A Lame Duck Country?

thomas-sowell

Thomas Sowell

Thomas Sowell is one of my favorite columnists. From Wikipedia:

Thomas Sowell (/soʊl/; born June 30, 1930) is an American economist, social theorist, political philosopher and author.

He is currently Senior Fellow at the Hoover Institution, Stanford University. Sowell was born in North Carolina, but grew up in Harlem, New York. He dropped out of high school and served in the United States Marine Corps during the Korean War. He received a bachelor’s degree from Harvard University in 1958 and a master’s degree from Columbia University in 1959. In 1968, he earned his Doctorate in Economics from the University of Chicago.

Sowell has served on the faculties of several universities, including Cornell University and University of California, Los Angeles. He has also worked for think tanks such as the Urban Institute. Since 1980, he has worked at the Hoover Institution at Stanford University. He writes from a conservative and libertarian perspective, advocating free market economics and has written more than thirty books. He is a National Humanities Medal winner.

I recommend checking out his articles on Townall.com. They are always worth a read and relevant to current events. Today’s article is:

A Lame Duck Country?

Quoting:

The Constitution cannot protect our rights if we do not protect the Constitution. Freedom is not free, and the Constitution is just some words on paper if we do not do anything to those who violate it.

And:

The most important thing the voters can do is vote against anyone who violates the Constitution. When someone who has violated the Constitution repeatedly gets re-elected, then the voters are accomplices in the erosion of protection for their own freedom.

If you read this page, you really ought to read the whole article here.

Another great American once said:

Freedom is never more than one generation away from extinction. We didn’t pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same, or one day we will spend our sunset years telling our children and our children’s children what it was once like in the United States where men were free. -President Ronald Reagan

 

 

Posted in 2nd Amendment, Blacks, Democrats, Libertarian, Obama, Politics, Republican Party, Republicans, Tea Party, Uncategorized | Leave a comment

You Are A Criminal

In the movie “Atlas Shrugged II, The Strike,” the screen adaptation of the book “Atlas Shrugged” by Ayn Rand, one of the villains, Dr. Floyd Ferris, explains things to Hank Rearden who is one of the heroes of the movie:

Dr. Floyd Ferris

Dr. Floyd Ferris

Did you really think we want those laws observed?” said Dr. Ferris. “We want them to be broken. You’d better get it straight that it’s not a bunch of boy scouts you’re up against… We’re after power and we mean it… There’s no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What’s there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced or objectively interpreted – and you create a nation of law-breakers – and then you cash in on guilt. Now that’s the system, Mr. Rearden, that’s the game, and once you understand it, you’ll be much easier to deal with.”

In non-fiction article “The Nature of Government” Ayn Rand describes where the United States is headed (and many would say, has arrived):

We are fast approaching the stage of the ultimate inversion: the stage where the government is free to do anything it pleases, while the citizens may act only by permission; which is the stage of the darkest periods of human history, the stage of rule by brute force.

She of course was referring to one of the original concepts of the Founders of the United States, the idea that government could only do what it is permitted and an individual could do whatever he or she wanted as long as it was not not prohibited. Indeed that principle has been nearly inverted where government can find a justification for about any action it wants. The President can ignore the laws passed by the Congress or amend them by fiat Executive Order, as for example, as President Obama has repeatedly amended the implementation of the Patient Protection and Affordable Care Act (aka “Obamacare“) for purely partisan political purposes.

Quoting from “How Many Federal Laws Are There?

In an example of a failed attempt to tally up the number of laws on a specific subject area, in 1982 the Justice Department tried to determine the total number of criminal laws. In a project that lasted two years, the Department compiled a list of approximately 3,000 criminal offenses. This effort, headed by Ronald Gainer, a Justice Department official, is considered the most exhaustive attempt to count the number of federal criminal laws. In aWall Street Journal article about this project, “this effort came as part of a long and ultimately failed campaign to persuade Congress to revise the criminal code, which by the 1980s was scattered among 50 titles and 23,000 pages of federal law.” Or as Mr. Gainer characterized this fruitless project: “[y]ou will have died and [been] resurrected three times,” and still not have an answer to this question.

According to the article How many pages are in the Affordable Care Act?:

So… how many “pages” are in the Affordable Care Act? In the actual legislation itself, there are just over 2,400. But the legislation is incomplete with the accompanying regulations, most of which have yet to be published.

