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Librarian
12-30-2010, 3:30 PM
From Volokh, http://volokh.com/2010/12/30/big-second-amendment-opinion-from-the-fourth-circuit-related-to-the-ban-on-gun-possession-by-domestic-violence-misdemeanants/

Here is what struck me as the heart of the court’s reasoning:

Some courts have treated Heller’s listing of “presumptively lawful regulatory measures,” for all practical purposes, as a kind of “safe harbor” for unlisted regulatory measures, such as 18 U.S.C. § 922(g)(9), which they deem to be analogous to those measures specifically listed in Heller. See, e.g., United States v. White, 593 F.3d 1199, 1206 (11th Cir. 2010) (“We see no reason to exclude § 922(g)(9) from the list of longstanding prohibitions on which Heller does not cast doubt.”). This approach, however, approximates rational-basis review, which has been rejected by Heller. In fact, the phrase “presumptively lawful regulatory measures” suggests the possibility that one or more of these “longstanding” regulations “could be unconstitutional in the face of an as-applied challenge.” United States v. Williams, 616 F.3d 685, 692 (7th Cir. 2010).

In view of the fact that Heller ultimately found the District’s gun regulations invalid “under any standard of scrutiny,” it appears to us that the Court would apply some form of heightened constitutional scrutiny if a historical evaluation did not end the matter. The government bears the burden of justifying its regulation in the context of heightened scrutiny review; using Heller’s list of “presumptively lawful regulatory measures” to find § 922(g)(9) constitutional by analogy would relieve the government of its burden.

Thus, a two-part approach to Second Amendment claims seems appropriate under Heller, as explained by the Third Circuit Court of Appeals, and Judge Sykes in the now-vacated Skoien panel opinion. The first question is “whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee.” This historical inquiry seeks to determine whether the conduct at issue was understood to be within the scope of the right at the time of ratification. If it was not, then the challenged law is valid.

If the challenged regulation burdens conduct that was within the scope of the Second Amendment as historically understood, then we move to the second step of applying an appropriate form of means-end scrutiny. Heller left open the issue of the standard of review, rejecting only rational-basis review. Accordingly, unless the conduct at issue is not protected by the Second Amendment at all, the Government bears the burden of justifying the constitutional validity of the law....

[W]e are certainly not able to say that the Second Amendment, as historically understood, did not apply to persons convicted of domestic violence misdemeanors. We must assume, therefore, that Chester’s Second Amendment rights are intact and that he is entitled to some measure of Second Amendment protection to keep and possess firearms in his home for self-defense. The question then becomes whether the government can justify, under the appropriate level of scrutiny, the burden imposed on Chester’s Second Amendment rights by § 922(g)(9)....

Given Heller’s focus on “core” Second Amendment conduct and the Court’s frequent references to First Amendment doctrine, we agree with those who advocate looking to the First Amendment as a guide in developing a standard of review for the Second Amendment. In the analogous First Amendment context, the level of scrutiny we apply depends on the nature of the conduct being regulated and the degree to which the challenged law burdens the right. For example, a “content-based speech restriction” on noncommercial speech is permissible “only if it satisfies strict scrutiny.” But, courts review content-neutral time, place, and manner regulations using an intermediate level of scrutiny. Likewise, a law regulating commercial speech is subject to a more lenient intermediate standard of scrutiny in light of “its subordinate position in the scale of First Amendment values.” As Judge Sykes observed in the now-vacated Skoien panel opinion: “The Second Amendment is no more susceptible to a one-size-fits-all standard of review than any other constitutional right....”

Although Chester asserts his right to possess a firearm in his home for the purpose of self-defense, we believe his claim is not within the core right identified in Heller — the right of a law-abiding, responsible citizen to possess and carry a weapon for self-defense — by virtue of Chester’s criminal history as a domestic violence misdemeanant. Accordingly, we conclude that intermediate scrutiny is more appropriate than strict scrutiny for Chester and similarly situated persons. Accordingly, the government must demonstrate under the intermediate scrutiny standard that there is a “reasonable fit” between the challenged regulation and a “substantial” government objective. Significantly, intermediate scrutiny places the burden of establishing the required fit squarely upon the government.
United States v. Chester (http://pacer.ca4.uscourts.gov/opinion.pdf/094084.P.pdf) Opinion from 12/30/2010

OleCuss
12-30-2010, 3:38 PM
As a non-lawyer, non-expert - that isn't all I'd hoped for but it looks like an intelligent and reasoned approach.

Nice to see what I consider an intelligent opinion even if I may not entirely like the content.

Chester
12-30-2010, 3:42 PM
Lock and load! Tell my mom I said I love her after they burn my family and me alive in our house.

GrizzlyGuy
12-30-2010, 3:48 PM
Lock and load! Tell my mom I said I love her after they burn my family and me alive in our house.

:rofl2:

Chill out Chester, yuh ain't dead yet. Look at the conclusion of your court:

We cannot conclude on this record that the government has carried its burden of establishing a reasonable fit between the important object of reducing domestic gun violence and § 922(g)(9)’s permanent disarmament of all domestic violence misdemeanants. The government has offered numerous plausible reasons why the disarmament of domestic violence misdemeanants is substantially related to an important government goal; however, it has not attempted to offer sufficient evidence to establish a substantial relationship between § 922(g)(9) and an important governmental goal.

Hang tight on the cartridge box, the jury box is still fully in play. :)

OleCuss
12-30-2010, 3:51 PM
Yeah, what GrizzlyGuy said:

Also, I'd note that the reason the government didn't provide sufficient evidence may be that they can't come up with the necessary facts to support their contention. This may bode well for Chester's eventual triumph.

BillCA
12-30-2010, 4:00 PM
At first glance, this jumps out at me from the short synopsis posted:
Although Chester asserts his right to possess a firearm in his home for the purpose of self-defense, we believe his claim is not within the core right identified in Heller — the right of a law-abiding, responsible citizen to possess and carry a weapon for self-defense — by virtue of Chester’s criminal history as a domestic violence misdemeanant.

My issue with the quote abive is that it appears that the court sees any conviction under §922(g)(9) as disqualifying the person as a "law abiding, responsible citizen" entitled to 2A protection. When the question is whether or not §922(g)(9) is constitutional in the first place, that means their statement is circular reasoning, for if 922(g)(9) is not constitutional, there is no disenfranchisement. But more importantly, it appears that the court's reasoning could be applied to any misdemeanor to show the person is not a "law abiding, responsible citizen", no matter how trivial or how long ago.

press1280
12-30-2010, 4:03 PM
"Accordingly, we conclude that intermediate scrutiny is more appropriate than strict scrutiny for Chester and similarly situated persons."

Do I take it that the 4th Circuit is saying strict scrutiny for law abiding citizens?

anthonyca
12-30-2010, 4:13 PM
At first glance, this jumps out at me from the short synopsis posted:


My issue with the quote abive is that it appears that the court sees any conviction under §922(g)(9) as disqualifying the person as a "law abiding, responsible citizen" entitled to 2A protection. When the question is whether or not §922(g)(9) is constitutional in the first place, that means their statement is circular reasoning, for if 922(g)(9) is not constitutional, there is no disenfranchisement. But more importantly, it appears that the court's reasoning could be applied to any misdemeanor to show the person is not a "law abiding, responsible citizen", no matter how trivial or how long ago.

This is how they will trap more people into gun bans. Just keep expanding what mild "crimes" can mean a lifetime ban.

stix213
12-30-2010, 4:14 PM
"Accordingly, we conclude that intermediate scrutiny is more appropriate than strict scrutiny for Chester and similarly situated persons."

Do I take it that the 4th Circuit is saying strict scrutiny for law abiding citizens?

That's exactly what I was about to point out. They are saying that intermediate scrutiny is appropriate for people with a criminal history. It would seem they are also saying its strict scrutiny for the rest of us.

BillCA
12-30-2010, 4:57 PM
The use of "longstanding prohibitions" is questionable with reference to felons with guns, mentally ill and many similar regulations, such as prohibition on mail order guns. For 192 years (1776-1968) these regulations did not exist or only existed as non-uniform state/local laws. Only in the last 42 years have these laws existed and they were not constitutionally challenged due to lower court bias in favor of the "collective rights model."

I also disagree with Judge Davis (concurring) that 922(g)(9) should easily be found constitutional. The 7th circuit's en banc conclusion claimed that "logic and data" indicated the law was constitutional. That is not enough.

Historically, misdemeanor violations were considered to be minor or petty crimes which were dealt with mostly on a state and local level. Such crimes as common assault, battery, drunkeness, petty larceny and others were treated as minor offenses with little "stain" on the person's reputation not long after completing their sentences. Felonies, however, were more serious and could result in constitutional impairments, such as not being allowed to hold elective office or to vote. In short, historically it required a serious crime (felony) to be disenfranchised from constitutional protections.

The "slippery slope" here is that once the door is opened to allowing misdemeanors to disqualify persons from constitutional protections then any offense, no matter how minor or when committed, may result in a large population of 2nd-class citizens unable to enjoy the safeguards of our most basic laws.

hoffmang
12-30-2010, 4:59 PM
I also disagree with Judge Davis (concurring) that 922(g)(9) should easily be found constitutional. The 7th circuit's en banc conclusion claimed that "logic and data" indicated the law was constitutional. That is not enough.


Davis is 'concurring' in only the most technical legal meaning of the term...

