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California 2nd Amend. Political Discussion & Activism Discuss gun rights activism and 2A related political topics here. All advice given is NOT legal counsel. |
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Seventh Circuit Vacates Conviction for Gun Possession By Misdemeanant
From the Volokh Conspiracy
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False is the idea of utility that sacrifices a thousand real advantages for one imaginary or trifling inconvenience; that would take fire from men because it burns, and water because one may drown in it; that has no remedy for evils except destruction. The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes. -- Cesare Beccaria http://www.a-human-right.com/ |
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San Diego FFLs | San Diego ranges I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it. --Thomas Jefferson ** I had my San Diego County CCW... you can, too! |
#4
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Heller's dicta talks about a Right to bear arms for lawful purposes such as self defence and...hunting
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False is the idea of utility that sacrifices a thousand real advantages for one imaginary or trifling inconvenience; that would take fire from men because it burns, and water because one may drown in it; that has no remedy for evils except destruction. The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes. -- Cesare Beccaria http://www.a-human-right.com/ |
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Isn't the right to bear arms for hunting just as much a right as the right to bear arms for self defense, or even for plinking?
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John -- bitter gun owner. All opinions expressed here are my own unless I say otherwise. I am not a lawyer and this is not legal advice. |
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Intermediate scrutiny... not good.
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#8
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In a way there is a secondary one, and you should be wary of losing sight of it. You also miss the fact that hunting is already legal, the question is whether the state can arbitrarily take away the ability to do it and not whether hunting should be legal at all. The fact that Self Defense is the core of the right does not mean it is the entirety of the right. And the 2A is derived from the right in the English Bill of Rights of 1689, which states several conditions on the right, one of which is "self-defense." The American version is notable for deleting all the conditions, and the only reason for doing so is that they do not limit the American legal right. Why would they do this? The answer is in the prefatory clause. "Well-regulated" meant "well-trained." How is the militia, every man from around 17 to around 45 (I think the former number may be a year or so off in the eighteenth century and I'm quoting the 1903 law), to be well-trained when the unorganized militia will rarely if ever do military drill? Because it is hoped they are proficient riflemen, practiced through civilian use of arms. Note that Thomas Jefferson recommended that boys hunt and shoot as exercise. Thus the 2A secondarily protects the use of arms for "every lawful purpose," not because they are the primary usage in need of protection but because they promote it. When the NRA was founded in 1871 the reason was the same--to promote civilian marksmanship so that if a man needed to protect home or country he would already have certain skills. But there is an even more practical reason you should be wary of the "every lawful purpose" goal. The right was explicitly limited to self-defense in England, and enforcement of the game laws became the avenue by which creeping incrementalism took it away completely. Even in the late eighteenth century American observers understood that this was happening--I've seen the quotes, though I'm not sure where now. It took two hundred more years, but it was taken completely in our lifetime. The decision seems to have a reasonable take on that situation--the judge declined to apply strict scrutiny, as he indicated might be appropriate for self-defense, but did apply an intermediate level of scrutiny. That makes a kind of sense--the state does have an interest in preserving the game herds, but should not be able to arbitrarily deny someone the ability to hunt when it is already generally legal. Perhaps someone can show that this is not how the law is supposed to work, but it doesn't appear inconsistent with what I observe from the outside. The final issue relates to the maintenance of the gun culture. One of the most effective and enduring attacks on guns is to chip away at the legal uses of them, and I expect we'll see a greater emphasis on this in coming decades as an incorporated 2A becomes a stumbling stone to direct attacks. Each use which is denied means we lose active shooters whose connection to the 2A is gone, and in the long run we lose them as gun voters. Once you whittle it all away, self-defense itself is at its weakest because it has the least support. Hunters probably singlehandedly saved the 2A in certain dark years, and in the future self-defense oriented handgun and rifle shooters will probably do the same with their greater urban penetration. Over the long term, each of those can be a single point of failure which, if missing, may allow gun-banners to push us over a tipping point where the slide cannot be stopped. A real 2A jurisprudence makes this less likely, but every aspect is a measure of insurance. The law alone does nothing without shooters passionate enough to fight for the rule of law itself. Every. Single. Shooting. Sport. Must. Be. Protected. They must all be protected for the same reason the founders deleted the self-defense limitation of the purpose. The only thing that will preserve the RKBA is an active, alert, shooting community which passes on the positive, constructive Anglo-American gun culture to children who also love the sport. We need every person who loves any one shooting sport, and we need them wise enough to stand behind every other gun owner in every other sport. Nothing short of that is good enough. 7x57
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What do you need guns for if you are going to send your children, seven hours a day, 180 days a year to government schools? What do you need the guns for at that point?-- R. C. Sproul, Jr. (unconfirmed) Last edited by 7x57; 11-18-2009 at 9:54 PM.. |
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So I guess the issue of incorporation doesn't come up because this is an instance of the feds violating the second amendment.