Paul Bedard, a journalist with U.S. News, reported in April 2011 that the first set of HHS regulations covered six pages of the actual legislation—but resulted in 429 pages of regulations.

I was curious to see what that would mean for the totality of the health care legislation if I applied a ratio of 71.5:1 to the Affordable Care Act.

The result?

More than 170,000 pages.

No, that’s not a typo. It really is a six figure total. By comparison, the U.S. tax code by my calculations is approximately 13,000 pages.

The Code of Federal Regulations (CFR):

…is the codification of the general and permanent rules and regulations (sometimes called administrative law) published in the Federal Register by the executive departments and agencies of the federal government of the United States. The CFR is divided into 50 titles that represent broad areas subject to federal regulation. … Under the delegation doctrine, federal agencies are authorized to promulgate regulations (rulemaking) by so-called enabling legislation. –Wikipedia

The CFR is comprised of 50 volumes. Under President Obama alone it has increased by over 11,000 pages. In 1975 it took 71,000 pages to publish the CFR. (see this article on cnsnews.com)

… there is a very high probably that you are a criminal.

It is not humanely possible in many instances to know if you are following the law or not.  Given the sheer volume of Federal law and Federal regulations there is a very high probably that you are a criminal.

See this article Wyoming welder faces $75,000 a day in EPA fines for building pond on his propertyEven if Congress did nothing at all the sprawling bureaucracy will continue to create reams of pages that in effect become law and if you run afoul of any of those laws it will be the government that will have the masses of lawyers to prove you broke the law.

Welcome to the Brave New World.

In a world where the government aims to be your caretaker it will most certainly be  your master. The days of government “by and for the people” are quickly ending. Soon it will the “government by the government for the government.”

If we want something different we have to educate ourselves and put our allegiance to those political movements aimed at small and limited government. I leave it to you to figure out who those are. Just one clue – it is neither the mainline Republicans or Democrats.

teapary

Posted in Democrats, Libertarian, Obama, Obamacare, Politics, Republican Party, Republicans, Tea Party | Leave a comment

Universal Background Checks

Universal background checks for gun sales could be done in a way that many gunowners could support.

Universal background checks for gun sales could be done in a way that many gunowners could support.

Much has been said recently about the desirability of having background checks before people can buy a firearm, either through a licensed dealer or from a private individual. Reasonable people do have valid concerns about firearms falling into the hands of criminals and the mentally insane. But many reasonable people also have valid concerns about government overreach and they have the examples of the U.K. and Australia where mounting regulations, registration, and requirements for firearms purchases eventually led to bans and confiscation.

Is there a way to satisfy both demands? Is there a way to potentially satisfy the rational concern about unfit people legally purchasing firearms and the equally rational concern about government abuse of a Constitutional right “to keep and bear arms”?

There is.

Not all people will be totally satisfied but perhaps a majority can feel that not only are they doing something about gun violence, they are also not giving even more power to government.  That government through the NSA has already shown little respect for individual privacy. That government through the IRS has shown a blatant willingness to inject political favoritism in the denying or delaying tax-exempt status to un-favored Conservative and Tea Party organizations.

So how could we accomplish this and meet both demands of safety and not growing government? How about universal background checks? Create a system where everyone gets a background check whether or not they ever plan to buy a firearm. Encode the result on the driver’s license or state id.

Driver's license with added notation that a person is not disqualified to exercise the 2nd Amendment.

Back of driver’s license with added notation that a person is not disqualified to exercise the 2nd Amendment.

On the front of my Texas driver’s license there is a line that says: “Restrictions A.” If you flip the license over that restriction is explained as “With corrective lenses”.” I have to wear glasses in order to drive a car legally in the state of Texas.

Currently we have the National Instant Criminal Background Check System (NICS). This system came from the Brady Handgun Violence Prevention Act of 1993 and has been run by the FBI since 1998. If you attempt to buy a firearm from a dealer with a Federal Firearms License (FFL) that dealer must get permission from NICS to complete the sale. To be in the business of selling firearms you must have an FFL.

The purpose of NICS is to determine if there are any records that indicate an individual is not legally qualified to purchase a firearm, for example, a record of a felony conviction or involuntary commitment to a mental institution. The states are largely responsible for providing information to NICS.

NICS is far from perfect and some people with common names often have to wait several days for approval. However it has worked far better than most critics expected when it was put in place.

