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View Full Version : US v Weaver et al (US Dist Ct West Virginia)


Librarian
03-07-2012, 1:06 PM
Not anything explosive, and pretty narrow, but another opinion affirming 2A protects outside the home, not just in the home.

Volokh post here (http://volokh.com/2012/03/07/district-court-concludes-second-amendment-secures-right-to-carry-but-not-while-being-employed-for-a-felon/), opinion here (http://www.archive.org/download/gov.uscourts.wvsd.63229/gov.uscourts.wvsd.63229.2906.0.pdf).

While it is true that the Fourth Circuit has so far stopped short of expressly recognizing a Second Amendment right to keep and bear arms outside the home,5 this Court has no such hesitation. The Supreme Court itself has acknowledged a Second Amendment right to protect oneself not only from private violence, but also from public violence. See Heller, 554 U.S. at 594 (stating that, by the time of the founding, the right to have arms was “fundamental” and “understood to be an individual right protecting against both public and private violence.”). The Heller Court additionally mentioned militia membership and hunting as key purposes for the existence of the right to keep and bear arms. See id. at 598. Confining the right to the home would unduly eliminate such purposes from the scope of the Second Amendment’s guarantee. Furthermore, the Court finds entirely persuasive Judge Niemeyer’s separate opinion as to Part III.B. in Masciandaro, 638 F.3d at 467-68 (Niemeyer, J., writing separately as to Part III.B.). There, Judge Niemeyer makes several observations drawn from the text of the Supreme Court’s opinion in Heller, including those mentioned above.

Peaceful John
03-07-2012, 2:13 PM
I wouldn't have seen this unless you posted. Thanks, Librarian.

wjc
03-07-2012, 2:16 PM
Thanks Librarian. Good to know!

OleCuss
03-07-2012, 2:22 PM
For those of you who read more than I have so far, does this mean that if you are employed and are carrying a firearm that you need to run a background check on your employer? Not sure how well that would work.

press1280
03-07-2012, 2:25 PM
Footnote 7 is a beauty:

"The fact that courts may be reluctant to recognize the protection of the Second Amendment outside
the home says more about the courts than the Second Amendment. Limiting this fundamental right to the home would be akin to limiting the protection of First Amendment freedom of speech to political speech or college campuses."

POLICESTATE
03-07-2012, 2:31 PM
Footnote 7 is a beauty:

"The fact that courts may be reluctant to recognize the protection of the Second Amendment outside
the home says more about the courts than the Second Amendment. Limiting this fundamental right to the home would be akin to limiting the protection of First Amendment freedom of speech to political speech or college campuses."

That is pure awesomeness.

Crom
03-07-2012, 2:36 PM
Thanks Librarian.

Judge Niemeyer is quoted yet again! :)

goldrush
03-07-2012, 2:43 PM
Footnote 7 is a beauty:

"The fact that courts may be reluctant to recognize the protection of the Second Amendment outside
the home says more about the courts than the Second Amendment. Limiting this fundamental right to the home would be akin to limiting the protection of First Amendment freedom of speech to political speech or college campuses."

Yes! This is exactly the methodology I employ. This is what will be useful. This is what we need.

If a government can't limit the carrying of a Bible in lower Manhattan, neither can it logically restrict the carrying of a 1911.

mosinnagantm9130
03-07-2012, 2:44 PM
Plenty of good news lately!

stix213
03-07-2012, 3:23 PM
The tide appears to be turning

Rossi357
03-07-2012, 3:28 PM
Another sig line.
Limiting this fundamental right to the home would be akin to limiting the protection of First Amendment freedom of speech to political speech or college campuses.

jwkincal
03-07-2012, 3:28 PM
Yes! This is exactly the methodology I employ. This is what will be useful. This is what we need.

If a government can't limit the carrying of a Bible in lower Manhattan, neither can it logically restrict the carrying of a 1911.

What if your sacred text happens to be inscribed on a 1911? What if, as a fundamental faith practitioner, you don't consider any other rendering of your sacred text to be legitimate?

I smell a great angle here... ;)

CCWFacts
03-07-2012, 3:49 PM
What if your sacred text happens to be inscribed on a 1911? What if, as a fundamental faith practitioner, you don't consider any other rendering of your sacred text to be legitimate?

I smell a great angle here... ;)

Yeah everyone has smelled that angle before. "My religion says I get to smoke weed! My religion says I'm not allowed to pay taxes!" etc. All have been tried in court. With very very few exceptions all have crashed and burned. Yes some very small religious groups have won narrow exemptions for some drug use. The no-taxes angle has crashed and burned almost every time. The Amish finally had to get an act of congress to be excluded from Social Security (http://www.amishnews.com/amisharticles/amishss.htm), which is indeed against their religion. Scientology is the only recently-made-up religion to make an agreement with the IRS after a brutal fight including their founder Lafayette Hubbard having to live on a boat for a few years.

Sorry, trying to extend 1A protection into new areas does not work.

press1280
03-07-2012, 3:50 PM
I'm just glad some judges are calling out the others for using the 2A two-step instead of addressing the issue.

jwkincal
03-07-2012, 3:55 PM
Sorry, trying to extend 1A protection into new areas does not work.

You may need to tune your satirometer...

SDS-Ruger
03-07-2012, 4:16 PM
Happy to see this. Thanks Librarian.

scoobyj
03-07-2012, 6:43 PM
:mnl:

voiceofreason
03-07-2012, 7:49 PM
Thank you for sharing Librarian. Haven't read this through other sources yet.

diggersdarling
03-07-2012, 8:45 PM
I could crap rainbows right now.