I think it's a terrific decision. If hunting rights implicate an intermediate level of review, then self-defense requires strict scrutiny. It'll be interesting to see how this plays out on remand. I wonder why the feds even get involved. Don't they have better things to do than harass a hunter? Last edited by Shotgun Man; 11-18-2009 at 4:57 PM.. |
#10
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I would like to see the whole domestic misdemeanor prohibition get slapped down at some point. I know too many people who got screwed for life over this..some retroactively! Many were not even told that they would be screwed for life, they were told the 10 year Ca prohibition.
Heres what the BATFE says about the constitution problem of this law.... 4. Is this provision of the law being applied retroactively in violation of constitutional rights? No. This provision is not being applied retroactively or in violation of the ex post facto clause of the Constitution. This is because the law does not impose additional punishment upon persons convicted prior to the effective date, but merely regulates the future possession of firearms on or after the effective date. The provision is not retroactive merely because the person's conviction occurred prior to the effective date. 5. What is the penalty for violating this offense? Any individual who knowingly violates this provision of the law is subject to a fine of $250,000, imprisonment of up to 10 years, or both. http://www.atf.gov/firearms/domestic/qa.htm Lutenburg is an idiot.....
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Any Questions about Front Sight memberships or specific information about attending, Feel Free to send me a PM! |
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1. Hunting is one of the lawful purposes for which one has a right to keep and bear. Scalia said as much in Heller.
2. I think we see intermediate scrutiny here for two reasons. First, the reason that the misdemeanant wishes to keep arms is for hunting and not the core right of self defense. Second, he's in a violent category. He's not a felon, so it's not a presumptively lawful rule but it may hold up to intermediate scrutiny. However, this may mean that your crime of domestic violence has to be something more than pushing and shoving... This is all good news. -Gene
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Gene Hoffman Chairman, California Gun Rights Foundation DONATE NOW to support the rights of California gun owners. Follow @cgfgunrights on Twitter. Opinions posted in this account are my own and not the approved position of any organization. I read PMs. But, if you need a response, include an email address or email me directly! "The problem with being a gun rights supporter is that the left hates guns and the right hates rights." -Anon
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They also seemed to have it right that the core right to SD is what the 2A is about. They also got it right that there is not really a good enough reason to strip people of their 2A rights solely on the basis of a minor offense that may have occurred many years ago. I don't see any down side to this.
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bob Disclaimers: I am not a lawyer, cop, soldier, gunsmith, politician, plumber, electrician, or a professional practitioner of many of the other things I comment on in this forum. Last edited by ilbob; 11-19-2009 at 5:43 AM.. |
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I never really understood this law, I know the idea was supposed to be "for the greater good" but its a major F-up. Hell, if you get into a fight with your brother and hes living at your house, guess what? Domestic battery. It's even worse with the ex post facto bs....
Not to mention all of the peace officers that lost their jobs and livelihood over this issue. |
#14
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I wonder what the ruling would have been if he claimed to keep the shotgun for self defense?
Would they apply strict scrutiny? This looks great but it's only a circuit court, chances are our circuit and local courts will get it wrong until SCOTUS corrects them. |
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Sweet.
Don't believe that 626.9 prohibition is constitutional either. . . one of the benefits of incorporation for me is the ability to attack it. I even believe that felons should not be barred ownership and possession in their own homes. Incorporation should help this for sure. |
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So could we see the automatic loss of gun rights for DV going away at some point?
Or at least a bear minimum of the 48hours to dispose of firearms just because some filed for a TRO? That one always bugged me......being forced to divest yourself of otherwise legal property with ZERO due process.
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"Freedom begins with an act of defiance" Quote for the day: Quote:
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Any Questions about Front Sight memberships or specific information about attending, Feel Free to send me a PM! |
#18
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-Gene
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Gene Hoffman Chairman, California Gun Rights Foundation DONATE NOW to support the rights of California gun owners. Follow @cgfgunrights on Twitter. Opinions posted in this account are my own and not the approved position of any organization. I read PMs. But, if you need a response, include an email address or email me directly! "The problem with being a gun rights supporter is that the left hates guns and the right hates rights." -Anon
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If they don't have a right to firearms, why would you trust them with any sort of weapon? You wouldn't. But the fact that you're releasing them means that you're trusting them to not avail themselves of a weapon. If you can't trust them to properly handle a weapon once they've acquired it, why would you trust them to not attempt to acquire one? You wouldn't, right? Taking that line of reasoning to its logical conclusion, it follows that if you don't trust someone to exercise all the rights that all members of society are supposed to have, then you shouldn't release them back into society at all. |
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NFA Life Member Last edited by Telperion; 11-20-2009 at 6:53 AM.. |
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I see firearm prohibition as a punishment just like their jail sentence. There should definitely be a process available for truly rehabilitated felons to restore their rights and possibly certain felonies that don't carry the punishment at all but I do think there will always be prohibited people. |
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I do find it interesting that it is the same mental group that thinks felons should roam the streets, felons shouldn't have guns, and just to make sure felons don't get guns, the rest of society shouldn't have guns either. |
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"I've got Sole but I'm not a Soldier" I'm only here to protect what I believe in... |
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7x57
