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Old 07-10-2011, 2:53 PM
anthonyca anthonyca is offline
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Default Questions About 10th Amendment Dismissal

10th Amendment Dismissal:
From Enos

"3. Tenth Amendment
The FAC alleges that 18 U.S.C. § 922(g)(9) 18 U.S.C.
§ 922(d)(9) and 18 U.S.C. § 921 (a)(33) violate the Tenth
Amendment, by usurping the States‟ powers to define and provide for
the rehabilitation of minor public offenses. 1 Defendants move to
dismiss the Tenth Amendment claim, arguing that the Ninth Circuit
in United States v. Andaverde, 64 F.3d 1305 (9th Cir. 1995) held
that Congress may regulate possession of firearms without violating
the Tenth Amendment. Though Andaverde discussed 18 U.S.C.
§ 922(g)(1) (regulating the possession of firearms by felons),
courts addressing 18 U.S.C. § 922(g)(9) have likewise found the
statute to be constitutional under the Tenth Amendment. See, e.g.,
Fraternal Order of Police v. United States, 173 F. 3d 898 (D.C.
Cir. 1999); Hiley v. Barret, 155 F.3d 1276 (11th Cir. 1998).
Accordingly, Enos‟ claim for violation of the Tenth Amendment is
1 The Court has considered Bond v. United States, 2011 WL 2369334
(2011), the supplemental authority recently submitted by counsel
for Plaintiffs (Doc. #23), and finds it unpersuasive. Bond is
unrelated to the issue of firearms regulation under the Tenth
Amendment, and to the extent that Plaintiffs‟ cite it in support of
their argument for standing, it is entirely distinguishable from
the case at hand, because the plaintiff in Bond was convicted and
incarcerated under the law she challenged on Tenth Amendment
grounds.
Case 2:10-cv-02911-JAM -EFB Document 24 Filed 07/08/11 Page 12 of 14
DISMISSED, WITH PREJUDICE."


I do not fully understand the Bond reference by the court with regard to Bond incarcerated. Is that a Habeas corpus reference?

http://caselaw.findlaw.com/us-9th-circuit/1305091.html
United States v. Andaverde
"On January 31, 1991, Andaverde was convicted in state court of first degree burglary and was subsequently imprisoned.   At the time of the events at issue here, he had been released and was on probation."
"Andaverde is incorrect.   In determining whether a felon continues to suffer a civil rights disability, the Ninth Circuit considers whether the felon has been restored the right to vote, sit on a jury, and hold public office.  United States v. Meeks, 987 F.2d 575, 578 (9th Cir.), cert. denied, 510 U.S. 919, 114 S.Ct. 314, 126 L.Ed.2d 261 (1993);  United States v. Dahms, 938 F.2d 131, 133 (9th Cir.1991).   Andaverde contends that this restoration analysis should turn on whether state law restores the right to bear arms.   Even if, in determining whether a felon's civil rights have been restored, the court should look to state law giving felons the right to bear arms, the restoration of this single right does not prevent prosecution under § 922(g)(1).   A restoration of rights must be “substantial,” not merely de minimis.  Meeks, 987 F.2d at 578;  Dahms, 938 F.2d at 133.   We held in Meeks that, under Missouri law which allowed convicted felons to vote and hold office, but which did not restore the right to serve on a jury, to hold office as a sheriff, or to be a highway patrol officer, the defendant had not had his civil rights “substantially restored” and thus could be prosecuted under § 922(g)(1).  Meeks, 987 F.2d at 578.   In contrast, the Dahms court ruled that a defendant who had been restored the right to vote, hold public office, and serve on a jury had had his rights substantially restored within the meaning of § 921(a)(20).  Dahms, 938 F.2d at 134."


Is being able to be a highway patrol officer a fundamental civil right? Do Heller and McDonald make a difference here?


