The US should require a Universal Background Check for all Transfers of Ownership

Hopefully I cleared up the confusion that lead to a previous mistaken acceptance...


Resolved: The US should require Universal Background Checks for all Sales and Transfers of Ownership

For this debate I will be arguing the negative to the supplied resolution. To start the terms of the resolution should be defined.

Universal Background Check- Any system that would require a background check be performed, under threat of fine or imprisonment, upon purchase of, or  transfer of ownership of, a gun. 

For example, the NICS system for FFL sales, but expanded to include and any all sale or non-sale transfers of ownership. It should also be noted for purposes of constructive debate and to create a fair and level playing field, that a registry of gun owners was purposely excluded from the definition of a UBC, even though a creation of a registry still applies in practical terms. 

This because such a registry and violation of it has already been ruled[1] as inapplicable to those who possess guns illegally in Hayes v US(1968). In that ruling the court held:

"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." (Haynes v. U.S., 390 U.S. 85, 100, 88 S.Ct. 722, 732 (1968))

Basically, laws that punish failure to register and possession of an unregistered firearm are inapplicable to anyone those who cannot legally possess firearms. So the only purview of such laws is in prosecuting law abiding citizens who can legally own a gun, but fail to register it. 

Thusly, the principle of stare decisis would have us hold that registries do not target or affect the people who they are designed for, that being those for whom possession is illegal.

But in continuance, the creation of such a national registry was expressly forbidden in 1986, when President Ronald Reagan signed the Firearms Owners’ Protection Act into law[2]
It should be clearly obvious that non-voluntary transfers of ownership are not to be included as non voluntary transfer of ownership is theft. And the legal expectation of a person performing a background check in the midst of a theft is facially absurd. 

Also, that transfers of possession, such as lending, leasing, etc. As those transfers automatically imply that the possession of the object in question will be at some point, returned back to the *owners* possession. 

It should also be noted that *The US* in the debate resolution implies adherance to the framework laid out by the founding documents and subsequent legislation/legal rulings of the United States. This isnt a debate on the validity of the framework itself, it is a debate on whether that framework and legal system would permit the implementation of a federally mandated universal background check for any and all transfers of ownership. 

In much the same manner that this debate pertains exclusively to a UBC and not any other form of gun control, unless it be directly related to implementation of a UBC. Extensive policy planning should be viewed as grounds for disqualification. General advocacy plans are of course permissible, but should be kept relevant to the resolutron. 

Normally the affirmative presents the first construct, but due to the site set-up, as the negative i will create the first construct, to which the affirmative will construct theirs. To make up for losing the case I first construct, I will waive the second rebuttal usually reserved for the affirmative.

[1]https://supreme.justia.com/cases/federal/us/390/85/
[2]https://www.congress.gov/bill/99th-congress/senate-bill/49

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The Case:

My case will be centered around the legality/justice of a Universal Background Check. As Justice is inherently a moral value, parts of the legal argument will also operate as a moral argument. 

Premise 1: A UBC for all transfers, sale or non-sale, would require a universal firearm registry to effectively implement. 

This is because if we are going to set private sales as subject to a background check, it would automatically require storing information as to who owns which guns, so these private transfers can meet burden of proof requirements necessary to convict individuals who violate the law.

The affirmative is more than welcome to argue why ability to prosecute violations of, doesn't factor in heavily to the creation of, laws.

As it stands, in almost all states when you purchase a gun through an FFL, you go through a NICS[3] check, and within 24 hours of determination the records of purchase and the background check are destroyed. 

Thus we have no means to track private sales. And the only feasible route would be through the creation of a registry. This of course falls under the purview of the 4th amendment as i will in short order, as well as being in direct defiance of the aforementioned Firearm Owners Protection Act. 

The 4th Amendment

The 4th[4] Amendment is "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized" 

Unreasonable[5] in legal context being defined as a search and seizure by a law enforcement officer without a warrant and without probable cause to believe that evidence of a crime is present. 

It is important to note that, as established with the necessity of a registry to effective prosecution of violation of a UBC, a background check would both constitute as a search(for personal information) and a seizure(of information to be stored) as well. And being that if a person is legally able to own a gun, they are not committing a crime in purchasing one, the storage of any information from that purchase is de facto in violation of this as it does not meet the requirement of *probable cause*. 

Premise 2: A UBC would independently violate further amendments and clauses

The 10th Amendment

The 10th[6] amendment is "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."

This is of particular importance because a part of transfers of ownership includes sales. This falls under the purview of the CommerceClause of the US Constitution that states:

"To regulate commerce with Foreign Nations, and among the several States, and with the Indian Tribes."

This clause is and has been affirmed in subsequent legal rulings such as Printz v US(1996)[7], to being a grant of power to the Federal government to regulate *interstate*(between state commerce) and not *intrastate*(within the state) commerce. Thus, a universal background check to include all private sales would be by virtue of stare decisis, in violation of the 10th amendment and the Commerce Clause. 

The 14th Amendment


The 14th Amendment is, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Any attempt at a UBC will immediately run afoul of this amendment. Why? Because such a requirement would disproportionately effect the poor, which are predominantly minorities[8]. 

To further this point, the cost of a background check is not free, and is usually tacked onto the purchase price of the gun if applied for the state. Let's hypothetically in a perfect world say all 50 states independently passed identical UBC laws. The state has every right to tack on that cost to citizens, and it does. 

So even in the unrealistic hypothetical, the cost[9] for the purchaser would balloon and one would feasibly see upfront costs of 1,000+ just to be in compliance with laws, let alone the cost of the gun itself. 

This alone shatters "nor deny any person within its jurisdiction the equal protection of laws." This because any such system would price the poor out of being able to excercise their 2nd amendment rights by denying them equal priviledge to purchase firearms. This is of particular distastefulness because the poor live in the most crime ridden communities in the US and are twice[10] as likely to be the victim of a non-fatal violent crime, let alone a fatal violent crime. 

A UBC would in effect, be creating inequal application of law that would deny access on monetary grounds to those most likely to be violently victimized. 

This also ties into the "necessary and proper" clause as outlined in the Constitution, as any law that infringes upon an established amendment can neither be held as necessary or proper. 

Conclusion:  That a UBC would be in violation of law, unjust in accordance with the rights of the  people and government as outlined in the Constitution, and therefore immoral to enact.

As such, any advocacy of a UBC ought be categorically denied. Thank you for reading and i look forward to acceptance and the affirmative case construct. 
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[3]https://en.m.wikipedia.org/wiki/National_Instant_Criminal_Background_Check_System
[4]https://www.law.cornell.edu/constitution/fourth_amendment
[5]https://www.law.cornell.edu/wex/unreasonable_search_and_seizure
[6]https://www.law.cornell.edu/constitution/tenth_amendment
[7]https://en.m.wikipedia.org/wiki/Printz_v._United_States
[8]http://federalsafetynet.com/us-poverty-statistics.html
[9]https://www.outdoorlife.com/blogs/gun-shots/2013/03/how-much-does-it-cost-own-firearm-state-state-breakdown
[10]https://www.bjs.gov/index.cfm?ty=pbdetail&iid=5137