-Gene

Blackhawk556
12-30-2010, 4:59 PM
I wonder which case will reach SCOTUS and decide for either strict/intermediate scrutiny

ALSystems
12-31-2010, 3:45 AM
At first glance, this jumps out at me from the short synopsis posted:


My issue with the quote abive is that it appears that the court sees any conviction under §922(g)(9) as disqualifying the person as a "law abiding, responsible citizen" entitled to 2A protection. When the question is whether or not §922(g)(9) is constitutional in the first place, that means their statement is circular reasoning, for if 922(g)(9) is not constitutional, there is no disenfranchisement. But more importantly, it appears that the court's reasoning could be applied to any misdemeanor to show the person is not a "law abiding, responsible citizen", no matter how trivial or how long ago.This is how they will trap more people into gun bans. Just keep expanding what mild "crimes" can mean a lifetime ban.



This sounds like it will only take one unproven incident with a crazy GF or vindictive spouse to get a gun ban.

Here's a list of CA misdemeanors which will result in a gun ban:

From Calif DOJ (Rev. 11/2007):

LIST OF PROHIBITING MISDEMEANORS

Firearm prohibitions for misdemeanor violations of the offenses listed below are generally for ten years from the date of conviction, but the duration of each prohibition may vary. All statutory references are to the California Penal Code, unless otherwise indicated.
• Threatening public officers, employees, and school officials (§ 71.)
• Threatening certain public officers, appointees, judges, staff or their families with the intent and apparent ability to carry out the threat (§ 76.)
• Intimidating witnesses or victims (§ 136.1.)
• Possessing a deadly weapon with the intent to intimidate a witness (§ 136.5.)
• Threatening witnesses, victims, or informants (§ 140.)
• Attempting to remove or take a firearm from the person or immediate presence of a public or peace officer (§ 148(d).)
• Unauthorized possession of a weapon in a courtroom. Courthouse, or court building, or at a public meeting (§ 171(b).)
• Bringing into or possessing a loaded firearm within the state capitol, legislative offices, etc. (§ 171(c).)
• Taking into or possessing loaded firearms within the Governor’s Mansion or residence of other constitutional officers (§ 171(d).)
• Supplying, selling or giving possession of a firearm to a person for participation in criminal street gangs (§ 186.28.)
• Assault (§§ 240, 241.)
• Battery (§§ 242, 243.)
• Assault with a stun gun or taser weapon (§ 244.5.)
• Assault with a deadly weapon other than a firearm, or with force likely to produce great bodily injury (§ 245.)
• Assault with a deadly weapon or instrument; by any means likely to produce great bodily injury or with a stun gun or taser on a school employee engaged in performance of duties (§ 245.5 .)
• Discharging a firearm in a grossly negligent manner (§ 246.3.)
• Shooting at an unoccupied aircraft, motor vehicle, or uninhabited building or dwelling house (§ 247.)
• Inflicting corporal injury on a spouse or significant other (§ 273.5.)*
• Wilfully violating a domestic protective order (§ 273.6.)
• Drawing, exhibiting, or using deadly weapon other than a firearm (§ 417(a)(1) and (a)(2).)
• Inflicting serious bodily injury as a result of brandishing (§ 417.6.)
• Making threats to commit a crime, which will result in death or great bodily injury to another person (§ 422.)
• Bringing into or possessing firearms upon or within public schools and grounds (§ 626.9.)
• Stalking (§ 646.9.)
• Armed criminal action (§ 12023.)
• Possessing a deadly weapon with intent to commit an assault (§ 12024.)
• Driver of any vehicle who knowingly permits another person to discharge a firearm from the vehicle or any person who willfully and maliciously discharges a firearm from a motor vehicle (§ 12034(b) or (d).)
• Criminal possession of a firearm (§ 12040.)
• Firearms dealer who sells, transfers or gives possession of any firearm to a minor or a handgun to a person under 21 (§12072(b).)
• Various violations involving sales and transfers of firearms (§ 12072(g)(3).)
• Person or corporation who sells any concealable firearm to any minor (former § 12100(a).)
• Unauthorized possession/transportation of a machine gun (§ 12220.)
• Possession of ammunition designed to penetrate metal or armor (§ 12320.)
• Carrying a concealed or loaded firearm or other deadly weapon or wearing a peace officer uniform while picketing (§ 12590.)
• Bringing firearm related contraband into juvenile hall (§ 871.5 WIC.)
• Bringing firearm related contraband into a youth authority institution (§ 1001.5 WIC.)
• Purchase, possession, or receipt of a firearm or deadly weapon by a person receiving in-patient treatment for a mental disorder, or by a person who has communicated to a licensed psychotherapist a serious threat of physical violence against an identifiable victim (§ 8100 WIC.)
• Providing a firearm or deadly weapon to a person described in WIC 8100 or 8103 (§ 8101 WIC.)
• Purchase, possession, or receipt of a firearm or deadly weapon by a person who has been adjudicated to be a mentally disordered sex offender or found to be mentally incompetent to stand trial, or not guilty by reason of insanity, and individuals placed under conservatorship (§ 8103 WIC.)

The following misdemeanor convictions result in a lifetime prohibition:
• Assault with a firearm (§§ 12021(a)(1), 12001.6(a).)
• Shooting at an inhabited or occupied dwelling house, building, vehicle, aircraft, housecar or camper (§§ 246, 12021(a)(1), 12001.6(b).)
• Brandishing a firearm in presence of a peace officer (§§ 417(c), 12001.6(d), 12021(a)(1).)
• Two or more convictions of 417(a)(2) (§ 12021(a)(2).)
• A “misdemeanor crime of domestic violence” (§§ 18 U.S.C. 921(a)(33)(A), 18 U.S.C. 922(g)(9).)

OleCuss
12-31-2010, 4:57 AM
I kind of think that list of prohibiting convictions is almost a thing of beauty in view of the US v Chester ruling.

As I read it (and I could be reading it wrong), the State of California would have to show evidence that the prohibition is warranted for each and every one of those convictions. Good reasoning won't suffice. I'd bet that the State couldn't show even decent evidence in more than a few of those prohibitions.

Oh well, I think this will have to go to SCOTUS before we get much change on this in California. But it's nice to see some movement elsewhere which just may help restore rights in California in a few years.

Patrick-2
12-31-2010, 7:02 AM
OK, I think you all missed the important part here. Let's try again.

Although Chester asserts his right to possess a firearm in his home for the purpose of self-defense, we believe his claim is not within the core right identified in Heller — the right of a law-abiding, responsible citizen to possess and carry a weapon for self-defense — by virtue of Chester’s criminal history as a domestic violence misdemeanant.

Note no "in the home" reference.

Chester has not lost his rights. The court simply said intermediate scrutiny is required for the consideration. They also said the state has a high burden to prove his rights should be curtailed.

But read the rest of the decision without thinking of Chester. You got an Appeals Court that just suggested carrying of firearms for defense is a core fundamental right deserving of all the scrutiny and protection that right entails. They also drew analogy to the 1st Amendment.

Read beyond Chester. An Appellate Level Court just sent some pro-2A "rules of the road" back to the District Court. This is a first. This is huge news right here and will directly play into the SAF's lawsuits in MD and NC.

Mulay El Raisuli
12-31-2010, 8:51 AM
The "slippery slope" here is that once the door is opened to allowing misdemeanors to disqualify persons from constitutional protections then any offense, no matter how minor or when committed, may result in a large population of 2nd-class citizens unable to enjoy the safeguards of our most basic laws.


That's the part that jumped out at me.


"Accordingly, we conclude that intermediate scrutiny is more appropriate than strict scrutiny for Chester and similarly situated persons."

Do I take it that the 4th Circuit is saying strict scrutiny for law abiding citizens?


That's how I read it. And this is not a good thing. BillCA explains why:


At first glance, this jumps out at me from the short synopsis posted:


My issue with the quote abive is that it appears that the court sees any conviction under §922(g)(9) as disqualifying the person as a "law abiding, responsible citizen" entitled to 2A protection. When the question is whether or not §922(g)(9) is constitutional in the first place, that means their statement is circular reasoning, for if 922(g)(9) is not constitutional, there is no disenfranchisement. But more importantly, it appears that the court's reasoning could be applied to any misdemeanor to show the person is not a "law abiding, responsible citizen", no matter how trivial or how long ago.


And since this court seems to be quite happy with having a dual level of Rights scheme (one set for decent folks and another set for everyone else), avoiding being designated one of the "similarly situated" is now a major concern.


Chester has not lost his rights. The court simply said intermediate scrutiny is required for the consideration. They also said the state has a high burden to prove his rights should be curtailed.


While I disagree with the level chosen, this does put the burden of proof right where it should be (on The State).


But read the rest of the decision without thinking of Chester. You got an Appeals Court that just suggested carrying of firearms for defense is a core fundamental right deserving of all the scrutiny and protection that right entails. They also drew analogy to the 1st Amendment.

Read beyond Chester. An Appellate Level Court just sent some pro-2A "rules of the road" back to the District Court. This is a first. This is huge news right here and will directly play into the SAF's lawsuits in MD and NC.

Unfortunately, it is only suggestion. District courts don't have to obey suggestions. Not saying they won't, mind, just that they don't have to.


The Raisuli

Gray Peterson
12-31-2010, 9:08 AM
Unfortunately, it is only suggestion. District courts don't have to obey suggestions. Not saying they won't, mind, just that they don't have to.


The Raisuli

Actually, they have to:

We now grant panel rehearing, vacate our initial opinion and reissue our
decision to provide district courts in this Circuit guidance on
the framework for deciding Second Amendment challenges.

Consequences of a district court in the 4th circuit ignoring Chester would result in a per curiam vacate and remand by what's called the "motions panel" of the 4th Circuit. A motion's panel is basically a group of three judges that are assigned on a monthly basis to dealing with the month's motions with particular cases.

yellowfin
12-31-2010, 9:32 AM
I'm guessing this will be good for the Woollard case on the way.

