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2nd Amend. Litigation Updates & Legal Discussion Discuss California 2A related litigation and legal topics here. All advice given is NOT legal counsel.

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  #361  
Old 10-06-2011, 12:05 PM
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I don't know what the next legal move is, but Don Kilmer is quite capable of developing a case which is ready for appeals all the way up. . .
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  #362  
Old 10-06-2011, 4:50 PM
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Originally Posted by banned4life View Post
Dad
Is there some way to take this to court to get your 'gun rights' restored?
Is the procedure done in a Federal or California court as the feds seem to say "California can't restore what they didn't take away"
I sent you a pm!
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I don't know what the next legal move is, but Don Kilmer is quite capable of developing a case which is ready for appeals all the way up. . .
I hope so!
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  #363  
Old 10-07-2011, 1:46 AM
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Default Question on this

If a person marries someone convicted of DV in a previous marriage, how does the law apply there?

What I mean is would the firearm owner have to surrender or move their guns out of the house?

Would there be any charges for the DV offender for living in the home with the firearms present?
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  #364  
Old 10-07-2011, 2:11 AM
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The DV person under current legal status cannot have control, possession etc. The Non prohibited person does not lose thier rights. But if you leave guns laying around it could get the prohibited person in deep Kimchee. They have to be locked up and the prohibited person cannot have a key or combo.
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  #365  
Old 10-07-2011, 3:45 AM
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The DV person under current legal status cannot have control, possession etc. The Non prohibited person does not lose thier rights. But if you leave guns laying around it could get the prohibited person in deep Kimchee. They have to be locked up and the prohibited person cannot have a key or combo.
That can't work, as they can't require someone to keep a handgun locked up in ones home.
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  #366  
Old 10-07-2011, 6:51 PM
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I dunno how it works, but the prohibited supposedly cant have access,control,possession, etc. I remember a friend had a felon son stay with him after he got out of prison and the parole officer checked to make sure all the guns were secured before he approved of the parolee staying with his dad.
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  #367  
Old 10-15-2011, 5:58 PM
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Does anyone know if there is going to be "audio" available for the oral arguments on November 6th?
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  #368  
Old 10-16-2011, 7:49 AM
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November 6th is a Sunday
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  #369  
Old 10-16-2011, 12:09 PM
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November 6th is a Sunday
I believe it's November 16th. This is getting really expensive. I am donating more money for this case. https://www.paypal.com/us/cgi-bin/we...b7e2d9283d70f1

Please donate if you believe in this case. This case is much more important than DV prohibitions. The government is arguing that the second amendment is not a civil right.
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  #370  
Old 10-16-2011, 12:15 PM
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I'm in for another $50.00...................



Confirmation number: 3G850987T0948164R

Donation amount: $50.00 USD

Total: $50.00 USD

Purpose: Calguns Foundation

Reference: General Donations

Contributor: HowardW56
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  #371  
Old 10-19-2011, 2:29 PM
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The schedule was bumped right 2 months today...

http://www.archive.org/download/gov....15824.35.0.pdf
Quote:
2011-10-19 35 0 STIPULATION and ORDER signed by Judge John A. Mendez on 10/18/11 ORDERING hearing on 32 MOTION to DISMISS reset for 1/25/2012 at 09:30 AM in Courtroom 6 (JAM) before Judge John A. Mendez, Responses due by 1/11/2012, Replies due by 1/18/2012.

Plaintiffs' FRCP 56 cross-motion shall be heard on 1/25/12 at 9:30 a.m. Pltfs' motion and supporting documents shall be filed on or before 12/14/11; defs' opposition due 1/11/12; pltfs' reply due 1/18/12. (Meuleman, A) (Entered: 10/19/2011)
Hearing now set for 1/25/12. Briefs due as shown...
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  #372  
Old 10-19-2011, 3:41 PM
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Originally Posted by krucam View Post
The schedule was bumped right 2 months today...

http://www.archive.org/download/gov....15824.35.0.pdf


Hearing now set for 1/25/12. Briefs due as shown...
How much does all this cost, on both sides? I really hope this is not another Nordyke that gets kicked back and dragged around for years.

We had the first ruling of incorporation in Nordyke, (before going en banc) in the 9th circuit of all places, but it's still not over.