"Under Washington state law, a felon's civil rights are restored in full when he completes the requirements of his sentence and is thereby discharged.   Wash.Rev.Code § 9.94A.220.   However, until a felon is discharged, state law prevents him from serving on a jury, holding public office, and voting.   Wash.Rev.Code §§ 2.36.070(5) (Supp.1995), 29.65.010(3);  Wash. Const. Art. 6, § 3.   There is no evidence in the record that Andaverde has been discharged.   Andaverde thus substantially lacked civil rights when he was prosecuted under § 922(g)(1).   Cf. Dahms, 938 F.2d at 134.   Therefore, the district court did not err in ruling that he could be prosecuted under that statute.
A.
 Andaverde further contends that his conviction under § 922(g)(1) violates the equal protection assurances contained in the Due Process Clause of the Fifth Amendment because § 922(g)(1) differentiates between convicted felons who are on probation and those who are not.
This argument is unpersuasive.   Congress could rationally conclude that convicted felons who have successfully completed their probation, and, presumptively, have been reintegrated into society may better be trusted with the right to possess firearms than convicted felons who have yet to prove themselves rehabilitated.   Andaverde's equal protection claim must fail."


Does this change after Heller and McDonald? What about Enos having been "discharged"?


The court referenced Fraternal Order of Police v. United States,http://caselaw.findlaw.com/us-dc-circuit/1115866.html
From FOP v US
"We note, finally, that the treatment of domestic violence misdemeanants intersects with certain anomalies in Congress's provision for deferring to state law on restoration of civil rights.   For the purposes of the firearm disability generally, 18 U.S.C. § 921(a)(20) provides that convictions for which civil rights have been restored do not trigger the disability.   See United States v. Bost, 87 F.3d 1333, 1335 (D.C.Cir.1996) (discussing state restoration of rights).   An equivalent provision, § 921(a)(33)(B)(ii), allows state restoration of civil rights to lift the federal disability from domestic violence misdemeanants.   But few states (if any) deprive such misdemeanants of civil rights.   With no deprivation, there can be no “restoration” in the ordinary sense of the term.   See McGrath, 60 F.3d at 1007-10 (holding that felon whose civil rights were not revoked could not argue that they had been restored).   Thus the plain text of the statute seems to put misdemeanants who have never lost their rights in a worse situation than felons whose rights are restored, often by automatic operation of state law.   See, e.g., United States v. Caron, 77 F.3d 1, 2-4 (1st Cir.1996) (holding that individualized restoration of civil rights is not required to lift firearm disability)."


All of this was before the 2nd was ruled by SCOTUS as a right. Isn't revocation of the second now a loss of rights?


"From the same case Because we find §§ 922(g)(9) and (d)(9) in violation of equal protection requirements independently, we need not address the interpretive and other issues posed by the “restoration” provisions.
*   *   *
 This brings us to the question of remedy.   The Order makes various alternative requests, one of which is that we hold § 925 inoperative.   Section 928 of the Gun Control Act explicitly provides that the invalidation of one provision shall not affect the remainder of the Act.   We think the most appropriate remedy is consequently to hold that § 925 is unconstitutional insofar as it purports to withhold the public interest exception from those convicted of domestic violence misdemeanors.   The government may not bar such people from possessing firearms in the public interest while it imposes a lesser restriction on those convicted of crimes that differ only in being more serious.   Of course we do not decide whether a broader revocation of the public interest exception-for example, from all those convicted of any crime of domestic violence-would be constitutional.
So ordered."


I am lost here, can someone explain this?

I can't seem to find Hiley v. Barret, 155 F.3d 1276 (11th Cir. 1998)
Searches led me to this.http://www.justice.gov/osg/briefs/19...-0106.resp.pdf
The court of appeals rejected petitioner’s Tenth
Amendment claim. Pet. App. 15-17. The court explained
that “[petitioner’s] Tenth Amendment challenge
fails because § 922(g)(9) does not force state
officials to do anything affirmative to implement its bar
on domestic violence misdemeanants’ possession of
firearms.” Id. at 15. The court also observed:"

Is this all that is required for a dismissal of a 10th amendment claim?

The 10th amendment.
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Under the 10th amendment the federal government can not force a state to make or enforce a law, but they can just make a federal law that a state does not want?

Last edited by anthonyca; 07-15-2011 at 8:28 PM..
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