Crom
12-31-2010, 10:12 AM
Very interesting.

chesterthehero
12-31-2010, 10:22 AM
Lock and load! Tell my mom I said I love her after they burn my family and me alive in our house.

wtf dude way to bail on me... man.. i thought we had each others backs..

Patrick-2
12-31-2010, 10:30 AM
At first glance, this jumps out at me from the short synopsis posted:


My issue with the quote abive is that it appears that the court sees any conviction under §922(g)(9) as disqualifying the person as a "law abiding, responsible citizen" entitled to 2A protection. When the question is whether or not §922(g)(9) is constitutional in the first place, that means their statement is circular reasoning, for if 922(g)(9) is not constitutional, there is no disenfranchisement. But more importantly, it appears that the court's reasoning could be applied to any misdemeanor to show the person is not a "law abiding, responsible citizen", no matter how trivial or how long ago.

Bill, not the case.

The court ruled that the plaintiff in the case was actually due his 2A protection. They specifically said that.

What they did was say that the plaintiff did not fall under Heller's specific language about "lawful" people bearing arms for self defense. Heller drew a line, and this court found they plaintiff outside that line. BUT...they still said he deserved consideration under 2A, albeit at a lower level of scrutiny.

This is a big deal. By their reasoning, lawful people are afforded high protections.

On personal note, I hope this a**h*** not only has his guns taken away for life, but is also tossed into the pokey for a long time. Before everyone jumps down my throat...read what this guy did. You do not want him with guns.

But the fact the Fourth (including the Chief Judge) is giving him some benefit of the doubt signals good things for us.

anthonyca
12-31-2010, 1:07 PM
Bill, not the case.

The court ruled that the plaintiff in the case was actually due his 2A protection. They specifically said that.

What they did was say that the plaintiff did not fall under Heller's specific language about "lawful" people bearing arms for self defense. Heller drew a line, and this court found they plaintiff outside that line. BUT...they still said he deserved consideration under 2A, albeit at a lower level of scrutiny.

This is a big deal. By their reasoning, lawful people are afforded high protections.

On personal note, I hope this a**h*** not only has his guns taken away for life, but is also tossed into the pokey for a long time. Before everyone jumps down my throat...read what this guy did. You do not want him with guns.

But the fact the Fourth (including the Chief Judge) is giving him some benefit of the doubt signals good things for us.

I can't find more info on him. Was this a wobbler or was it plead down from a felony?

We need to get one of the 10s of thousands of people with 10 year or older misteomener convictions,who have never been in trouble before or since, who plead unknowing or under false advice. ( I know someone with court documents and lawyers letters proving this) to fight this.

Skoien (another bad client) was changed en banc to am unfavorable ruling. He was still on probation and had multiple arrests.

Skoien's wife was even arrested for DV on him and in the court recordings the judges thought that was hilarious, you can hear them laughing and commenting about it. A "crime" that is a laughing matter rusulting in a lifetime loss of a fundamental right.

Back to my point. The wrong plaintiffs are going to make problems for the rest of us.

Librarian
12-31-2010, 1:33 PM
I can't find more info on him. Was this a wobbler or was it plead down from a felony?


4th Circuit is West Virginia - I don't know whether they have that problem.
In October 2007, officers from the Kanawha County, West Virginia, Sheriff’s Department responded to a 911 call report- ing a domestic disturbance at Chester’s residence. Chester’s wife reported to the officers that Chester grabbed her throat and threatened to kill her after she caught him receiving the services of a prostitute on their property. In a subsequent search of the home, officers recovered a 12-gauge shotgun in the kitchen pantry and a 9mm handgun in the bedroom. Ches- ter admitted both firearms belonged to him.
In May 2008, as a result of this incident, Chester was indicted for possessing firearms after having been convicted "of a misdemeanor crime of domestic violence" in violation of 18 U.S.C. § 922(g)(9). The indictment charged that in Feb- ruary 2005, Chester had been convicted in Kanawha County Magistrate Court of domestic assault and battery, a misde- meanor offense under West Virginia law. See W. Va. Code § 61-2-28(a) and (b). Chester conceded that the 2005 domes- tic assault and battery offense qualified as a predicate "misde- meanor crime of domestic violence" under § 922(g)(9)

dfletcher
12-31-2010, 3:02 PM
OK, I think you all missed the important part here. Let's try again.

"Although Chester asserts his right to possess a firearm in his home for the purpose of self-defense, we believe his claim is not within the core right identified in Heller — the right of a law-abiding, responsible citizen to possess and carry a weapon for self-defense — by virtue of Chester’s criminal history as a domestic violence misdemeanant."

Note no "in the home" reference.




I noticed that - the word "carry" does seem to be popping up from time to time, it was in McDonald also I believe.

The decision's previous paragraph referenced "in the home" and it would have been a simple matter to write "carry a weapon 'in the home' for self defense" but they did not. It seems to me we should presume "carry" means outside the home.

Maybe creeping incrimentalism can sometimes be a good thing.

Patrick-2
01-01-2011, 6:45 AM
I noticed that - the word "carry" does seem to be popping up from time to time, it was in McDonald also I believe.

The decision's previous paragraph referenced "in the home" and it would have been a simple matter to write "carry a weapon 'in the home' for self defense" but they did not. It seems to me we should presume "carry" means outside the home.

Maybe creeping incrimentalism can sometimes be a good thing.

In the opening of the opinion they also defined Heller's core' right as "the right of a law-abiding, responsible citizen to possess and carry a weapon for self-defense" and there was no "in the home" anywhere within that context.

So yes, you read that right. This is why it could prove big news for cases in the Fourth Circuit - namely the SAF suits in MD and NC. It is hardly damning to the government's case, but it provides a nice wind at our back as we go further with these fights.

Mulay El Raisuli
01-01-2011, 2:32 PM
Actually, they have to:

We now grant panel rehearing, vacate our initial opinion and reissue our
decision to provide district courts in this Circuit guidance on
the framework for deciding Second Amendment challenges.

Consequences of a district court in the 4th circuit ignoring Chester would result in a per curiam vacate and remand by what's called the "motions panel" of the 4th Circuit. A motion's panel is basically a group of three judges that are assigned on a monthly basis to dealing with the month's motions with particular cases.


I'll take your word for this. INAL.


The Raisuli

BillCA
01-01-2011, 2:39 PM
Now that I've read more of the decision, it seems to be "fair" for our side.

It essentially says the gov't has to show evidence that the 2A right must be removed or restrained. The part I'm not fond of is the court declaring a person "not lawful" or "not law-abiding" because of a prior misdemeanor conviction. I understand their reasoning -- it goes back to the founding fathers saying those who "are peaceable citizens" could keep arms.

So the next question becomes what is a disqualifying misdemeanor and what kind of limits of time, quantity or type of crime control the use of the prior convictions? For example, if only violent misdemeanors qualify, does that mean your father's 1964 conviction for simple assault follows him all his life? How long does your non-violent failure to appear for a traffic ticket impact your rights? Do we only count violent misdemeanors or all of them? If only violent ones, then since many arrests for assault are often plead down to "disturbing the peace" which way will that disturbring the peace conviction fall?


From Calif DOJ (Rev. 11/2007):

*LIST OF PROHIBITING MISDEMEANORS*

*Firearm prohibitions for misdemeanor violations of the offenses listed below are generally for ten years *from the date of conviction, but the duration of each prohibition may vary. All statutory references are to the California Penal Code, unless otherwise indicated.
• Threatening public officers, employees, and school officials (§ 71.)
• Threatening certain public officers, appointees, judges, staff or their families with the intent and apparent ability to carry out the threat (§ 76.)
:
• Assault (§§ 240, 241.)
• Battery (§§ 242, 243.)
:
• Possession of [handgun] ammunition designed to penetrate metal or armor (§ 12320.)


I'm actually surprised at the number of disqualifying misdemeanors in California. It used to be quite small. My main issue is that it takes "very little" for the legislature to simply add dozens of other misdemeanors to the list. I can foresee a situation where after an election, the majority party loses by a landslide, then adds dozens of petty misdemeanors to the prohibition list in their lame duck session as a form of payback.

The other major issue here is that a lot of people get charged with a misdemeanor like assault or battery steming from defending themselves in some public fight. A friend of mine was so charged by SFPD after catching a pickpocket with his wallet. The dipstick tried to kick him, so he hit the guy three times. Police charged both of them, one with robbery and my friend with assault. The idiot judge claimed he had no right to defend "mere property" with "violent force" and allowed it to go forward. His choice: Pay a $250 fine or spend $2-$3k for a lawyer to fight it.

Given the above, if that conviction was 17 years ago, would the court consider him as a "not lawful" person? Why should the gov't enjoy a lower threshold of "proof" for disqualifying him and for any of us with a clean record?

HogKiller
01-01-2011, 2:45 PM
Yeah, what GrizzlyGuy said:

Also, I'd note that the reason the government didn't provide sufficient evidence may be that they can't come up with the necessary facts to support their contention. This may bode well for Chester's eventual triumph.

Was that 'come up with' or 'make up' the necessary facts. Given who we're dealing with here, I'd say the latter.

Patrick-2
01-02-2011, 6:35 AM
The line will be drawn The fact is it is tough - as it should be - to separate someone from their exercise of a fundamental right. I think the line for 2A is going to be drawn more liberally than for 1A, but it'll still be a tough one to cross. The judges in the Fourth made it clear: the "presumptively lawful" language in Heller is not a catch-all safe-harbor for laws the legislature wants to pass. They need to come up with damn strong rationale - with proof! - to make it stick.