In Enos, the Feds are arguing that the second is not really a right. At least it's not as important as voting, serving on a jury, or holding public office or getting certain state licenses. Where are those listed specifically in the bill of rights?

This case is very big, not just for DV.
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  #373  
Old 10-19-2011, 4:04 PM
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Default Hearing Schedule

This reschedule is to prevent a Nordyke-like delay. If we had gone ahead with the Govt's motion to dismiss and won again, we would still be a Summary Judgment Motion or Trial away from resolution. I greed to the Jan. 25 hearing date because it lets me file a dispositive summary judgment motion that hopefully will get us to judgment that much sooner.
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  #374  
Old 10-19-2011, 4:35 PM
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Originally Posted by Lex Arma View Post
This reschedule is to prevent a Nordyke-like delay. If we had gone ahead with the Govt's motion to dismiss and won again, we would still be a Summary Judgment Motion or Trial away from resolution. I greed to the Jan. 25 hearing date because it lets me file a dispositive summary judgment motion that hopefully will get us to judgment that much sooner.
Thanks, Don....
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  #375  
Old 10-19-2011, 4:42 PM
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I have a friend I am watching this for. Wobbler DV, loses rights, native american who can no longer kill a deer with a rifle which he claims needs to be done (religion) . He is also disabled.
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  #376  
Old 10-19-2011, 4:42 PM
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I joined the Madison Society and donated some money. You are correct. they rock.
They are a great organization. I believe they are based out here in Modesto. Could be wrong though about location.
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  #377  
Old 10-19-2011, 5:07 PM
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You're not wrong.
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  #378  
Old 10-25-2011, 5:34 PM
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My DV case was pre 1996. All I did was take my girlfriend by the arm and take her to her car so she would leave me alone and go to her house. She then threatened to trash my car when she left me so I then grabbed her keys until she calmed down. Little did I know that I would be charged with Felony false imprisonment and a DV. The false imprisonment was thrown out but the DV I ended up with a misdemeanor. After I finished my offeneder work program the Sheriffs called me in to pick up all my guns and rifles that they confiscated from my house. I didnt know I couldnt own a gun intil I went to buy a new one at a store. If I would of known that I was going to eventually lose my gun rights I would of pled not guilty and went to trial. At that time I'm sure the DA would of thrown the case out. So I am in agreement with this battle to restore our 2nd amendment.
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  #379  
Old 10-25-2011, 6:55 PM
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Originally Posted by woodstock View Post
My DV case was pre 1996. All I did was take my girlfriend by the arm and take her to her car so she would leave me alone and go to her house. She then threatened to trash my car when she left me so I then grabbed her keys until she calmed down. Little did I know that I would be charged with Felony false imprisonment and a DV. The false imprisonment was thrown out but the DV I ended up with a misdemeanor. After I finished my offeneder work program the Sheriffs called me in to pick up all my guns and rifles that they confiscated from my house. I didnt know I couldnt own a gun intil I went to buy a new one at a store. If I would of known that I was going to eventually lose my gun rights I would of pled not guilty and went to trial. At that time I'm sure the DA would of thrown the case out. So I am in agreement with this battle to restore our 2nd amendment.
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I am a physician. I am held to being "the expert" in medicine. I can't fall back on feigned ignorance and the statement that the patient should have known better than I. When an officer "can't be expected to know the entire penal code", but a citizen is held to "ignorance is no excuse", this is equivalent to ME being able to sue my patient for my own malpractice-after all, the patient should have known better, right?
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  #380  
Old 11-19-2011, 11:30 PM
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Don K. on GunTalk Nov 6th:

http://guntalk.libsyn.com/webpage/gu...1-11-06-part-b
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Last edited by shocknm; 11-19-2011 at 11:32 PM..
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  #381  
Old 11-20-2011, 11:50 AM
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Originally Posted by taperxz View Post
I have a friend I am watching this for. Wobbler DV, loses rights, native american who can no longer kill a deer with a rifle which he claims needs to be done (religion).

