clearly, I HOPE, you can see that the US MOST DEFINITELY DOES have "gun registration". The fascist sons of bachelors just flat out lie about it.

THEREFORE, if this whole "gun show loop-hole" baloney blows up for the violation of the 10th amendment THAT IT IS, what else will "fall" with the realization of that violation will be gun REGISTRATION that is all too REAL.

So...

The socialist gun-banners do in fact have something to lose if they get too kocky in their Hollywood/Press hyped frenzy. My attitude is "Come on. If you're feelin' froggy, leap."

Paul

[Jamie.270]

CBS news had a segment on last night about how the ATF (BATFE) traces guns.
It can be viewed here:
http://www.cbsnews.com/8301-18563_162-57566788/tracing-guns-is-low-tech-operation-for-atf/

It basically decries the "archaic" way the ATF is "forced" to use old hand written books and microfiche to discover who the original purchaser of a given firearm was/is.
So despite the 1986 Firearm Owners Protection Act (FOPA) that expressly forbid the feds from building and maintaining a firearm/owner database (de-facto registration), they are doing it anyway.
And complaining through the press that it's cumbersome and time consuming, and inefficient.

Breaking the law(s) of the land in plain sight of the citizenry.
With the media's tacit approval.

That's our DOJ, and the political climate in which we must survive.

Best of luck fellow Americans.
We'd best hang together, lest we hang,....

[22hornet]

There are THOUSANDS of federal fascist prosecutors that would sell their children into slavery for the "opportunity" to make a "name" for themselves in American history by prosecuting such a case.
 
Knowing that they are "right" under the constitution, WalMart COULD legally "fight" the matter ALL THE WAY to the US Supreme Court. Odds are VERY HIGH - almost 100% - that they would WIN. HOWEVER, it would take AT LEAST 10 years and MILLIONS of dollars to make that fight AND THEY WOULD BE OUT OF BUSINESS FOR THAT WHOLE TIME!
 
Paul

You are dead set right on both counts Paul.

The second point about putting up the fight. That is exactly what governments and big business bank on. "Want to take us on? Go your hardest, but it will cost you more than it will cost us! :angry: "

[RatherBHuntin]

And lets not forget, all those form 4473s we fill out when we get a gun at our local gun shops, that they are required to keep.  When any FFL holder, or any type, goes out of business they must surrender those form 4473 to the BATF along with their books.  So those records which are never to be used to create a database are being held at the ATF, and I'm SURE they aren't doing anything with them...you know just holding on to them for safekeeping.  Odds are pretty dang good their is a monkey in the basement scanning them into a database and using a scanner and recognition software to build a pretty good list.

[gitano]

One of the "big lies" is that the US doesn't have firearms "registration". BALONEY! "The Book" that EVERY FFL is required to keep is a permanent record of every firearms transaction that the federal firearms licensee has conducted, and RBH is precisely correct when he states that "The Book", and all other records MUST be surrendered when the FFL relinquishes their license. That is a RECORD that the FEDERAL GOVERNMENT MANDATES BE KEPT ON WHO BOUGHT WHAT FIREARM. The only difference in that and "registration", is that I don't have to TELL the government when I buy a gun from a private individual.

We live in a fascist country. Nobody likes to hear that, and I certainly don't LIKE to say it, but denying it does not change THE FACTS.

Paul