I think folks sometimes confuse the legislative and the judicial and see it all as "the government". The people in Sacramento can pass all the hair-brained laws they want. In the end, it comes down to lines drawn elsewhere.

kcbrown
01-02-2011, 2:40 PM
The line will be drawn The fact is it is tough - as it should be - to separate someone from their exercise of a fundamental right. I think the line for 2A is going to be drawn more liberally than for 1A, but it'll still be a tough one to cross. The judges in the Fourth made it clear: the "presumptively lawful" language in Heller is not a catch-all safe-harbor for laws the legislature wants to pass. They need to come up with damn strong rationale - with proof! - to make it stick.


Yes, but the question in my mind is whether they can come up with such a rationale, applicable to the misdemeanor in question, and then later use that as precedent against other misdemeanors.

In other words, once the government manages to succeed in that endeavor once, does it become binding precedent, and therefore much easier for them to strip someone of their 2A rights in the event that someone committed some other misdemeanor? I strongly suspect the answer is "yes".

I'm not convinced that BillCA's concerns are ill-founded.

Patrick-2
01-03-2011, 5:27 AM
Yes, but the question in my mind is whether they can come up with such a rationale, applicable to the misdemeanor in question, and then later use that as precedent against other misdemeanors.

In other words, once the government manages to succeed in that endeavor once, does it become binding precedent, and therefore much easier for them to strip someone of their 2A rights in the event that someone committed some other misdemeanor? I strongly suspect the answer is "yes".

I'm not convinced that BillCA's concerns are ill-founded.

I agree with everything you say here. Of course they'll 'slipery-slope' this all the way they can.

At the end of the day we have to have hope the Supreme Court and the good lawyers who stand up for us will work to stop it. SCOTUS will ring on this soon. I think we may not like the answer, but neither will Bloomberg. It'll be a middling response. But until that happens, we wait.

I'll say this: I don't like these cases. Too soon and too risky. But criminal cases will go at their own pace, the nice strategies of others, be damned.

Theseus
01-03-2011, 5:54 AM
Hm. . . So this might allow a method to challenge my 10 year prohibition.

OleCuss
01-03-2011, 6:16 AM
OK, remember that I'm not even close to being a lawyer.

But as I read it, if the 4th Circuit's ruling stands, the State will have to show evidence that the prohibition is important to maintaining law and order.

My best guess is that means the government will have to put forth valid statistical studies showing that there is a high probability that the person convicted of that particular prohibiting offense will later engage in a violent crime during the prohibited time period.

If I'm correct as to the level of evidence, then overly aggressive charging/prosecution in the past would actually tend to work in our favor:

The friend who hit the pickpocket likely has never since engaged in a violent felony - his case would tend to sabotage the government's argument that those convicted of his offense are likely to commit future violent crimes.

Remember the surgeon who was charged for (IIRC) brandishing when all she did was to carry a BB gun with her when she went to talk to her neighbor? She'll likely never be involved in a truly violent crime - and that sabotages the government's case.

Theseus' case would tend to undermine the government case as well.

Actually, I'd bet that the list of cases which would undermine the government's prohibiting list would be extremely long and extensive. What's more, even if the government can demonstrate adequate evidence for a particular prohibiting offense, organizations such as CGF are likely to track the future performance of those prohibiting offenses and start picking them apart because of different charging/prosecution patterns from county to county and how those patterns change over time as well.

So if a prosecutor tends to over-charge they will be undermining the prohibiting status of the relevant prohibiting offense. You might start to see changes in what is prosecuted and in plea bargaining patterns just to avoid damaging the statewide prohibiting offense list. . .

Again, I'm not an expert in such matters but I see a lot of potential good from the 4th Circuit ruling should it be adopted by SCOTUS. Now don't get me wrong, I think I'd like a higher standard, but I think the 4th Circuit was at least intelligent and that it was advancing liberty in accordance with the Constitution.

FWIW.

Patrick-2
01-03-2011, 9:23 AM
I believe the government will likely go the way the Fourth steered them: proving that acts causing misdemeanor DV convictions would equate to a felony charge if they targeted an individual unknown to the attacker. That was part of the impetus of the Lautenburg Amendment and was cited in this case by both the majority and lone concurring opinion.

In this scenario, the only proof required is that DV charges are generally "softer" than those of non-domestic violence charges. I'm not expert in this regard, but it makes sense on the face of it. The acts Chester used in his crime should have been felonies...if some aspect of the law (familiarity between victim and attacker) caused them to be misdemeanors...there is the proof they need. It also proves the criminal justice system is really messed up when a violent crime is "less bad" because the woman you were kicking and beating while in a fetal position on the floor was "only" your daughter.

Yes, it would be better to "fix" the laws and get rid of the muddy waters regarding what is and is not a felony. But then what would all those lawyers do?

ALSystems
01-03-2011, 11:06 AM
I'm actually surprised at the number of disqualifying misdemeanors in California. It used to be quite small. My main issue is that it takes "very little" for the legislature to simply add dozens of other misdemeanors to the list. I can foresee a situation where after an election, the majority party loses by a landslide, then adds dozens of petty misdemeanors to the prohibition list in their lame duck session as a form of payback.

:iagree:
This is is exactly what I think will happen as well.

Mulay El Raisuli
01-04-2011, 7:52 AM
I agree with everything you say here. Of course they'll 'slipery-slope' this all the way they can.

At the end of the day we have to have hope the Supreme Court and the good lawyers who stand up for us will work to stop it. SCOTUS will ring on this soon. I think we may not like the answer, but neither will Bloomberg. It'll be a middling response. But until that happens, we wait.

I'll say this: I don't like these cases. Too soon and too risky. But criminal cases will go at their own pace, the nice strategies of others, be damned.


Absolutely true. Which is why I keep saying that the "nice strategy" should take into account the fact this sort of thing is going to happen. We can sit on the sidelines & bemoan the fact that guys like this are going to try anything they can to stay out of jail/prison, or we can take advantage of that fact.

Or, as I put it a while ago: do we emulate King Canute & (futilely) command the tide to not come in, or do we grab our surfboards?


I believe the government will likely go the way the Fourth steered them: proving that acts causing misdemeanor DV convictions would equate to a felony charge if they targeted an individual unknown to the attacker. That was part of the impetus of the Lautenburg Amendment and was cited in this case by both the majority and lone concurring opinion.

In this scenario, the only proof required is that DV charges are generally "softer" than those of non-domestic violence charges. I'm not expert in this regard, but it makes sense on the face of it. The acts Chester used in his crime should have been felonies...if some aspect of the law (familiarity between victim and attacker) caused them to be misdemeanors...there is the proof they need. It also proves the criminal justice system is really messed up when a violent crime is "less bad" because the woman you were kicking and beating while in a fetal position on the floor was "only" your daughter.

Yes, it would be better to "fix" the laws and get rid of the muddy waters regarding what is and is not a felony. But then what would all those lawyers do?


INAL, but I suspect that you're right. It IS messed up, but for a long while it really was "less bad" to beat your family members. That being the case, I agree with you & I see Lautenburg surviving. Which provides no help to the antis when it comes to 'ordinary' misdemeanors because the logic doesn't apply.

Or, rather, shouldn't apply.


The Raisuli

kcbrown
01-04-2011, 6:03 PM
INAL, but I suspect that you're right. It IS messed up, but for a long while it really was "less bad" to beat your family members. That being the case, I agree with you & I see Lautenburg surviving. Which provides no help to the antis when it comes to 'ordinary' misdemeanors because the logic doesn't apply.

Or, rather, shouldn't apply.


It shouldn't apply. But my skeptical nature forces me to strongly expect it will. I expect certain misdemeanors will be used to bootstrap RKBA restrictions against all misdemeanors through precedent.

Everything depends on how SCOTUS would view such shenanigans, but I fully expect the lower courts to engage in that if they possibly can.

hoffmang
01-05-2011, 12:50 AM
If the rights of the law abiding are subject to strict scrutiny while the non law abiding (and probably only the violent) are subject to intermediate scrutiny, I expect we'll end up with a very workable right to arms. That's the bottom line of Chester.

-Gene

cbn620
01-05-2011, 1:51 AM
I have to agree with BillCA about this issue of classification. I am concerned about some of the language regarding misdemeanants and law-abiding citizens.

Maybe I'm jumping the gun here, but what other rights can be lost by committing a misdemeanor? I don't follow the logic of calling it strict scrutiny if you can downgrade someone to intermediate scrutiny for stealing a candy bar.

There is some good and hopeful stuff in this opinion, but the above in particular stands out as being a little strange to me.

OleCuss
01-05-2011, 6:09 AM
I have to agree with BillCA about this issue of classification. I am concerned about some of the language regarding misdemeanants and law-abiding citizens.

Maybe I'm jumping the gun here, but what other rights can be lost by committing a misdemeanor? I don't follow the logic of calling it strict scrutiny if you can downgrade someone to intermediate scrutiny for stealing a candy bar.

There is some good and hopeful stuff in this opinion, but the above in particular stands out as being a little strange to me.

But this is where I go back to where the 4th Circuit said that the state had to have evidence in order to use an offense as prohibiting. They did not seem at all inclined to accept a good reason.

So how would a misdemeanor theft of a candy bar result in evidence that it should be a prohibiting offense? I'd think you'd have to show that a certain percentage (75-90%?) of people who convicted of the same offense in similar circumstances would commit a violent felony within the next 10 years (or maybe 20 years or whatever the prohibited time period might be).

That is not going to be an easy task.

Plus, let's say that the Stanislaus County prosecutor manages to get convictions for non-violent theft of a candy bar under a part of the penal code that makes it a prohibiting offense - whereas the rest of the state's prosecutors use that particular part of the penal code to convict people who really are violent. What you can then do is to use the statistics from Stanislaus County to show that a conviction under that part of the penal code should not be a prohibiting offense since it wouldn't pass intermediate scrutiny in Stanislaus County and therefore the rights of Stanislaus County residents are being violated wholesale by that state law.