"Sorry honey, I can't fix that screen door today, its Sunday and I have to go kill a deer or else I'll go to hell"!!
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  #382  
Old 11-20-2011, 11:54 AM
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They are a great organization. I believe they are based out here in Modesto. Could be wrong though about location.
They were instrumental in getting Sheriff Christianson to change his LTC policy. Dem bes good folk.
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  #383  
Old 11-20-2011, 5:51 PM
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Originally Posted by shocknm View Post
Thank you for posting the link. Anyone who thinks the lautenberg amendment is wrong should donate to the Madison society.

http://www.madison-society.org/laws/litigation.htm

That was MUCH too short of an interview. I would like to hear Don for a few hours have an open forum. We should push to get Mr. Kilmer on Armstrong and Getty, they spent a good amount of time talking about Sacramento becoming shall issue.

We as gun owners should start some grass roots pushes to get the right people on the media circuit. It may be easier to ge them on liberal and anti stations. KGO often does have gun debates and Ron Owens would vie equal time to one of the right people even if he doesn't agree with them. He actually had a lawyer on who was talking about the 14th amendment angle in McDonald. We are just talking to ourselves some times. Get the message out there. Gun rights are civil rights.
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Quote:
Originally Posted by Wherryj View Post
I am a physician. I am held to being "the expert" in medicine. I can't fall back on feigned ignorance and the statement that the patient should have known better than I. When an officer "can't be expected to know the entire penal code", but a citizen is held to "ignorance is no excuse", this is equivalent to ME being able to sue my patient for my own malpractice-after all, the patient should have known better, right?
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  #384  
Old 11-23-2011, 9:44 AM
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Bump
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  #385  
Old 11-23-2011, 8:07 PM
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Thanks for the update. Don sounds very confident about this case during the interview.
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  #386  
Old 11-25-2011, 2:04 AM
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Although the statute provides that expungement, pardon, or restoration of civil rights means that a conviction no longer disqualifies a person from possessing firearms, see 18 U.S.C. § 921(a)(33)(B)(ii), Skoien maintains that, as a practical matter, these routes to restoration are unavailable to domestic-battery misdemeanants in Wisconsin. We have our doubts. As the Supreme Court observed in Logan v. United States, 552 U.S. 23 (2007), although Wisconsin does not deprive misdemeanants of the civil rights to vote, serve on a jury, or hold public office-so these rights cannot be “restored” by the passage of time, as felons' rights often are-the state does give misdemeanants an opportunity to seek pardon or expungement. Some of the largest states make expungement available as of right to misdemeanants who have a clean record for a specified time. California, for example, has such a program. Cal.Penal Code § 1203.4a. See also Robert A. Mikos, Enforcing State Law in Congress's Shadow, 90 Cornell L.Rev. 1411, 1463-64 & nn. 187, 188 (2005) (finding that expungement increased following the enactment of § 922(g)(9)). This means that § 922(g)(9) in its normal application does not create a perpetual and unjustified disqualification for a person who no longer is apt to attack other members of the household. True, the statute tolerates different outcomes for persons convicted in different states, but this is true of all situations in which a firearms disability (or any other adverse consequence) depends on state law. The Justices held in Logan that this variability does not call into question federal firearms limits based on state convictions that have been left in place under the states' widely disparate approaches to restoring civil rights.

http://caselaw.findlaw.com/us-7th-circuit/1531142.html

Does anyone find it odd that the government argued that californians have a way to restore firearms rights after a MCDV?
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Quote:
Originally Posted by Wherryj View Post
I am a physician. I am held to being "the expert" in medicine. I can't fall back on feigned ignorance and the statement that the patient should have known better than I. When an officer "can't be expected to know the entire penal code", but a citizen is held to "ignorance is no excuse", this is equivalent to ME being able to sue my patient for my own malpractice-after all, the patient should have known better, right?
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  #387  
Old 11-25-2011, 8:40 AM
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Are you saying that the avenue you list above will not work for CA MCDV convictions? I'm trying to get my brother-in law restored, as he wants to hunt with me, so I'm trying to decide whether to go this route or wait for this case to play out. His CA restriction will be up in 2012. If you could PM me with any info you have, I would really appreciate it.