My suggestion is that we could streamline and improve NICS so that it could deal with universal checks.  Each time a state DMV issued a driver’s license (or state ID) it would query NICS.  When it issued the license there would be some sort of code on the license that indicated that a person was not legally prohibited from purchasing a firearm.  Obviously that code and status could be easily changed if a person’s status changed, for example, if they were convicted of a felony.

With this system when a person went into a store and wanted to purchase a firearm all they would have to do is show their driver’s license or ID.  There would be no need to query NICS at that point.  That task would have already been taken care of.

By law require that all private individuals selling a firearm go through the step of verifying the status of a potential buyer by examining their driver’s license.  Currently Federal law requires that if you sell a firearm in a private transaction that you can only sell to a person who lives in the same state.  Therefore checking the driver’s license helps you obey this Federal law also.

The vast majority of private citizens have no desire to sell a firearm to a crook or crazy person.  This would give private citizens a very good means to check potential buyers.  If law enforcement were to conduct and publicize periodic sting operations posing as private buyers and arresting people who did not check, then compliance in private sales would most likely be very high.

Would such a system prevent illegal sales to unqualified individuals?  No, it would not. But such a system would satisfy the demand for a background check without expanding current government oversight.  In fact it would lessen government oversight because the government would not be tempted to build a list of potential gun owners from NICS applications.  Under such a universal system the government would have no idea if a NICS request was for a person intending to buy a gun, or just a person who was getting a driver’s license.

One criticism of a code on a person’s driver’s license is that it would be an obvious stigma.  On many occasions you may need to show your driver’s license as identification and an obvious code that said you were an ex-felon or a crazy person might be seen as making people wear a “Scarlet Letter.”

That objection could be easily met.  A simple method would require that the code be on the back of the license so when you identify yourself – other than buying a firearm – that code is not visible.  For additional protection the law could prohibit a person requiring your id for identification from turning over your card and deliberately determining a person’s status other than for an actual firearms purchase. The law could prohibit potential employers from also examining the back of your driver’s license. As a final step people who are morally or philosophically opposed to firearms ownership could opt to not have the code placed on their id (but not decline having the background check done for them).

An exception should be made for police officers though. If for example a person is stopped by police for some violation and found to possess a firearm the police could immediately use the person’s license to determine if they are entitled to own or possess a firearm. This could be a deterrent against people illegally carrying firearms (but don’t be foolish enough to think it would stop hard core criminals and psychopaths).

The NRA could not complain about law abiding citizens being delayed in making a firearms purchase. The problem of false negatives with the current NICS system that often denies a legitimate purchase would be eliminated.

Gun owners, the firearms industry, the NRA, and people who sincerely want to implement sensible checks could all work together and actually get something done. Such a system could definitely tighten up the availability of guns to people who shouldn’t have them while not burdening law abiding citizens with unnecessary or unreasonable delays.

Advantages:

  • Instant ability to purchase a firearm for qualified individuals.
  • Eliminates false positives in current NICS system
  • Universal background checks for private sales.
  • Less temptation for government to build an illegal database of potential gun owners.
  • Instant method for police to determine if a person is entitled to possess a firearm.

Disadvantages:

  • NICS would have to be adapted to new system.
  • Sensitivity to handling driver licenses or ids to shield a person’s status when identifying themselves.

I think we could live with the disadvantages for the very clear advantages of such a system.

Posted in 2nd Amendment, Gun Control, Guns, NRA, Politics, Self Defense | Leave a comment

Inside the Zimmerman Trial

Almost everyone in America was aware of the Zimmerman trial that ended in a not guilty verdict in Florida recently. Some may have only been peripherally aware and others may have followed it closely.

Now I would like to give you an insiders view of what really happened, of what the jury really saw, who the players were, and why the jury reached the verdict it did. Unfortunately many people have very strong views on the outcome, but conversely are largely ignorant of the evidence the jury had to consider. However if you actually want the inside story, read the following acount by Massad Ayoob.

Massad Ayoob is a very well known and highly respected authority on the use of firearms and self-defense and was retained by the Zimmerman defense team as an expert witness. Until the trial was over he could not comment. Here from Wikipedia is a brief description of his qualifications:

Massad Ayoob

Massad Ayoob

Massad F. Ayoob is an internationally-known firearms and self-defense instructor. He has taught police techniques and civilian self-defense to both law enforcement officers and private citizens in numerous venues since 1974. He was the director of the Lethal Force Institute (LFI) in Concord, New Hampshire from 1981 to 2009, and now directs the Massad Ayoob Group (MAG). Ayoob has appeared as an expert witness in several trials. He has served as a part-time police officer in New Hampshire since 1972 and holds the rank of Captain in the Grantham, New Hampshire police department. –Wikipedia

Below are 15 links to a series of articles by Massad Ayoob that give a real in depth look, and explanation of many aspects of the trial. I highly recommend you take the time to read all of them.