Awesomesauce.

goldrush
03-08-2012, 4:34 AM
Turns out, this ruling is pretty lousy. The defendants lost. The head of a biker gang, being a convicted felon, isn't allowed to have armed protection, so his bodyguards were convicted of provided same for him. Horrible outcome. Everyone is allowed the natural right of self defense and to seek it by all possible means.

More of the enduring hell that we're suffering from Scalia running off at the mouth:

"For example, the Heller Court identified a non-exhaustive, illustrative list of “longstanding prohibitions on the possession of firearms” as “presumptively lawful regulatory measures.” Heller, 544 U.S. at 626-27 & n.26."

RipVanWinkle
03-08-2012, 1:42 PM
This case, if I read it correctly, sets up some potentially wonderful comic outcomes in the Mirkarimi case (not that it hasn’t already provided plenty of laughs!). From the District Court’s decision:

Section 922(h) is … limited in [important] respects: temporally, an individual is only precluded from possessing a firearm while acting in the course of his employment for a prohibited person, and he is free to regain his right to possess firearms by simply parting with the employment relationship. To be quite clear, even an individual who maintains an employment relationship with a prohibited person may lawfully possess firearms, provided he is not acting in the course of employment at the time of the firearm possession. From this discussion, it is clear that Congress tailored the prohibition in § 922(h) to cover only certain individuals at certain times and when they act in certain ways. In other words, the scope of § 922(h) is effectively limited to vicarious possession by prohibited persons, although it penalizes the proxy rather than the prohibited person. It is a commonsense extension of the prohibitions contained in § 922(g). Just as § 922(g) strips firearms from the possession of prohibited persons, § 922(h) effectively strips firearms from their control.

Ross Mirkarimi is the sheriff and all of the deputies are in his employ, or “maintain an employment relationship” with him, as the decision puts it. However, Sheriff Mirkarimi is also a “prohibited person” by virtue of being under a restraining order involving “domestic violence” according to 922(g). Furthermore, he will be permanently prohibited should he lose his DV case. This would mean that all the deputies are currently in violation of the law when they possess firearms “when acting in the course of employment” (i.e., On Duty) under Sheriff Mirkarimi. On the other hand, assuming they are not themselves “prohibited persons”, the deputies may lawfully possess firearms when they are Off Duty.

Note that there is no law preventing Mr. Mirkarimi from being sheriff just because he happens to be a “prohibited person” under 922(g); he just cannot possess firearms. It is his deputies who are now breaking the law under 922(h) when they possess firearms while On Duty. My question for the Calguns readership is: If you were Sheriff Mirkarimi, how would you resolve this apparent problem (if it is a problem)??? :confused:

Coded-Dude
03-08-2012, 2:13 PM
an individual is only precluded from possessing a firearm while acting in the course of his employment for a prohibited person

Scenario: I am a law-abiding citizen with a permit to carry a weapon. My job requires me to travel. I carry for myself not, for my job. however, my boss is a felon. Am I breaking the law if I never use the firearm to protect company property(only myself)?

curtisfong
03-08-2012, 2:13 PM
No problem. They'll just pass a LEO exemption. CA is utterly corrupt; you can't get around it.

RipVanWinkle
03-08-2012, 2:27 PM
No problem. They'll just pass a LEO exemption. CA is utterly corrupt; you can't get around it.

Yes, you might expect something of the sort; but this is a violation of federal law, not state law, so it would resemble the situation where a local/state law legalizes marijuana while federal law criminalizes it.

The relevant federal statute the decision cites is fairly long, so there may be a LEO exemption in there somewhere although I was unable to spot one.

RipVanWinkle
03-08-2012, 3:16 PM
Originally Posted by curtisfong View Post
No problem. They'll just pass a LEO exemption. CA is utterly corrupt; you can't get around it.
Yes, you might expect something of the sort; but this is a violation of federal law, not state law, so it would resemble the situation where a local/state law legalizes marijuana while federal law criminalizes it.

The relevant federal statute the decision cites is fairly long, so there may be a LEO exemption in there somewhere although I was unable to spot one.
03-08-2012 2:13 PM

Well, I did find this, from the U.S. Attorneys' Manual, but it's not dated:

http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm01117.htm

There is no law enforcement exception: One of the provisions of this new statute removed the exemption that 18 U.S.C. § 925(a)(1) provided to police and military. Thus, as of the effective date, any member of the military or any police officer who has a qualifying misdemeanor conviction is no longer able to possess a firearm, even while on duty. We now have the anomalous situation that 18 U.S.C. § 925(a)(1) still exempts felony convictions for these two groups. Thus if a police officer is convicted of murdering his/her spouse or has a protection order placed against them, they may, under federal law, still be able to possess a service revolver while on duty, whereas if they are convicted of a qualifying misdemeanor they are prohibited from possessing any firearm or ammunition at any time. Currently pending before Congress are at least two bills that would substantially modify the impact of the amendment to this section.

Interesting. I don't know if the Congress did modify this yet but presume that if they had it would have been noted in the attorneys' manual. Who knows? You gotta love the law!:43:

Mulay El Raisuli
03-09-2012, 6:32 AM
Footnote 7 is a beauty:

"The fact that courts may be reluctant to recognize the protection of the Second Amendment outside
the home says more about the courts than the Second Amendment. Limiting this fundamental right to the home would be akin to limiting the protection of First Amendment freedom of speech to political speech or college campuses."


Simple, clear, direct. I wonder when the 4th is going to dump all over him for exercising logic & reason?


Another sig line.
Limiting this fundamental right to the home would be akin to limiting the protection of First Amendment freedom of speech to political speech or college campuses.


And a great sig line it is. As is the other one you have up. But, wouldn't they be just a bit better if the source was included also?

Just a suggestion.


The Raisuli