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On Background Checks (Lots of Text)

Discussion in 'Legal & Political Archive' started by 1337BaldEagle, Feb 2, 2014.

  1. 1337BaldEagle

    1337BaldEagle Earth Active Member

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    Is it registration? This is what many people are asking. Let me explain the current process we have in Oregon that spills into the Federal Government. In Oregon Licensed Dealers (FFL’s) are required by Federal law to run a “background check” on any person buying a firearm. The FFL, in Oregon, will then call OSP (Oregon State Police). OSP then runs your name and SSN against the NICS (National Instant Criminal Background Check System) controlled by the FBI. Furthermore, the FFL must, first, fill out the BATFE (Bureau of Alcohol Tobacco Firearms and Explosives) Form 4473 to which the BATFE is privy to.
    The obvious civil issues I have with this form are many. First, the form contains your name and address. Where I live has no bearing on whether or not I may partake in a Right. You also have the option of submitting your SSN (Social Security Number) to quote “help prevent misidentification.” I am not required to submit my SSN but it seems from the many horror stories I have read that “misidentification” seems to be a problem that happens far too often when purchasing a firearm, a Right.

    Other information that MUST be given to receive an “approval” status infringes even more. When filling out Form 4473 there is a box labeled “Ethnicity.” You have one of two boxes you MUST check, are you “Hispanic or Latino” or are you “Not Hispanic or Latino?” This should be grossly offensive to the Hispanic community. The BATFE uses this information to come out with statistical data on what ethnicity purchases guns. Is that the only purpose that this could be used for? How are we to know that there is not a prejudice? Could there be in the future? Are there any checks to make sure this doesn’t happen? Why MUST I divulge my ethnicity? Why is it relevant when pertaining to finding out if I may partake in a Right?

    The next box is just as offensive. You must divulge your Race. Again, if you omit checking at least one box, you will be denied your Right to own a firearm. The races that you have the options from are as follows; American Indian or Alaskan Native, Asian, Black or African American, Native Hawaiian or Other Pacific Islander, or White. These are the ONLY options you have and you MUST choose at least one. What if you’re Middle Eastern? Are you to check White? Again, I beg the question, why is this relevant when attempting to purchase a firearm? Why can I not omit this information?
    The next box I have issue with is labeled “Type of Firearm.” Types to choose from are either pistol, long gun, or other. Why must the Fed or OSP for that matter know what type of firearm I own other than to at a later time tax it or to confiscate it? One of the biggest fears that people have in the firearms community is that at a later date Congress will pass a law forbidding “types” of firearms that are currently legal today. This is probably the singular reason Congress finds it hard to pass any firearms legislation. When you have Senators that are quoted saying “If I could have got them all, I would have” it is easy to not want to give an inch of compromise.

    The last few boxes are Make, Model, Serial Number, Type (again), Caliber or Gauge. I am going to skim through these since some of my arguments will be found to be redundant. I will just touch on a couple generally. I believe that the Second Amendment of our Bill of Rights was meant to limit the Government from “infringing” on the Right every American has to own and carry a firearm. Over the years congress has passed what they would deem “reasonable limits” on that right. I would question whether the Founders would accept the argument that they were reasonable. I believe that the Second Amendment was formed not only for the States to provide help to the Federal Government when asked but also for the people to ensure that out Government does not “infringe” upon our rights. If this is true, how are the people to hold to the “spirit of resistance” that was prevalent when this great nation was founded. If you believe like me you can obviously see the conflict of interest that the Fed may have when it comes to making sure there is no insurrection against them. The “registration” or logging of what type of firearm I have, along with the model, and serial number is grossly in violation of how I would perceive the purpose Second Amendment. Again, all of these components have little to nothing to do with “If” I may have a firearm but instead “when I get one, how can it be found.”

    The last issue I pose with the From 4473 is not Form 4473 it is actually that if you buy more than one firearm at a time in the course of 5 days you must instead fill out BATFE Form 3310.4. This form is specifically for those who buy more than one gun at a time from the same dealer. I would like to know the relevance? This form logs enthusiasts, like myself, and subjects them to possible undue scrutiny. It is not reasonable to assume that I may be involved in criminal activity simply because I buy a pistol for myself and another for my wife at the same time.