1: THE ZIMMERMAN VERDICT

2: THE “UNARMED TEEN”

3: “WHO STARTED IT?”

4: THE STAND YOUR GROUND ELEMENT

5: THE GUN STUFF

6: “WHAT IF” VERSUS “WHAT IS”

7: WHY THE JURY DIDN’T LEARN ABOUT TRAYVON MARTIN

8: THE QUANTITY OF INJURY ARGUMENT

9: THE PROPAGANDA FACTOR

10: THE SEMANTICS

11: RATING THE LAWYERS (DEFENSE)

12: RATING THE LAWYERS (PROSECUTION)

13: ANGELA COREY

14: THE JUDGE

15: TALK AT THE SCENE, TALK ON THE STAND?

Read all of these, from an inside witness to the trial and an expert on self-defense and the law, then if you want leave a comment. But please don’t leave a comment if you haven’t read them.

Posted in 2nd Amendment, Blacks, Concealed Carry, Gun Control, Guns, Racism, Self Defense, Violence, Zimmerman | Leave a comment

Differences

Replying to a post “Why you must take the plunge to talk about race and skin color“:

“And if indeed you are taught that racism is learned, you’d think it would make sense don’t talk about race or skin color, then children’ won’t learn to be racist. If adults don’t point out the racial differences, kids won’t see them. But in fact the opposite is true.”

Absolutely correct. Racism is inherent in the human condition. Humans are wired to see differences and draw conclusions about the meaning of those differences based on experience. Humans are wired to identify “we” and “them” and differences of sex and color are two big and obvious differences.

There is nothing immoral or inhuman about naturally drawing such conclusions. The mechanisms are largely below the conscious threshold. This is as true of black, yellow, and red children as of white children. All are born natural racists and bigots.

The point of education is to bring the rational mind and the heart into the conversation and help it see the evidence that there is more that unites than divides, to see the humanity in all that underlies the differences. There is nothing inherently awful about starting out life as a racist and a bigot. It is the human condition. The tragedy is is not in how we start, but in how we end.

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The Well Regulated Militia

Got into a short discussion with WordPress blogger and writer Rawclyde! the other day and as usual the subject of the 2nd Amendment came up. He commented:

“I would like to dig into the history where the making of the famous ‘militia’ phrase occurred ~ because I’m very stuck on that phrase in this ongoing debate.”

Just for reference, here are those well worn words again:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. –2nd Amendment to the Constitution of the United States

Statue commemorating the Lexington Minutemen, a colonial militia that fired some of the first shots in the American Revolution

Statue commemorating the Lexington Minutemen, a colonial militia that fired some of the first shots in the American Revolution

A ton of things could be said about the 2nd Amendment (and have been, some here), but let’s talk about that “militia” a bit and what it really meant to the people who wrote the Constitution.

A lot of people seem to get stuck on that phrase about the “well regulated militia” and try to understand it without actually reading what the Founders wrote. But it is actually not that hard to find out if one is willing to spend time with some 18th century writing that often seems a little obtuse to modern readers.

The key to understanding what the authors intended can be found in the Federalist Papers – a series of articles and essays written by Hamilton, Madison, and Jay to explain and defend the ideas of the newly proposed Constitution against critics who preferred the existing order where the Federal government had considerably less power under the Articles of Confederation which had been ratified in 1781 .

One basic concern was that a more powerful central government would become tyrannical. It would have a professional army at its disposal and could then subjugate the states by force of arms. In the the Federalist Papers it was argued that on the contrary the states would have at their disposal armed militias that, although less well trained and equipped than the professional army,  would be much larger and therefore could defeat any professional army they could imagine the Federal government could afford to create.

The Founders saw the militia as having a threefold purpose: first as a force that would supplement the small army to defend the nation from external threats such as invasion, secondly against internal rebellions, and lastly as a defense against the central government itself should it become a threat to the rights and  prerogatives of the individual states.