So far as I can tell, should Chester be applied to California, a lot of the California prohibiting offenses will not be sustainable. The State almost certainly will not have the data/evidence to meet any reasonable application of intermediate scrutiny - and over time smart organizations are going to get others whacked as well due to uneven prosecutions/convictions.

If I'm wrong I'd love to know how intermediate scrutiny would really work in this case (but so far I've not seen an explano that seemed to fit any better than what I've put forth).

Patrick-2
01-05-2011, 6:56 AM
Intermediate is still tough.

Keep in mind that rationale used to diminish one right can be extended to diminish others. So that "candy bar" example you use could be extended into 1A, travel restrictions...voting rights?

We tend to focus the lens of these cases on 2A issues. But the topics and questions posed have wider consequence. Just what restrictions can society place on Chester, a violent and dangerous man convicted of a misdemeanor? More or less than Martha Stewart, a convicted felon?

Gura saw this coming in McDonald. He wanted to use PoI for a couple of reasons (intellectual honesty being in there somewhere, I suspect)...but he likes to trumpet the fact that many liberal/lefty academics signed on to his tactics. Hell, the NY Times even wrote an op-ed in favor of 2A incorporation, based on the wider implications his strategy had for civil rights jurisprudence overall.

Yeah, it scared some conservatives. Whatever. It's in the Constitution. I'll echo what we say to those who hate 2A: You don't like it...change it. The process is there and it works.

So take a wider view of these questions. If you start lowering the bar on the exercise of fundamental rights due to minor crimes, you disenfranchise a lot more people than guys with guns and too many parking tickets. There are entire classes of people (who are disproportionately imprisoned on 'lesser charges') that would take issue with this, and it would have nothing to do with guns.

Mulay El Raisuli
01-05-2011, 7:01 AM
Intermediate is still tough.

Keep in mind that rationale used to diminish one right can be extended to diminish others. So that "candy bar" example you use could be extended into 1A, travel restrictions...voting rights?

We tend to focus the lens of these cases on 2A issues. But the topics and questions posed have wider consequence. Just what restrictions can society place on Chester, a violent and dangerous man convicted of a misdemeanor? More or less than Martha Stewart, a convicted felon?

Gura saw this coming in McDonald. He wanted to use PoI for a couple of reasons (intellectual honesty being in there somewhere, I suspect)...but he likes to trumpet the fact that many liberal/lefty academics signed on to his tactics. Hell, the NY Times even wrote an op-ed in favor of 2A incorporation, based on the wider implications his strategy had for civil rights jurisprudence overall.

Yeah, it scared some conservatives. Whatever. It's in the Constitution. I'll echo what we say to those who hate 2A: You don't like it...change it. The process is there and it works.

So take a wider view of these questions. If you start lowering the bar on the exercise of fundamental rights due to minor crimes, you disenfranchise a lot more people than guys with guns and too many parking tickets. There are entire classes of people (who are disproportionately imprisoned on 'lesser charges') that would take issue with this, and it would have nothing to do with guns.


And this is the perfect counter to Gene's comments. I wouldn't be happy with a "workable" 2A if massive disenfranchisement is the price we pay.


The Raisuli

Patrick-2
01-05-2011, 7:07 AM
Actually, I was agreeing with Gene.

My point is that intermediate for 2A analysis is only going to happen with the dregs of society, because if it gets extended too far, the same logic could disenfranchise large numbers of people from other rights. Slippery slope and all.

Gray Peterson
01-05-2011, 10:59 AM
Absolutely true. Which is why I keep saying that the "nice strategy" should take into account the fact this sort of thing is going to happen. We can sit on the sidelines & bemoan the fact that guys like this are going to try anything they can to stay out of jail/prison, or we can take advantage of that fact.

Or, as I put it a while ago: do we emulate King Canute & (futilely) command the tide to not come in, or do we grab our surfboards?


I say we grab our surfboards. You'll see in a bit...

kcbrown
01-05-2011, 11:05 AM
Actually, I was agreeing with Gene.

My point is that intermediate for 2A analysis is only going to happen with the dregs of society, because if it gets extended too far, the same logic could disenfranchise large numbers of people from other rights. Slippery slope and all.

Yes, but remember that in the end, all of this action is happening in the courts on a case by case basis. Use of a given type of analysis with respect to one particular right is not binding with respect to the type of analysis used with respect to other rights. Were that not the case, there would already be no question at all that strict scrutiny would be required when dealing with the exercise of 2A rights for the core purpose of that right.

That kind of clarity simply isn't there, else Peruta would have been decided very differently.


The bottom line here is that there is literally nothing short of a direct SCOTUS decision preventing the courts from applying intermediate scrutiny to 2A cases when they feel like it. They know that such application, even to exercise of the right by the law-abiding, does not imply that it can be done with respect to other rights, because other rights already have jurisprudence built up for them that says otherwise.

These games are what you get when you suddenly get a "brand new" right. The fact that RKBA has been specifically enumerated in the Constitution for the past 230 years, and that the works of the authors of the Constitution make it plain that they intended it to be an individually exercisable right, merely makes plain the depths to which this nation has fallen.

NightOwl
01-05-2011, 12:22 PM
If the rights of the law abiding are subject to strict scrutiny while the non law abiding (and probably only the violent) are subject to intermediate scrutiny, I expect we'll end up with a very workable right to arms. That's the bottom line of Chester.

-Gene

The problem with this, as I see it, is that with more and more laws passed every year it becomes a point where nobody is law abiding, even if they try to be. People commit one obvious crime, but when they get to court they have a list of 10 others that they're also charged with, motivating people to plea out for fear of even half of the charges sticking in our current guilty-till-proven-innocent criminal court system.

Also, I'm still concerned that the bar dropped from felony to misdemeanor.

I hope that your optimism proves to be correct.

GuyW
01-05-2011, 4:44 PM
The problem with this, as I see it, is that with more and more laws passed every year it becomes a point where nobody is law abiding, even if they try to be. People commit one obvious crime, but when they get to court they have a list of 10 others that they're also charged with, motivating people to plea out for fear of even half of the charges sticking in our current guilty-till-proven-innocent criminal court system.



“I'm not urging you to break the law. You're already breaking it just by living. If you value personal freedom, you're probably breaking laws and regulations more often than Bill Clinton breaks wind.”
-Claire Wolfe-

“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.”
-Ayn Rand- in The Nature of Government

Gray Peterson
01-05-2011, 4:51 PM
The problem with this, as I see it, is that with more and more laws passed every year it becomes a point where nobody is law abiding, even if they try to be. People commit one obvious crime, but when they get to court they have a list of 10 others that they're also charged with, motivating people to plea out for fear of even half of the charges sticking in our current guilty-till-proven-innocent criminal court system.

Also, I'm still concerned that the bar dropped from felony to misdemeanor.

I hope that your optimism proves to be correct.

What Gene is trying to explain to you is that the courts will look at the underlying conduct in terms of as-applied challenges to the law.

Very soon, you will understand why this is particularly important: The days of being able to take away rights from someone on the pure basis of what they are convicted of in the past will be soon at an end, and you will see why.

kcbrown
01-05-2011, 4:55 PM
What Gene is trying to explain to you is that the courts will look at the underlying conduct in terms of as-applied challenges to the law.

Very soon, you will understand why this is particularly important: The days of being able to take away rights from someone on the pure basis of what they are convicted of in the past will be soon at an end, and you will see why.

You guys are making it very hard for me to remain a skeptic. :D

I must say, I'm not used to that at all...

Gray Peterson
01-05-2011, 5:16 PM
You guys are making it very hard for me to remain a skeptic. :D

I must say, I'm not used to that at all...

I'm good at it. Let's go into a further detail as to why categorical denials of rights are unconstitutional on the pure basis of "you were convicted of a felony".

Before 2003, about 13 states and the United States military had laws on the books which prohibited, how shall we say, certain forms of intimate conduct. Many of these laws had felony consequences.

In 2003, Lawrence v. Texas struck down as unconstitutional laws which regulated said intimate contact with consenting adults.

We have an unknown number of people who were convicted pre-Lawrence of these crimes which were declared unconstitutional in Lawrence. Some of these states (and the military) disallow expungement or findings of factual innocence because of the form of "crime" the conduct was.

How are these people supposed to be able to bear arms, despite their conduct being protected by the Lawrence test? Think about it.....(just to be clear, this is from my own knowledge and not from any known CGF strategy, but from my own knowledge of laws effecting LGBT Americans....)

press1280
01-05-2011, 5:53 PM
If the rights of the law abiding are subject to strict scrutiny while the non law abiding (and probably only the violent) are subject to intermediate scrutiny, I expect we'll end up with a very workable right to arms. That's the bottom line of Chester.

-Gene

Just wondering what would be considered the border between intermediate and strict under Chester? Could a state prohibit ownership or CCW for someone for getting into domestic disputes while at the same time allowing someone to be a police officer who was guilty of the exact same thing(or worse)?

hoffmang
01-05-2011, 9:28 PM
Just wondering what would be considered the border between intermediate and strict under Chester? Could a state prohibit ownership or CCW for someone for getting into domestic disputes while at the same time allowing someone to be a police officer who was guilty of the exact same thing(or worse)?

Police officers are special and will remain so. It has to do with the institution of the courts and nothing more than that.

-Gene

BillCA
01-06-2011, 11:46 AM
Ah, I are illuminated now.
At least I think so. Let's see if I have this correct.