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What do you need guns for if you are going to send your children, seven hours a day, 180 days a year to government schools? What do you need the guns for at that point?-- R. C. Sproul, Jr. (unconfirmed) |
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"You can't stop insane people from doing insane things with insane laws. That's insane!" -- Penn Jillette Discretionary Issue is the new Separate but Equal. |
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I think juries get ballots too (but I'm pretty sure felons don't get called for jury duty). |
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I'm basing that on a half-remembered case I saw on Volokh where a judge said that disarmament without review or appeal for someone merely charged with a crime unrelated to violence (possession of kiddie porn, I think) wasn't sufficient. It sounded like the judge was saying that under any reasonable post-Heller level of review, the law was too arbitrary and too unconnnected to the crime to pass. This game of reverse-engineering the law without sufficient knowledge is kinda fun. 7x57
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What do you need guns for if you are going to send your children, seven hours a day, 180 days a year to government schools? What do you need the guns for at that point?-- R. C. Sproul, Jr. (unconfirmed) Last edited by 7x57; 11-20-2009 at 3:07 PM.. |
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To qualify for jury duty, you must: 1. Be a citizen of the United States; 2. Be able to read and understand basic English; 3. Be a resident of the County of Los Angeles; 4. Be at least 18 years old; and 5. Not have been convicted of a felony or malfeasance in office. (If your rights have been restored by a pardon, or your record has been expunged, you may serve on a jury if you are otherwise qualified)
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"I've got Sole but I'm not a Soldier" I'm only here to protect what I believe in... |
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Does prohibiting a person convicted of domestic violence reduce domestic violence or only domestic violence with a gun? And perhaps is it reduced enough by the prohibition to warrant the prohibition as more than likely to prevent or reduce crime than not. So, if a 100% prohibition of a firearm to persons convicted of domestic violence means a reduction in only 5% of domestic violence with a gun then I think it could be easily argued that the prohibition does not adequately meet the interests of the State vs the individuals right to keep and bear. |
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Personally, I only think certain types of felonies should result in loss of firearms rights as a part of the sentence, and it should never be done for any sort of misdemeanor or infraction; for things like parole or probation I would say the same if the crime was not such where loss of firearms rights could become a part of the sentence. I also think that the really serious (especially violent) felonies should result in harsher treatment, with a more liberal use of the death penalty (armed robbers, rapists, some arsonists, etc. used to get it in the States for their crimes) and long-term sentences; the term felony should really be limited to things that are quite serious in nature, as was originally the case. Something like being in unlawful possession of a machine gun (which shouldn't be a crime at all) should be more of a misdemeanor. |
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I know of some one who just lost a motion to vacate for being lied to by his attorney about the repercussions on his scone amendment rights, both state and federal. He has a signed letter from his attorney dated after e plea
was entered stating how it "occurred" to her that he plea she entered with out him in court would destroy his gun rights. He was 19 and in he ARMY reserve. Lautenberg has to go. If it is allowed to stand his is how more rights will be chipped away. Does anyone know of a gun rights or hell, ECM ACLU type orginzation that would assist on the appeal? Quote:
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Someone who isn't fit to exercise his 2A rights is, simply, too dangerous to be released back into society. I don't see how it could be any other way. So are you proposing that such people be released back into society anyway? In a way, that is what we have now. I'm not saying that a system like what I've got in mind is likely to happen, but if it is to happen then the first step towards that is getting people to recognize the folly of the current system. What we have right now is, in my opinion, both an affront to the Constitution and riskier than it should be, all at the same time. |
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That will never happen.
Prisons make better criminals. Unless you can toss everyone in there and throw away the key, most people who get out of prison will not be good upstanding citizens. There are also horrible people out there that never wind up in prison. The system we have is based on deterrents. Do X crime do X time. If it isn't fair, at least it tries to be consistent. Your ideal system is entirely arbitrary. |
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We can get into discussions all day about what makes a criminal a criminal and how prisons make them better criminals, but the one thing that is certain is that peoples rights should only be taken in extreme person by person and case by case basis.
There should be no blanket prohibition, even felony. |
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I believe that many people would be suprised at just how easy it is to be banned for ever. I can't find it here with my phone but 3
of the 4 curcuit courts that have heard arguments have ruled that ANY contact constitutes a life time gun ban, even diminimus or accidental. BATFE memo says if the police report says you acted with boisterousness or were being excessively loud while being arrested in a DV situation for disorderly conduct, lifetime ban for you. That goes back to the violence court ruling but who has the money to get that far? |
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For example, bank robbery. I don't think it should matter if a person holds the place up with a gun or if the person just grabs a sack of nickels while the armored car driver isn't looking. Every one knows that robbing a bank is illegal and anyone dumb enough to try it should suffer the consequences. DV is a whole other ball of wax because misdemeanors trigger a prohibition and there is bias in the enforcement (how many females are charged with DV and how many males charged with DV were just defending themselves?). |
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And it absolutely should not be something that is permanent, particularly if it's really a right like 2A is. The reason the current system is considered "acceptable" is that the population is, by and large, currently disarmed, so there is the perception that the people need "protection" from convicted felons. With a full restoration of 2A, that problem should go away, as should the "need" for the current "protection". |
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