    Since we know by now that background checks are not simply background checks let’s dive into why expanding background checks/registration to private sales will not help keep private sales from happening. Current proposed legislation for Oregon would require every Oregonian to go through the process I explained in the beginning of this paper, from FFL, to OSP, through the Form 4473 or 3310.4. In Oregon private sales happen every day. I currently have several firearms that were from private sales. There is no record of those sales taking place or at least none that OSP or the BATFE are privy to. If the proposed legislation was to take effect yesterday I would still be able to sell my firearms to other private persons without detection from OSP or the BATFE. Since my firearms are not “registered” in any database to me, there is no deterrent for me to stop selling within a private transfer, other than the obvious want I have for being lawful. Simply put, there is no way for you to know if a private transfer happened before the date that the proposed legislation took effect unless it is registered.

    In Oregon, OSP keeps a record of all firearms transfers that require background checks. By law they keep them for 5 years. If I buy a firearm from a FFL but then 5 years later choose to transfer it to a private person, how would OSP enforce this law if they don’t have the records to be sure a transaction happened? Well, there is a way around that. Every FFL is required by the BATFE to keep their records for inquiry of every transfer and every denied transfer. Ironically, if you were denied a transfer they only have to keep your records for 5 years but if you were found to be lawful and otherwise not prohibited from owning a firearm they must keep your records for 20 years. Seems this law was passed in the spirit of forming a registry instead of prosecuting criminals who attempt to feloniously obtain firearms. It seems that the priorities of law makers are misguided. Why in 2010 (most recent data) did we have 2393 applications that were denied in Oregon, 77 of which were appealed and reversed, yet we only had 90 arrests for the crime of attempting to obtain a firearm? Why did we have even fewer convictions than arrests? Yes, these people could have gone right back out and purchased a gun from a private seller, but only because OSP failed to arrest, or the Judicial system failed to prosecute those criminals for that crime. What happened to the other 2226 denied transactions? Why were they not prosecuted? If we are having problems enforcing existing law then why would we elect to further the “infringement?”

    There are more problems with registration, one being an active “trace system” that the BATFE currently maintains. Within it firearms that deemed “problem guns” go into the system. If a gun is used in a crime it goes in the system and stays there. If a person removes a digit of the serial number of a firearm and that firearm is recovered that firearm with all of the possible serials goes in to the trace system. So if you own a firearm that is the same make and model the BATFE will enter your information into the system regardless whether your criminal or not. If a company goes out of business they MUST hand over their records and all of the information goes into the trace system. If a gun is even suspected that it will be used for a crime it goes in. Once a firearm goes into the system, there is no way to appeal for it to be removed. The Fed forever has record that you have owned a weapon.

    With the last segment of my paper I would like to ask the question “What would out Founders think?” The biggest fear that our Founders had was that the Federal Government would have too much power followed closely by those that feared that anarchy would erupt without a strong enough Federal Government. There was a balance that was agreed upon that we can all agree is no longer near where the Fathers had initially intended. Even those that wanted a strong Federal Government had reservations about the concept. They wanted to make sure that the Rights of the people were not trampled the way they saw while under England’s rule. After the Revolution started to quiet down and talks on forming governmental structure commenced the Founders finally Ratified our Bill of Rights to reassure those that had reservations of a strong centralized government. Our Bill of Rights was made to limit government, not to limit the people. The Second Amendment of our Bill of Rights reads as follows “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.” There have been many Federal rulings as to the findings of the words “regulated” meaning “put in order,” “Arms” meaning more than just firearms but ammunition as well. Yet somehow we also have those ruling reading that we may not have “any weapon for just any purpose.” The very definition of “infringed” is “an act so as to limit or undermine; encroach upon.” If we are to protect ourselves from an overbearing Federal Government why are we generally disallowed to own firearms of a militant nature? It would seem that the very weapons that we were meant to have are either taxed, banned or heavily regulated. If the government is allowed to “limit” what kinds of firearms are available for me to defend myself against said government what is to keep the government from taking my Rights away? The correct answer is nothing.

    In the 1787, Thomas Jefferson, who was serving as Ambassador to France, wrote a letter to a friend. “What country before ever existed a century and a half without a rebellion? And what country can preserve it's liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to facts, pardon and pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is it's natural manure. Our Convention has been too much impressed by the insurrection of Massachusetts: and in the spur of the moment they are setting up a kite to keep the hen-yard in order. I hope in God this article will be rectified before the new constitution is accepted."
    Thomas Jefferson refers to what later would be known as the Shay’s Rebellion. He insinuates that the Federalists were using the situation to push for a stronger centralized government. With that push we have the formation of our Bill of Rights as assurances that a government may not make us subjects but that we remain free men. Upon that our country was founded, on that did the Federalists and the Anti-Federalists agree.