Currently in CA, if you have any conviction for "Assault" under PC §240 or 241, you are prohibited for 10 years from owning a firearm. However, a conviction of a "graffiti" crime under §594 does not trigger a prohibition. Both are misdemeanors.

Thus;
(a) If the legislature adds §594 to the list of disabiling misdemeanors, it must show evidence to the courts that based on the actions of that misdemeanor the defendant is highly likely to commit a violent crime with a gun in the [relatively] near future. Otherwise, there is no substantial relationship between graffiti crimes and gun crimes and the prohibition is not constitutional.

(b) Existing laws that trigger the disability can be challenged and the state forced to show evidence - not antecdotes - that the behavior is substantially likely to lead to a crime involving a firearm.

(c) Convictions under triggering misdemeanor sections are challengeable in court based on the circumstances of the offense. For instance, under §241(c), assault on a police, fireman or paramedic carries a fine and a one-year jail sentence. However, I know a person who was charged with assault on both fire & paramedics after an auto accident in which he was disoriented. The case should've been dropped but the prosecutor had a shiny new law to break in and this was his chance.

At question is where the court draws the line between "likely" and "not likely". Will the number of misdemeanor offenders who later commit a "gun crime" need to be only 51%? 66%? 75%? If that bar is lower, that raises the question about the 25%-49% who never graduate to harsher violent crimes.

Opinion
Police often view misdemeanors as petty crimes and can often "over charge" participants at the scene. What starts off as an assault by one person ends up with the aggressor getting a bloody nose/split lip and police charging the victim with Battery while charging the aggressor with Assault. Now the victim must spend $2000-$5000 to defend against a maximum $1,000 fine and the gun prohibition. In many cases, the court will fine only $250-$500 for minor events.

As government budgets tighten even more in the future, there will be increasing pressure on police to clear up misdemeanor cases quickly. Pressure will also be put on the police to write up charges on all parties where there is evidence such charges are possible¹. With scant investigations conducted and overbroad charges written as a revenue source, more people can be restricted in their 2A rights (for 10 years initially). This could mean an officer responding to a theft case finds the theft victim apprehended the perpetrator, who complains of minor injuries, and result in a misdemeanor theft charge AND an assault charge on the theft victim. This may be especially true in situations where the officer has to take the time to transport a misdemeanant to jail, which takes up time.

Lastly, I've come to dislike this whole misdemeanor concept because it centers on removing a Constitutional right based on the probability that someone might commit a more serious crime. One of these so-called disabling crimes is Threatening a public officer or school officials (§ 71). Given the stupidity displayed by some public officers and school officials in this state², the list of prohibited people could be quite large.

The probability shown by the State should be closer to certainty instead of just a mere likelihood. And such prohibitions for a first offense should almost never be used without some evidence the person is prone to serious violence.


¹ We've seen/heard some evidence of this already. Police no longer show up to take burglary reports, respond to burglar alarms, auto thefts, petty property thefts, etc. Now there is evidence to show that victims of crimes are sometimes issued citations for misdemeanors and traffic infractions trying to apprehend or avoid the perpetrator.
² Some years ago when a school suspended my nephew for carrying Chapstick because it's label said "medicated", my father told the school's Dean of boys he was being a jerk and added "I oughta kick your *** up between your shoulder blades for being a role model of stupidity". Today, that could be charged as a "threat".

ALSystems
01-07-2011, 11:34 AM
Ah, I are illuminated now.
At least I think so. Let's see if I have this correct.

Currently in CA, if you have any conviction for "Assault" under PC §240 or 241, you are prohibited for 10 years from owning a firearm. However, a conviction of a "graffiti" crime under §594 does not trigger a prohibition. Both are misdemeanors.

Thus;
(a) If the legislature adds §594 to the list of disabiling misdemeanors, it must show evidence to the courts that based on the actions of that misdemeanor the defendant is highly likely to commit a violent crime with a gun in the [relatively] near future. Otherwise, there is no substantial relationship between graffiti crimes and gun crimes and the prohibition is not constitutional.

(b) Existing laws that trigger the disability can be challenged and the state forced to show evidence - not antecdotes - that the behavior is substantially likely to lead to a crime involving a firearm.

(c) Convictions under triggering misdemeanor sections are challengeable in court based on the circumstances of the offense. For instance, under §241(c), assault on a police, fireman or paramedic carries a fine and a one-year jail sentence. However, I know a person who was charged with assault on both fire & paramedics after an auto accident in which he was disoriented. The case should've been dropped but the prosecutor had a shiny new law to break in and this was his chance.

At question is where the court draws the line between "likely" and "not likely". Will the number of misdemeanor offenders who later commit a "gun crime" need to be only 51%? 66%? 75%? If that bar is lower, that raises the question about the 25%-49% who never graduate to harsher violent crimes.

Opinion
Police often view misdemeanors as petty crimes and can often "over charge" participants at the scene. What starts off as an assault by one person ends up with the aggressor getting a bloody nose/split lip and police charging the victim with Battery while charging the aggressor with Assault. Now the victim must spend $2000-$5000 to defend against a maximum $1,000 fine and the gun prohibition. In many cases, the court will fine only $250-$500 for minor events.

As government budgets tighten even more in the future, there will be increasing pressure on police to clear up misdemeanor cases quickly. Pressure will also be put on the police to write up charges on all parties where there is evidence such charges are possible¹. With scant investigations conducted and overbroad charges written as a revenue source, more people can be restricted in their 2A rights (for 10 years initially). This could mean an officer responding to a theft case finds the theft victim apprehended the perpetrator, who complains of minor injuries, and result in a misdemeanor theft charge AND an assault charge on the theft victim. This may be especially true in situations where the officer has to take the time to transport a misdemeanant to jail, which takes up time.

Lastly, I've come to dislike this whole misdemeanor concept because it centers on removing a Constitutional right based on the probability that someone might commit a more serious crime. One of these so-called disabling crimes is Threatening a public officer or school officials (§ 71). Given the stupidity displayed by some public officers and school officials in this state², the list of prohibited people could be quite large.

The probability shown by the State should be closer to certainty instead of just a mere likelihood. And such prohibitions for a first offense should almost never be used without some evidence the person is prone to serious violence.


¹ We've seen/heard some evidence of this already. Police no longer show up to take burglary reports, respond to burglar alarms, auto thefts, petty property thefts, etc. Now there is evidence to show that victims of crimes are sometimes issued citations for misdemeanors and traffic infractions trying to apprehend or avoid the perpetrator.
² Some years ago when a school suspended my nephew for carrying Chapstick because it's label said "medicated", my father told the school's Dean of boys he was being a jerk and added "I oughta kick your *** up between your shoulder blades for being a role model of stupidity". Today, that could be charged as a "threat".
Very well said. I agree with you opinions though they are disturbing.

As far as the California Legislature adding to the list of disabiling misdemeanors. Can they do that and wait for court challenges. Or do they have show evidence of the relationship between the misdemeanor and gun crimes before they can add it.

I am disturbed by a number of threads, I've read here that indicate if you defend yourself from a thief or worse chase him, you'll likely be in more legal trouble than the thief. You might as well have California posting signs such as:

"Victum Zone
Rob with impunity"

BillCA
01-08-2011, 4:24 AM
Very well said. I agree with you opinions though they are disturbing.

As far as the California Legislature adding to the list of disabiling misdemeanors. Can they do that and wait for court challenges. Or do they have show evidence of the relationship between the misdemeanor and gun crimes before they can add it.

I am disturbed by a number of threads, I've read here that indicate if you defend yourself from a thief or worse chase him, you'll likely be in more legal trouble than the thief. You might as well have California posting signs such as:

"Victum Zone
Rob with impunity"

Governments frequently pass laws that seem like a Good Idea™ to solve a problem which are later found to be unconstitutional. We used to have laws which codified "civil behavior" in publc spaces by prohibiting swearing in front of women & children. These were later struck down as 1A violations. So, yes, an outgoing legislature could pass a package of laws in their lame-duck session knowing that many or most would fail scrutiny, but they would stand until someone with $tanding challenged them.

In California, you may defend yourself to repel an attack(er) but once the immediate danger is passed, the courts consider the defense "complete". Pursuit of the person then becomes an aggressive act, whether your do it in corpus or send a bullet in pursuit.

The problem becomes one of some interpretation, especially if there is any physical confrontation before the thug flees.

Mulay El Raisuli
01-14-2011, 9:20 PM
Actually, I was agreeing with Gene.

My point is that intermediate for 2A analysis is only going to happen with the dregs of society, because if it gets extended too far, the same logic could disenfranchise large numbers of people from other rights. Slippery slope and all.


The problem is that the "slippery slope" starts with defining anyone as the "dregs."


I say we grab our surfboards. You'll see in a bit...


I'm actually giddy with anticipation.


The Raisuli

jpigeon
01-14-2011, 11:38 PM
Lock and load! Tell my mom I said I love her after they burn my family and me alive in our house.

Calm down Chester:) I think he's watching too many movies...

Gray Peterson
01-15-2011, 4:37 AM
I'm actually giddy with anticipation.


The Raisuli

See the Richards MSJ filing, and see my reply brief to response by the Colorado Attorney General in my case, Peterson v. LaCabe. Chester is having a great effect already....Law abiding citizen=strict scrutiny is quite powerful....

press1280
01-15-2011, 6:09 AM
See the Richards MSJ filing, and see my reply brief to response by the Colorado Attorney General in my case, Peterson v. LaCabe. Chester is having a great effect already....Law abiding citizen=strict scrutiny is quite powerful....

And the 4th Circuit is where 2 of SAF's cases are right now(District Level). That would seem to me strict scrutiny applies in both since the Plantiffs are NOT like Chester.