The Founders were basically cheapskates when it came to a professional military. They didn’t want to have that much expense, they distrusted professional military, and based on their experience thought a militia, although it has serious military deficiencies, was good enough, and just importantly cheap enough. They wanted peace, business, and scientific advances and not war and conquest.

A really important point to understand is that control of the militias was in the hands of the individual states. It was up to the states to “regulate” their state militia. “Regulate” is in this sense a multi-purpose word in that it implied both a right of the state, and a duty.

As the modern reader may well understand “regulate” meant that the state militia would be under the power of civilian authority in the state. It most definitely did not mean that power of “regulation” would extend to the Federal government.

Another meaning that may not be as obvious to the modern reader is the duty of the state to “regulate” the militia in the sense of keeping it as up to date and useful as possible (given the general disinclination of people then to tax and spend to pay for it, unless a threat was near at hand). A “well regulated” clock in that day was one adjusted to perform its function.  In that sense a “well regulated militia” was one that was adjusted to perform its function as well as possible. Hence the real meaning,  a largely civilian military organization controlled by civilians to protect the community, state, and ultimately the nation.

The state governments were expected to regulate the militia by first appointing capable officers to lead it, to set standards for equipping it, and require periodic training of the citizens who were in fact the militia. You can imagine that was popular with people who had to leave work and travel to some place for training, and to largely pay for their own rifles and equipment if they could afford it.

Imagine today that by law each able bodied man (and woman?) had to take off two weeks every year, buy an M-16 rifle and hundreds of rounds of ammunition and all the sundry backpacks, boots, etc., to equip an infantryman and travel to some designated spot in the state and practice shooting and military maneuvers. You may imagine this would be a hugely popular way to spend one’s accrued vacation leave from work.

Back in the day the militias were often very democratic. Abraham Lincoln served in the militia in the Black Hawk War in 1832 and was elected as the captain of his company. At one point Lincoln had to wrestle another officer (and lost) for the right to a prime camping spot.

As one can easily imagine the officers were not always regulated so much in terms of military competence but rather by popularity and sometimes wealth and influence. But it seemed to have worked well enough for the needs of the time.

One very obvious virtue of a militia system is that it does not encourage military adventurism. Real people with real lives and jobs may be willing to do minimal duty to maintain a credible system of defense, but not too many would see that “defense” as extending to battlefields in Iraq or Afghanistan, especially without an offically declared state of war.

Today we have the National Guard as a reserve military force but it only vaguely resembles the militia of the Founders. You can read about the Militia Act of 1903, also called the “Dick Act,” for a fuller understanding of how that changed. Probably the most important aspect was the shifting of the power to control and regulate these forces to the Federal government and the professional military.

It may not entirely be a coincidence that not long after America has been involved in numerous global conflicts starting with WWI, WWII, the Korean War, the Vietnam War, Iraq, Afghanistan, and numerouls smaller and less well known interventions. At least in WWII there was a clear justification after Pearl Harbor and popular support was probably as unanimous as it has ever been for use of military force. There was also an official declaration of war, the very last time America has ever offically declared itself at war.

Before the Civil War the professional military remained relatively small as the Founders envisioned. After the Civil War the Republican Party largely supported the extermination of the native Americans in the west to further business interests (and political contributors) such as the Pacific Railroad. Professional military, many veterans of the Civil War, largely led that effort. General George Armstrong Custer was a shining example of that cadre of professional officers much in favor of anything but peacetime service.

Returning to the subject of the militia, simply put the militia of the Founders no longer exists as an officially recognized organization. The National Guard is the closest we have to that, but in fact they hardly resemble the militia of late 18th century America. The basic principle of state “regulation” is largely a memory and the idea of the National Guard fighting the regular Army to protect state’s rights is not very probable.

However the Founders thought primarily in principle and it would not be impossible to reform our military power more along the lines that the Founders intended. That might be possible, but it would certainly be very difficult given the concentration of power the Federal government has amassed since the Constitution was adopted in 1787. This concentration of power is exactly what the Founders feared most.

A possible model of a modern militia system is that of Switzerland where only about 5% of the military are full time professionals. The rest are part time soldiers who are drafted into military service. The Swiss are not well known for starting wars or for military adventurism around the world. During WWII the German Wehrmacht invaded a lot of countries and subjugated many of them but they did not attack Switzerland despite the enormous riches cached in Swiss banks.

