I said in my recent post entitled Gun Owners Not Out of the Woods Yet that Senate Majority Leader Reid plans to bring up his bill, S. 649, along with all of the defeated amendments, including the Toomey-Manchin amendment at a later date. Now, Neil McCabe has the inside baseball account of how Reid's Maneuver Sets Up Anti-gun Measures for Quicker, Easier Passage at Townhall.com.
According to McCabe, the gun grabbers are just waiting for another spree killer to get the public panicked about guns again, and then they will strike. These people have no sense of common decency, and therefore any shame that others might feel about dancing in the blood of innocents does not even occur to them. I hate to sound like a broken record, but none of the proposals on the table at the moment would have stopped Sandy Hook, or any other spree killing that has occurred in recent history. The facts have been pointed out to them numerous times. They know the facts, and yet they persist. Some, like Carolyn McCarthy may have tragic backgrounds that prevent them from believing the facts. But most, like Senator's Feinstein and Schumer understand, but they persist. It is difficult to credit such actions to any but bad motives.
The word "infringe" which is only used once in the Constitution, if I remember correctly, means:
1: to encroach upon in a way that violates law or the rights of another <infringe a patent>
Now, a legally required background check before you are allowed to purchase a weapon infringes your rights by virtue of providing a prior restraint on your right to keep and bear arms. If we take as an analogous case, the restriction on the 1st Amendment that you can not yell "fire" in a crowded theatre when there is no fire, that is not an example of prior restraint. You can yell "fire" in a crowded theatre all you like, but if you do, and they find that no fire was present, you will be prosecuted. This would be the same thing if anyone could purchase and bear whatever arms he chose, but if he assaulted or murdered someone with those arms, he would be prosecuted. In fact, this is what largely obtained before the Civil War in the country. But because of the prior restraint on the purchase of guns, the background check becomes an infringement of the 2nd Amendment. Similarly, if you had to ask permission before you said anything, and that permission was granted only if it fit with what a beauracrat wanted you to say, that would be analogous to what we have now with background checks.
If you wanted a background check system that doesn't violate the Constitution, it must be private, it must be voluntary, representing good and best practices among gun dealers. Interestingly, I think that for their own self protection, gun dealers should perform background checks and refuse certain people according to their own sense of risk. At most, the State might provide a database that the gun dealers could use to check up on persons they are suspicious about, or the gun dealer could use private background checks on the web, as many employers now do. As to records, it probably would make sense to keep records for a minimum of 7 years, though I can see using the average purchase to crime time of 14 years as well. But again, these decisions would be private, and the government could not access any record without a warrant. Most of these provisions could be enforced not by government agents, but by liability insurers, who might insist that those they insure followed the guidelines of something like a National Gun Dealers Institute.
I know what you are going to say: "If a voluntary effort would have been Constitutional, why wasn't there a organization and best practices already set up? Why did the government have to step in?" It may seem a long time ago, but it has only been a generation or so, that people used to understand that guns were inanimate tools, incapable of moral agency. Nobody expected a gun to just jump up and shoot someone on its own. It was understood that the man that wielded the gun was the moral agent who determined if it's usage was for good or evil. It was understood that the seller of the gun had no moral capacity, or legal claim to read the minds of those purchasing guns to refuse to sell to them. Finally, there was no way to know a person's record, unless he was a very famous outlaw, and then...
In today's litigious society, with computer access to data about nearly everyone, I think it highly possible that some sort of voluntary effort would have developed. But the government chose to short circuit that by setting up licenced dealers. Of course, they did this not to protect dealers, but to gain control of who had guns, and where they are. That's why they take advantage of any high profile shooting to try to advance their cause. That is why they ignore the 2nd Amendment, and they hope you will too.