Patrick-2
01-15-2011, 7:07 AM
And the 4th Circuit is where 2 of SAF's cases are right now(District Level). That would seem to me strict scrutiny applies in both since the Plantiffs are NOT like Chester.

Yes.

Even though in the MD case the SAF has requested a categorical analysis (not scrutiny based), it will be of big benefit in the District Courts because they love that rule book and because "strict" implies 'fundamental' on a categorical basis.

In my eyes, the bigger benefit seems the combination of two Chester findings. Specifically, the multiplicative effect of the application of fundamental (strict) dogma to what Chester defined as the right recognized under Heller: "the right to bear and carry arms for self defense."

There was no "in the home" there. The anti-rights crowd have recently forwarded a theory that even if the right to bear arms extends outside the home, it is subject to a less-than-fundamental analysis. Chester appears to have pulled that rug right out from under them, at least in the Fourth.

We theorize over in MD that our AG is (was) going to approach their defense of 'good and substantial cause' using a hybrid of the "in the home" and "lesser analysis" argument. Oops. Now he appears stuck with quoting other Districts and maybe a circuit or two that never analyzed Heller in light of lawful people. Same goes for the North Carolina ban on arms when it snows/rains/gets windy/the-governor-has-a-bad-hair-day.

kcbrown
01-15-2011, 5:26 PM
Police officers are special and will remain so. It has to do with the institution of the courts and nothing more than that.

-Gene

Yes, and that's true of retired as well as active police officers. This is why EP suits on laws which treat police officers as special will always fall on their face, regardless of whether or not a fundamental right is involved.

Such laws will have to be attacked on the basis of the limits they place on normal law-abiding citizens, not on the basis of equal protection.

hoffmang
01-15-2011, 8:20 PM
Yes, and that's true of retired as well as active police officers. This is why EP suits on laws which treat police officers as special will always fall on their face, regardless of whether or not a fundamental right is involved.

Actually no. It is specifically the law of the 9th Circuit that retired police officers are equal to civillians as per Silveira v. Lockyer.

-Gene

press1280
01-16-2011, 6:16 AM
Actually no. It is specifically the law of the 9th Circuit that retired police officers are equal to civillians as per Silveira v. Lockyer.

-Gene

I know NJ has an exception for retired officers to get a CCW without having to prove a "need". Do any other states have this(wholly separate from LEOSA)? Or is it pretty much on a wink and a nod, so a retired officer's "need" somehow magically always passes?

Patrick-2
01-16-2011, 7:17 AM
I know NJ has an exception for retired officers to get a CCW without having to prove a "need". Do any other states have this(wholly separate from LEOSA)? Or is it pretty much on a wink and a nod, so a retired officer's "need" somehow magically always passes?

Not in MD. They get no play here. Not even retired State Police...and it's the State Police who decide eligibility. I think a retired Deputy is a plaintiff in a state suit challenging good and substantial. He had a permit, then they yanked it.

I'm sure we could find a few exceptions, but as a rule they don't get permits, either. In any case it'd a useless comparison and a losing fight.

Kharn
01-16-2011, 9:21 AM
Patrick-2:
MSP's policy manual (as of ~2002) stated retired MD officers were to receive consideration far more favorable than private citizens. See here: MD CCW manual (http://www.mdshooters.com/showthread.php?t=46744)

They receive:
1. Automatic issuance as "the nature of a police officer's employment is a good and substantial reason to apply for a handgun permit"
2. Temporary permit issued upon application in person or within 48 hours if submitted by mail
3. Expired licenses treated as a renewal (instead of a new application as peons experience)
4. They receive "expedited processing"

MD gives police officers a lot of accomodations they deny to federal special police officers (who at the time could only carry on duty as part of their federal service, MD required they qualify as if they were civilians with death threats), correctional officers (yeap, death threats required), bailiffs (yet again, death threats required) and regular citizens.

It seems like the MSP really likes police, and doesn't like anyone else with a badge and a gun...

Apocalypsenerd
01-16-2011, 10:13 AM
As far as Police Officer status is concerned, what's to stop someone from buying a township and "hiring" a police force?

Patrick-2
01-16-2011, 11:09 AM
Patrick-2:
MSP's policy manual (as of ~2002) stated retired MD officers were to receive consideration far more favorable than private citizens. See here: MD CCW manual (http://www.mdshooters.com/showthread.php?t=46744)

They receive:
1. Automatic issuance as "the nature of a police officer's employment is a good and substantial reason to apply for a handgun permit"
2. Temporary permit issued upon application in person or within 48 hours if submitted by mail
3. Expired licenses treated as a renewal (instead of a new application as peons experience)
4. They receive "expedited processing"

MD gives police officers a lot of accomodations they deny to federal special police officers (who at the time could only carry on duty as part of their federal service, MD required they qualify as if they were civilians with death threats), correctional officers (yeap, death threats required), bailiffs (yet again, death threats required) and regular citizens.

It seems like the MSP really likes police, and doesn't like anyone else with a badge and a gun...

Got it. Thanks for the correction.

I'll need to go back and do some research into which case has the retired LEO suing the state. Perhaps he was federal and I simply assumed it applied to all.

kcbrown
01-16-2011, 4:31 PM
Actually no. It is specifically the law of the 9th Circuit that retired police officers are equal to civillians as per Silveira v. Lockyer.


I wasn't aware of that, and that causes what you said to make a whole lot of sense now.

But I still don't think it'll work. The 9th Circuit may have, in one case and for one specific circumstance, ruled that retired police officers and civilians are equivalent, but that doesn't mean that it'll work out that way in practice in cases brought before lower courts, nor does it mean that the 9th Circuit will hold that view with respect to other 2A challenges.

Silveira only says that retired police officers are equivalent to civilians with respect to the "assault weapons" ban, and only because the court was unable to find a "rational basis" to support the retired police officer exemption in the law. That the state was unable to supply a persuasive "rational basis" for the exemption at that time doesn't imply it will never be able to do so, though it means the probability is relatively low. The "retired police officers == civilians" statement in Silveira was not a general statement, but a very specifically targeted one, and again only because they were unable to find a "rational basis" for the retired police officer exemption in the AWCA.

Finally, since retired police officers who retain their "assault weapons" after retirement are un-prosecutable, and since the exemption in the law has already been struck, there is no equal protection claim to be brought before the court with respect to that issue. The only equal protection claim to be brought would be against active police officers, and that one has already been addressed and dismissed by the court in Silveira in a manner that is independent of their "collective rights" 2A analysis. That means that police officers will continue to retain their assault weapons after retirement while normal civilians will continue to be subject to the AWCA, and the only possible action left to take is a direct challenge to the AWCA since Heller and McDonald now give civilian plaintiffs standing to challenge it directly on 2A grounds.

All of which is to say: there is no equal protection challenge to be found here in my neophyte view.

hoffmang
01-16-2011, 4:58 PM
But I still don't think it'll work. The 9th Circuit may have, in one case and for one specific circumstance, ruled that retired police officers and civilians are equivalent, but that doesn't mean that it'll work out that way in practice in cases brought before lower courts, nor does it mean that the 9th Circuit will hold that view with respect to other 2A challenges.
It's a valid and binding holding of the Ninth Circuit Court of Appeals. All District Courts in CA9 and any 3 judge panel is bound by it. You should read it (http://scholar.google.com/scholar_case?case=13948185712203065755).

The only way for it to be overturned is to have it lose in District and on appeal and then be either taken en-banc or have cert granted by the Supreme Court.

-Gene

kcbrown
01-16-2011, 5:29 PM
It's a valid and binding holding of the Ninth Circuit Court of Appeals. All District Courts in CA9 and any 3 judge panel is bound by it. You should read it (http://scholar.google.com/scholar_case?case=13948185712203065755).


I did read it.

The Supreme Court's holding and reasoning in Heller and McDonald is binding against the lower courts as well, but that didn't prevent the district court from ruling the way it did in Peruta.

Lower courts will rule as they please, even in the face of guidance from higher courts. Peruta is proof.

Furthermore, a strict reading of Silveira says that the 9th's holding is applicable only to the AWCA. If we insist on extending the holding beyond that, it says that retired police officers can be treated differently than other citizens if there is a rational basis for doing so. But even that is not a direct ruling -- it is an inference. There is nothing in the ruling itself that directly says that retired police officers shall be treated the same as normal citizens in the general case. Silveira is silent on the issue of treatment of retired police officers in the general case.



The only way for it to be overturned is to have it lose in District and on appeal and then be either taken en-banc or have cert granted by the Supreme Court.
Absent dicta from a higher court, what says that lower courts are not perfectly capable of reversing themselves with respect to their own prior rulings? Most certainly, the Supreme Court is capable of that with respect to their own rulings, so absent some strictly enforced rule that says lower courts can't reverse themselves, I see no reason for Silveira's holding with respect to retired police officers to be an exception when it comes to how the 9th can rule on that issue in a future case.

hoffmang
01-16-2011, 6:05 PM
I did read it.

The Supreme Court's holding and reasoning in Heller and McDonald is binding against the lower courts as well, but that didn't prevent the district court from ruling the way it did in Peruta.


Sigh. No.

Silveira is directly on point about retired law enforcement under equal protections. Peruta isn't as directly on point.

You keep missing the nuance of when the law gets treated like code and when it doesn't. Here, as to retired LEO, it does. If you don't believe me you can read the CA AG opinion about retiring LEO and AW possession.

-Gene

kcbrown
01-16-2011, 6:31 PM
Sigh. No.

Silveira is directly on point about retired law enforcement under equal protections. Peruta isn't as directly on point.


