Gun Control

Should a 'Potential Criminal Background' Override the Second Amendment?

Broad police discretion over who may own and carry guns seems blatantly unconstitutional.

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Wikipedia

A New York Times story about state laws loosening restrictions on carrying guns in public quotes Ladd Everitt, spokesman for the Coalition to Stop Gun Violence, who as you might expect does not approve. "What is alarming to the police," he says, "is that they have no power to ascertain the potential criminal background of an armed individual until a crime is committed, and by then it is too late."

That quote directly follows a reference to laws that "eliminate the police's role in issuing permits or questioning people who are openly armed," and it's not clear which change Everitt had in mind. But the phrase "potential criminal background" nicely captures the factors that police can consider when they have broad discretion over who may own or carry guns.

A person's actual criminal background is already a factor in determining who is allowed to own firearms under federal law: Anyone with a felony conviction, even for a nonviolent offense, is disqualified, and so is anyone with a misdemeanor conviction involving domestic violence. By contrast, a person's potential criminal background is a law enforcement official's subjective assessment of his propensity to commit crimes. As far as gun controllers are concerned, it is reckless not to trust police with the discretion to stop possibly dangerous people from arming themselves. After all, once a gun owner actually commits a crime, "it is too late."

This precautionary approach makes perfect sense, as long as you see no practical value in allowing law-abiding citizens to carry guns and no constitutional value in respecting the Second Amendment right to keep and bear arms. The same attitude underlies New York City's gun control laws, which require residents to beg permission not only to carry firearms in public but even to keep them at home or work. A few weeks ago, I noted the arrest of Alex Lichtenstein, a Brooklyn fixer who allegedly helped expedite his clients' pistol permit applications by paying off the cops charged with deciding which New Yorkers deserve to exercise their Second Amendment rights. This week the New York Daily News reported that the NYPD has been seizing guns from Lichtenstein's customers—not because they are dangerous or legally disqualified from owning firearms but simply because they did not undergo the department's "full review," which often takes more than a year and goes well beyond the requirements of federal law.

Aside from rejecting outright bans on handguns, the Supreme Court has not addressed the question of how burdensome firearm regulations can be without violating the Second Amendment. Its answer will depend on who replaces Antonin Scalia on the Court, which will in turn depend on who wins this fall's presidential election. But it is hard to think of any other constitutional right that can be exercised only after a long review by government officials based on imponderables such as the supplicant's future crimes.

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  1. *Seems*?

    tedr – too early, didn’t read

  2. , the Supreme Court has not addressed the question of how burdensome firearm regulations can be without violating the Second Amendment

    “Shall not be infringed” really doesn’t allow any burden for law-abiding citizens, does it? Of course we would actually need honest justices for that.

    1. If government can stop a person from growing wheat for their own use there is no limit on it’s power.As for guns,the hildabeast will get right on that.

      1. Fair point. By not buying a gun, you are participating in the market for guns. So the government can force you to buy broccoli. So sayeth the Kagan.

        I’m surprised they haven’t gone the ammunition route. They’ve tried to burden gun stores by scaring away banks, but going after ammunition distributors and manufacturers would pretty much squash the law-abiding citizen’s access to ammo.

        Sure, a black market would spring up overnight, but only criminals would buy that stuff. So 99% of guns would eventually become paperweights.

        1. They’ve tried. No notable success, so far, but California is about to pass a law requiring background checks for ammo purchases, and proscribing online and mail-order sales.

        2. I don’t know that “only criminals” would buy homemade ammo. Every serious competitor in the shooting sports makes his own loads. My local gun store sells reloads. I’ve shot reloads in handgun competitions myself; if you (or the person doing the reloading) knows what he’s doing the loads are actually better since they can be tailored to your exact needs.

          1. If you get sleepy or reload in a hurry because you want to make it to the range before it gets crowded, then you could make a fatal mistake.

            Making it harder to buy factory ammo will increase the number of gun injuries.

      2. Stock up now. When hildy is pres, the first and second amendments are GONE…

  3. A few weeks ago, I noted the arrest of Alex Lichtenstein, a Brooklyn fixer who allegedly helped expedite his clients’ pistol permit applications by paying off the cops charged with deciding which New Yorkers deserve to exercise their Second Amendment rights. This week the New York Daily News reported that the NYPD has been seizing guns from Lichtenstein’s customers?not because they are dangerous or legally disqualified from owning firearms but simply because they did not undergo the department’s “full review,” which often takes more than a year and goes well beyond the requirements of federal law.

    Any charges for the cops who took the bribes?

    Haaaaaaaaaaa ha ha ha ha ha ha ha!

    I’ll be here all week.

  4. “What is alarming to the police,” he says, “is that they have no power to ascertain the potential criminal background of an armed individual until a crime is committed, and by then it is too late.”

    W.T.F?