    In closing I would say that a Right is not worth giving up, no matter how many dead. Even if a Right was subject to denial for increased security, it would be logical to weigh the rights of the many over the rights of a few men. 90 less prohibited persons on the street is not a reason for me to give up my Right.







    Did I miss anything?
     
    Toxic6, tiggers97, Flash and 11 others like this.
  2. bnsaibum

    bnsaibum Corvallis, OR Well-Known Member 2015 Volunteer

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    :winner: Didn't miss a thing that I can think of, but then my brain is full. There was lots of text. :)
     
  3. pokerace

    pokerace Newberg Well-Known Member

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    small brain?????
     
  4. Mark W.

    Mark W. Silverton, OR Bronze Supporter Bronze Supporter

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    Do you feel better now?
     
  5. The Heretic

    The Heretic Oregon Well-Known Member

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    I would word it differently and make a few points.

    First, the Second Amendment is not about firearms, it is about "arms" (weapons of any kind).

    The premise, objective, goal, purpose, philosophy behind the Second Amendment is that the citizens, the governed, should have the means to forcefully overthrow a government if it should become necessary.

    This means that the populace should have any "arm" that the government has, or even more (I exclude NBC weapons, but then I don't believe government or citizens should have these period, and it is beside the point).

    E.G., citizens (competent non-felon/convict adults) should be allowed to own, without special restriction or tax or BGC or registration, cannon, mortar, grenades/RPGs/etc., tanks, select-fire/full-auto firearms of any sort, SBRs, SB shotguns, suppressors, bombs, aircraft with "hard points" (weapon mounting fixtures) and so on. Pretty much any and every weapon not including NBC weapons.

    An AK/AR is not a viable defense against a tank - a Javelin or similar weapon is.

    You get the general idea; this is what the Second Amendment is about - a balance of power. Even if we could own any firearm we could carry on our person, including NFA/Title II firearms, this would not balance out the power that the government has with military firearms.

    --------------

    Second, the purpose of a universal BGC law (i.e., BGCs required for all firearm transfers) is de-facto registration. My understanding of current Oregon BGCs is that they require make/model/type and serial number of the firearm.

    As long as the firearm is not NFA/Title II, for what possible purpose is recording and storing the make/model/type and serial number of the firearm with regards to determining whether the person is "qualified" to purchase the firearm?

    There is no valid purpose to that end. A person are either "qualified" to buy a firearm or they cannot. The serial number of the firearm is irrelevant in making that determination.

    The only possible purposes for recording the serial number of a firearm are:

    1) De-facto registration.

    or

    2) Determining whether the firearm being transferred was stolen. This would be rare because:
    a) The number of firearms in the sample of those being sold would be small.
    b) Most criminals would not be using the system as they, many being felons and therefore generally prohibited from possessing a firearm to start with, would be admitting and recording that they have possession of a firearm, as probably also would be the buyer. In short, there will be a blackmarket of stolen and "prohibited" firearms regardless of the law and the current laws on the books would be more than adequate to prosecute those caught dealing in stolen firearms.

    For a buyer of firearms, there should be an online database where a serial # can be entered, and/or a make/model search can be made and a list of stolen serial #s listed. This would allow detection and reporting of someone trying to sell a stolen firearm. The data is there - the OSP has it - it would actually be less expensive (and less intrusive) than the current system where you have to call the OSP.
     
  6. fd15k

    fd15k Tigard,OR Well-Known Member

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    I think one thing missed out was that a residence address is required on 4473, which can not be a P.O. Box. If I remember correctly,
    should that address mismatch the address on state ID/DL, secondary identification is required to confirm the address (was it for
    handguns only?). Either way, that prevents homeless from buying firearms. I might have heard of a challenge to that, but don't know
    if it went anywhere.

    Edit:

    I think this is the case - http://wiki.calgunsfoundation.org/index.php/Hodgkins_v._Holder
     
  7. tiggers97

    tiggers97 United States Well-Known Member

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    Good write up. The full quote at the end, along with the "20 yrs vs 5 yrs" was a good conclusion. Who is the audience you intend to reach with this paper?