That may be, but my point stands: the district court outright ignored the guidance of the Supreme Court in Peruta. It hardly gets any more blatant than that, and precious little could make my point more strongly.



You keep missing the nuance of when the law gets treated like code and when it doesn't. Here, as to retired LEO, it does. If you don't believe me you can read the CA AG opinion about retiring LEO and AW possession.
I am deeply skeptical that there is any "nuance" as to when the law gets treated like code and when it doesn't. The law gets treated like code when the court in question wants to treat it like code, and gets treated otherwise when the court wants to treat it otherwise.

Which is to say: how the law gets treated depends on the result the court wishes to obtain.

The CA AG opinion is just an opinion. It may carry some weight in court cases revolving around the issue it addresses, but it does not carry any weight with respect to future AG actions. The AG can choose to issue a later opinion contradicting the prior one, if doing so would prove politically or judicially advantageous. It is, after all, just an opinion, and opinions shift like the wind.


As for whether retired LEOs are to be treated the same as ordinary citizens, Silveira quite clearly lays out that they can be treated differently if there is at least a rational basis for doing so. That is, after all, the method the court used in their decision to strike the retired LEO exemption from the AWCA.

To somehow infer from the above that retired LEOs are equal to normal citizens in all ways and all circumstances is quite a stretch. In fact, I would argue that the above quite clearly says that they are not equal, simply because the court went to the trouble to apply a rational basis test instead of outright striking the exemption on the basis of the equality of a retired LEO to a normal citizen.

press1280
01-17-2011, 3:17 AM
As far as retired LEOs with CCWs, that should be an easy one under Silveira, at least if retired LEOs are given a shall-issue format for application. The state would probably argue that LEOs run into all sorts of unsavory characters during the time they serve. That's true for many, but then what about the ones who spend their whole careers in tiny crime free towns? They're certainly not going to be targeted, so the state's argument doesn't hold. Silveira also mentioned that a parallel federal statute(in this case it would be LEOSA) doesn't validate the retired LEO exception.
I guess we're all just speculating since it seems none of the cases out there are even going at this angle.

Patrick-2
01-17-2011, 7:20 AM
And these types of Due Process attacks - where you try to pit one group against another - scream "losing case".

What people seem to forget when it comes to these cases is that for you to win you have to lose: the only way you can win CCW/AW/whatever in these cases is to argue that "group X" (political donors, retired LEOs, whatever) are being treated as a special class. Fine so far (but nearly impossible to prove).

But to "win", you need to accept that the state has the wisdom to decide those who exercise the right. The entire argument is based on the idea that your 'good cause' is as good as someone else's. Your entire argument is based on that fallacy - that the state gets to choose winners and losers. So even if you "win"...you lose because you have conceded your rights to the state.

Such cases are full of fail. There should be mandatory beatings for those who bring them. :)

dantodd
01-17-2011, 7:51 AM
As far as retired LEOs with CCWs, that should be an easy one under Silveira, at least if retired LEOs are given a shall-issue format for application. The state would probably argue that LEOs run into all sorts of unsavory characters during the time they serve. That's true for many, but then what about the ones who spend their whole careers in tiny crime free towns? They're certainly not going to be targeted, so the state's argument doesn't hold. Silveira also mentioned that a parallel federal statute(in this case it would be LEOSA) doesn't validate the retired LEO exception.
I guess we're all just speculating since it seems none of the cases out there are even going at this angle.

Also, there are any number of officers who retire to places far from where they served and are very unlikely to run into their previous adversaries.

wildhawker
01-17-2011, 11:28 AM
Patrick,

I would argue that there are times and places where EP or DP can be effective in achieving a strategic end.

-Brandon

Patrick-2
01-17-2011, 7:18 PM
Patrick,

I would argue that there are times and places where EP or DP can be effective in achieving a strategic end.

-Brandon

Like McDonald?

Absolutely agree. Due Process has its place, if only because it is the only way we can challenge via the 14th. It's a door kicked open.

I just have suspicion of suits that try to compare Bob and Jim's pleading to a state for rights. Not just on philosophical grounds, but on issues of legal footing. No matter what happens you are accepting the role of the state and fortifying their role in determining cause.

It doesn't matter who donated to whom...it's all bad. You can only appeal such a loss as far as the courts let you argue that Bob and you shared the same 'cause'. So no matter how far you take it, you are still looking at a lost argument.

Few such cases can win. I know of only one recently and that was so egregious it was silly.

Apocalypsenerd
01-17-2011, 7:52 PM
Someone look into the township thing? has that been discussed? Is it a possible way around a lot of the CA laws?

hoffmang
01-17-2011, 7:57 PM
And these types of Due Process attacks - where you try to pit one group against another - scream "losing case".


In California making LEOs unspecial via the courts is really about the politics of future gun control. When the cops were peeled off, bad crap like the Roster, AW ban, Ammo shipping ban, etc, happen. Forcing cops into the pro gun tent by keeping them out of the special category is a vaccine for future fights. Especially because PORAC, etc., have more political clout than we simple gun owners.

Don't forget that judges don't like marshalls/sheriffs/LEOs who they work with to be personally pissed off at them...

-Gene

kcbrown
01-17-2011, 8:16 PM
In California making LEOs unspecial via the courts is really about the politics of future gun control.

It's difficult enough to make retired LEOs unspecial.

But active LEOs?

I can't see that happening any time in any of our lifetimes except maybe in the event of violent revolution (which would almost certainly be worse than merely staying the course).


ETA: You're absolutely right about the need to do this. But I'm extremely skeptical that it can be done to anywhere near the degree necessary.

hoffmang
01-17-2011, 8:52 PM
But I'm extremely skeptical

QFT.

-Gene

kcbrown
01-17-2011, 9:10 PM
QFT.


LOL! :smilielol5:

Patrick-2
01-18-2011, 5:13 AM
In California making LEOs unspecial via the courts is really about the politics of future gun control. When the cops were peeled off, bad crap like the Roster, AW ban, Ammo shipping ban, etc, happen. Forcing cops into the pro gun tent by keeping them out of the special category is a vaccine for future fights. Especially because PORAC, etc., have more political clout than we simple gun owners.

Don't forget that judges don't like marshalls/sheriffs/LEOs who they work with to be personally pissed off at them...

-Gene

That makes sense, where a law specifically calls out one class over another. This is classic Due Process. Consider me schooled.

I may have muddled things a bit in my more narrow view of the question. I was thinking more along the lines of Peruta...where a claim is made that an entity (Sheriff) is granting disproportionate consideration to a group not defined by law (like donors). It's such a subjective animal, and the argument (by itself) does not challenge the divinity of the king, so to speak.

I say let them all eat cake. Or something.

hoffmang
01-18-2011, 12:14 PM
I was thinking more along the lines of Peruta...where a claim is made that an entity (Sheriff) is granting disproportionate consideration to a group not defined by law (like donors). It's such a subjective animal, and the argument (by itself) does not challenge the divinity of the king, so to speak.

Completely concur. I think there is a place for straight up Equal Protections carry license issuance suits, but those should be based on actual similar fact patterns (same good cause statements, etc.) and not be intermixed with an otherwise 2A case.

-Gene

wildhawker
01-18-2011, 12:18 PM
Completely concur. I think there is a place for straight up Equal Protections carry license issuance suits, but those should be based on actual similar fact patterns (same good cause statements, etc.) and not be intermixed with an otherwise 2A case.

-Gene

To anyone reading and wondering what makes for an appropriate EP challenge, the key lies in the underlined.

kcbrown
01-18-2011, 5:03 PM
Completely concur. I think there is a place for straight up Equal Protections carry license issuance suits, but those should be based on actual similar fact patterns (same good cause statements, etc.) and not be intermixed with an otherwise 2A case.


So how would this work with respect to LEOs (active or retired)? Wouldn't the fact patterns alone always be markedly different between LEOs (even if retired) and non-LEOs?

hoffmang
01-18-2011, 7:39 PM
So how would this work with respect to LEOs (active or retired)? Wouldn't the fact patterns alone always be markedly different between LEOs (even if retired) and non-LEOs?

They don't need good cause statements due to LEOSA. It's also hard to challenge LEOSA under an EP challenge as there are colorable arguments as to how a retired LEO is different from a "target of threats" perspective.

-Gene

kcbrown
01-18-2011, 10:39 PM
They don't need good cause statements due to LEOSA. It's also hard to challenge LEOSA under an EP challenge as there are colorable arguments as to how a retired LEO is different from a "target of threats" perspective.


I was thinking in the more general case, but the above is exactly what I was thinking.

Under what conditions, given the generally large difference in fact patterns between LEOs and ordinary citizens, could an EP challenge be mounted against any 2A-related law that explicitly distinguishes between LEOs and ordinary citizens?

You say (or, at least, hint) that we need to put LEOs and ordinary citizens on equal footing in the courts in order to change the political winds of gun control, but given the generally large difference in fact patterns between the two, how in the world can that possibly be accomplished in the general case? I just don't see it. :(

Retired LEOs need only meet rational basis for justification of laws which place them above ordinary citizens, thanks to Silveira, and that can be used to justify very nearly any law you care to name. That they failed to do so in Silveira is, frankly, rather astonishing to me.

emcon5
01-18-2011, 10:41 PM
It's a valid and binding holding of the Ninth Circuit Court of Appeals. All District Courts in CA9 and any 3 judge panel is bound by it. You should read it (http://scholar.google.com/scholar_case?case=13948185712203065755).

The only way for it to be overturned is to have it lose in District and on appeal and then be either taken en-banc or have cert granted by the Supreme Court.

-GeneInteresting read, especially the part that was entirely contradicted by Heller and McDonald.

Kind of makes me wonder how that case would go today.