Another virtue of a militia like that of Switzerland is that compulsory service in the military does instill some individual virtues and reminds the citizen that they have a moral responsibility to defend themselves and their country. The draft disappeared from America after the Vietnam War but only because a lot of parents objected to the government sending their kids off to fight a war half way around the world for purposes that many could not rationally justify in the name of moral self defense.

(As a Vietnam veteran myself I do understand that there were justifiable purposes to that war, and American soldiers won that war on the ground, only to have Democratic politicians surrender all that was won by a Congress led by Thomas “Tip” O’Neil after the resignation of President Nixon.)

A good militia system and stronger modern controls over its use would go a long way to making military service a more universal common denominator of experience for young people and would greatly discourage use of the military as a “global policeman” for causes that many Americans do not support (which does not preclude the possibility of the use of force for causes that are largely supported, for example, like WWII where the aggression of evil nations was clear for most people to see).

The sort of controls I would imagine would make it much harder to deploy military force around the world. For example, a declaration of war could be required for any significant military expedition where the lives of Americans would be put in harms way. At the very least a significant majority of Congress should have to vote to approve use of the professional military abroad. The power of the President to unilaterally commit American military forces should be very limited and only in the direst emergency to protect American lives. Last but not least I think it should be illegal to deploy the National Guard abroad without a declaration of war.

A modern militia not in the form of the 18th century, but recognizing some of the key principles of the 18th century thinkers who crafted the Constitution could be a very good idea. Some of those key principles are limited government and a universal duty to participate in the common defense. Then again perhaps the meaning of the 2nd Amendment would make sense in exactly the way the Founders intended.

** Some interesting and relevant links **

9 Things You Didn’t Know About the Second Amendment

The Unabridged Second Amendment

Is The Militia Obsolete?

Militia (with links to a lot more information)

Posted in 2nd Amendment, Democrats, Gun Control, Politics, Republican Party, Self Defense | Leave a comment

Criminals Safe From Background Checks

Does gun control means passing laws that criminals are exempt from?

Does gun control means passing laws that criminals are exempt from?

So the Senate is trying to come up with a law to mandate background checks in private gun sales (sales between two individuals who are not FFL licensed dealers, the so-called “Gun Show Loophole.”  Wonder if anyone has thought of the Constitutional prohibition against self-incrimination loophole?

Clayton Cramer, a well know 2nd Amendment activist and research who’s work was cited in the landmark District of Columbia v. Heller case that went to the Supreme Court, has also written about the Constitutional prohibition against self-incrimination:

In Haynes v. U.S. (1968), a Miles Edward Haynes appealed his conviction for unlawful possession of an unregistered short-barreled shotgun. His argument was ingenious: since he was a convicted felon at the time he was arrested on the shotgun charge, he could not legally possess a firearm. Haynes further argued that for a convicted felon to register a gun, especially a short-barreled shotgun, was effectively an announcement to the government that he was breaking the law. If he did register it, as 26 U.S.C. sec.5841 required, he was incriminating himself; but if he did not register it, the government would punish him for possessing an unregistered firearm — a violation of 26 U.S.C. sec.5851. Consequently, his Fifth Amendment protection against self- incrimination (“No person… shall be compelled in any criminal case to be a witness against himself”) was being violated — he would be punished if he registered it, and punished if he did not register it. While the Court acknowledged that there were circumstances where a person might register such a weapon without having violated the prohibition on illegal possession or transfer, both the prosecution and the Court acknowledged such circumstances were “uncommon.”  The Court concluded:

We hold that a proper claim of the constitutional privilege against self-incrimination provides a full defense to prosecutions either for failure to register a firearm under sec.5841 or for possession of an unregistered firearm under sec.5851. [3]

Consider a law that requires registration of firearms: a convicted felon can not be convicted for failing to register a gun, because it is illegal under Federal law for a felon to possess a firearm; but a person who can legally own a gun, and fails to register it, can be punished. In short, the person at whom, one presumes, such a registration law is aimed, is the one who cannot be punished, and yet, the person at whom such a registration law is not principally aimed (i.e., the law-abiding person), can be punished.

The Fifth Amendment, Self-Incrimination, and Gun Registration, Clayton Cramer

It should be obvious that a law requiring a background check for a firearms sale between private persons would have exactly the same implications. A convicted felon could not be convicted for buying a gun without a background check because that would in fact be self-incrimination. Therefore the only one who could be punished is the otherwise law abiding citizen who is not a convicted felon.

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