    Heretic makes some good points regarding the definition of 'Arms", but that might be an expansion beyond your argument about the purpose of why the background check bill are bad/ineffective.

    Two other things that pop up in my mind:
    1) Trust of the government to handle private information (NSA using data up to and including Google maps, etc; Maryland case of a Florida gun owner getting pulled over and search for possible possession; past transgression of the Oregon State Police in the past about NOT destroying records per the law, Recent TSA outing, take your pick)

    2) Of the X number background checks in 2010, 2393 denials, 90 arrests, and even fewer convictions; Does that mean the other 2303 were not serious enough to warrant any judicial intervention? Doesn't that support that SB 1551 is a solution looking for a problem, if even the Oregon judicial department uses a very liberal "judicial executive privilege" of only following up on (90/2393) 4% of prosecutions (of which even fewer are convicted).
     
  8. tkdguy

    tkdguy Portland, Oregon Silver Supporter Silver Supporter

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    Go see: Fact vs. fiction on background checks and the gun control debate/Fox News April 9, 2013 by John Lott
     
  9. tiggers97

    tiggers97 United States Well-Known Member

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    Interesting. A stronger case, but either way demonstrates a lack of an emergency or problem. i.e. solution looking for a problem.
     
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  10. 1337BaldEagle

    1337BaldEagle Earth Active Member

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    Actually apperantly only 4% are reversed. You can look it up on DoJ stats from 2010.
     
  11. chariot13

    chariot13 Near Eugene/Springfield Well-Known Member

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    There are ways around the P.O. Box. There are companies in every midsize to major city that will rent you a monthly box and you use their physical address as your address and the box number appears the same as an apartment number on the address you write as your own.
    Looks similar to below... I used one of these services in the past and purchased firearms using it.
    Such and such
    2200 derving st
    #19
    Eugene, OR 97404
     
  12. The Heretic

    The Heretic Oregon Well-Known Member

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    There are databases that a lot of orgs use to detect whether these addresses are POBs or not. I get turned down sometimes when I use mine - e.g., the DMV will not accept it.

    Each of these commercial private MB services has had to register themselves with the USPS as a MB service. This happened about 10 years ago. IIRC the USPS will not deliver some packages to these MBs, although FedEx and UPS, etc., will.
     
  13. chariot13

    chariot13 Near Eugene/Springfield Well-Known Member

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    Yeah, Im not sure if the above MB's work for the DMV but there are ways around all of the DMV requirements...... But as far as the dmv for place of business there are legitimate exemptions too. A lot of times when dealing with government its a matter of articulating an exemption in your favor. An obvious legitimate exemption is - a person I know who runs a grocery store in a bum bubblegum Egypt small town that has their living quarters in the back of their place of business.
     
  14. FortRock

    FortRock Bend/Salem, OR Bronze Supporter Bronze Supporter

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    Well done sir. I applaud you and your work. Thank you!
     
  15. 1337BaldEagle

    1337BaldEagle Earth Active Member

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    For those that are asking about who the audience is there is no specific audience it was meant to be informative. I could easily add a segment at the bottom to make it specifically to legislators if I wanted. If I did have the chance to read it for them I would, although I would think that it would take longer to read than the time allowed.
     
  16. The Heretic

    The Heretic Oregon Well-Known Member

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    Possibly.

    Just saying it isn't as simple as it used to be to just give a street address that is actually a private MB for official gov. purposes. I used to do that all the time and then gov. agencies stopped accepting, and then even some businesses did too, requiring at least a residential address in addition to a mailing address.

    IIRC, even cellular carriers won't accept private MB addresses now because they are required by the gov. to have a real residential address for each of their subscribers due to drug dealers using cell phones.

    For business accounts I am sure it is different.

    We are increasingly becoming a surveillance state where the gov and businesses know more and more about you.
     
  17. tiggers97

    tiggers97 United States Well-Known Member

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    So did you submit this as written testimony? There are probably parts you could leave out if you wanted to speak to an abbreviated version, and still hit all the high-points.
     
  18. deen_ad

    deen_ad Vancouver, WA Well-Known Member

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    I have done that but the USPS has a service where senders can check and see that's it's a private mail service and box. I've had mail show up in mine that I listed as a "Suite" or room number that was changed to a PMB (Personal Mail Box).


    Deen
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