    Even *I* have that power: EVERYONE has a potential criminal background!

    But, to answer the titular inquiry: No. Next question.

    1. Exactly. That is their whole point. Piers Morgan let the mask slip when he said that Adam Lanza was a perfectly law-abiding citizen up until the moment he murdered his mother.

      In the left’s eyes, we are ALL potential Adam Lanzas.

      “This precautionary approach makes perfect sense”….if you wish to strip the sheep of every constitutional right they have and institute a totalitarian society.

    2. I would think potential criminal background could be attributed to most of Congress! Even if there was no actual misconduct, the potential has been and always will continue to be there!

  5. “What is alarming to the police,” he says, “is that they have no power to ascertain the potential criminal background of an armed individual until a crime is committed, and by then it is too late.”

    And how are they supposed to ascertain the potential criminal background of an armed individual outside the already clearly established criteria? You’re poor, non-caucasian and live in a statistically violent area, so no second amendment for you? Or is it simply “we don’t like the cut of your jib”? The ‘potential’ seems a touch arbitrary, yes?

    1. And how are they supposed to ascertain the potential criminal background of an armed individual outside the already clearly established criteria?

      They can’t. Which means they will deny anyone who isn’t a friend or relative of someone on the police force or local government.

      1. They can’t. Which means they will deny anyone who isn’t a friend or relative of someone on the police force or local government.

        And you have pretty much described New Jersey’s system for issuing carry permits.

      2. Ah, so good old-fashioned nepotism. Sounds about right.

    2. That’s why we need the Precogs.

    3. Proggies are naive little buggers, who seem to think just passing a law will solve the problem, regardless of how well written it is, what the problem really is, etc.

      They remind me a lot of Kaiser Wilhelm II, who, I gather, didn’t think he was a god, but did think that because God made him the Kaiser, God would not let him make a bad decision. So he never needed to think things through or seek advice, just make decisions, and God would ensure they were the right decisions.

  6. Why does criminal background matter? Cops seem to have a shoot on sight policy if they seem someone with a firearm regardless. They never even ask if a law has been broken at the time let alone if the individual has a record.

  7. A New York Times story about state laws loosening restrictions on carrying guns in public quotes Ladd Everitt, spokesman for the Coalition to Stop Gun Violence, who as you might expect does not approve. “What is alarming to the police,” he says, “is that they have no power to ascertain the potential criminal background of an armed individual until a crime is committed, and by then it is too late.”

    I don’t think that the anti-gunner was referring to the police assessing one’s future criminal prospects before issuing the permit; I think where he was going was the common anti-gun argument that under strict gun control laws the cops can just arrest anybody they see with a gun under the assumption that of course he’s a criminal. Whereas if private citizens can legally carry guns in public the cops can’t just assume that. To an anti-gunner that’s way more important than the fact that an unarmed person would lose his life to a violent criminal because he’s defenseless; individuals don’t mean shit to collectivist assholes.

  8. No. Next question?

  9. The TRUTH about the “supremacy clause” – our Constitution does not delegate to the national government authority to restrict our arms, ammunition, regulate firearms dealers, do background checks, etc. The national government may not lawfully circumvent this restriction by means of a treaty wherein the signatory governments agree to disarm their Citizens or Subjects. https://publiushuldah.wordpress.com/ ?/treaty-making-powers?/
    If Acts of Congress are not authorized by the Constitution, the acts are mere usurpations and must be treated as such. See: https://publiushuldah.wordpress.com/ ?/nullification-smacki?/
    The Supreme Court’s opinion in the homosexual marriage cases was a grotesque usurpation of powers not delegated. https://publiushuldah.wordpress.com/ ?/searching-for-marria?/ And the opinion of these FIVE (5) morally degenerate lawyers is not “law” in any sense of the word. Only Congress is authorized to make “law” (Art. I, Sec. 1).
    https://publiushuldah.wordpress.com/ 2015/09/06/the-truth-about-the-supremacy-clause/

  10. This is a slight variation on the infamous “Precautionary Principle”, which says that governments should not permit some activities if they have some evidence that there could be adverse consequences, until it has been demonstrated that the adverse consequences will not occur.

    Just think about how this could be applied to all sorts of human behavior, and you see the “progressive” mindset in its full glory.

  11. Be most careful with the grating of “broad discretion”, for it is all to often abused, the broader it is, the more likely to be abused.

  12. By the way, re discretion abused, the existing situation in NYC, where I grew up and lived for many years is a prime example of discretion unwisely granted, an subsequently abused to hell and gone.

  13. If you make someone responsible for a decision, as when blaming someone for not denying a permit to someone who then does something bad, you have to expect them to realize that their safest option is to always make the same decision — the one with no risk — as when all permits are denied.

    This is why a permit system will never work. Ultimately, each user of a weapon has to be held responsible for their OWN actions, not someone else.

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