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Originally Posted by anthonyca View Post

Does anyone find it odd that the government argued that californians have a way to restore firearms rights after a MCDV?
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  #388  
Old 11-25-2011, 8:58 AM
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Originally Posted by d_c_mar View Post
Are you saying that the avenue you list above will not work for CA MCDV convictions? I'm trying to get my brother-in law restored, as he wants to hunt with me, so I'm trying to decide whether to go this route or wait for this case to play out. His CA restriction will be up in 2012. If you could PM me with any info you have, I would really appreciate it.
As of right now, California expungement is not recognized by the ATF. It was at one time, but they changed their minds. There is a memo by the former California attorney general on this issue. I have posted that memo before but I'm on my phone and too lazy to look now. A google search will find it quickly. I believe the memo was from Bill Lockyear to LEA. Getting an expungement could actually hurt you and impede the much harder to get motion to dismiss. I am not a lawyer, you should consult Don Kilmer, Jason Davis, or micheal and associates.

Please join and donate to the Madison Society if you believe in this case. http://www.madison-society.org/laws/litigation.htm

This is VERY expensive and as of this time, most likley your friends best hope. Unless he has over a hundred grand and wants to go it alone.
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Quote:
Originally Posted by Wherryj View Post
I am a physician. I am held to being "the expert" in medicine. I can't fall back on feigned ignorance and the statement that the patient should have known better than I. When an officer "can't be expected to know the entire penal code", but a citizen is held to "ignorance is no excuse", this is equivalent to ME being able to sue my patient for my own malpractice-after all, the patient should have known better, right?
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  #389  
Old 11-25-2011, 10:47 AM
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Originally Posted by anthonyca View Post
As of right now, California expungement is not recognized by the ATF. It was at one time, but they changed their minds. There is a memo by the former California attorney general on this issue. I have posted that memo before but I'm on my phone and too lazy to look now. A google search will find it quickly. I believe the memo was from Bill Lockyear to LEA. Getting an expungement could actually hurt you and impede the much harder to get motion to dismiss. I am not a lawyer, you should consult Don Kilmer, Jason Davis, or micheal and associates.

Please join and donate to the Madison Society if you believe in this case. http://www.madison-society.org/laws/litigation.htm

This is VERY expensive and as of this time, most likley your friends best hope. Unless he has over a hundred grand and wants to go it alone.
Here is the memo that I think that you were referring to the California AG on expungements.
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  #390  
Old 11-25-2011, 10:55 AM
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Originally Posted by anthonyca View Post
Although the statute provides that expungement, pardon, or restoration of civil rights means that a conviction no longer disqualifies a person from possessing firearms, see 18 U.S.C. § 921(a)(33)(B)(ii), Skoien maintains that, as a practical matter, these routes to restoration are unavailable to domestic-battery misdemeanants in Wisconsin. We have our doubts. As the Supreme Court observed in Logan v. United States, 552 U.S. 23 (2007), although Wisconsin does not deprive misdemeanants of the civil rights to vote, serve on a jury, or hold public office-so these rights cannot be “restored” by the passage of time, as felons' rights often are-the state does give misdemeanants an opportunity to seek pardon or expungement. Some of the largest states make expungement available as of right to misdemeanants who have a clean record for a specified time. California, for example, has such a program. Cal.Penal Code § 1203.4a. See also Robert A. Mikos, Enforcing State Law in Congress's Shadow, 90 Cornell L.Rev. 1411, 1463-64 & nn. 187, 188 (2005) (finding that expungement increased following the enactment of § 922(g)(9)). This means that § 922(g)(9) in its normal application does not create a perpetual and unjustified disqualification for a person who no longer is apt to attack other members of the household. True, the statute tolerates different outcomes for persons convicted in different states, but this is true of all situations in which a firearms disability (or any other adverse consequence) depends on state law. The Justices held in Logan that this variability does not call into question federal firearms limits based on state convictions that have been left in place under the states' widely disparate approaches to restoring civil rights.

http://caselaw.findlaw.com/us-7th-circuit/1531142.html

Does anyone find it odd that the government argued that californians have a way to restore firearms rights after a MCDV?
Sorry for bumping my own post, but is was moving up fast and I didn't want it to be lost.

Quote:
Originally Posted by d_c_mar View Post
Are you saying that the avenue you list above will not work for CA MCDV convictions? I'm trying to get my brother-in law restored, as he wants to hunt with me, so I'm trying to decide whether to go this route or wait for this case to play out. His CA restriction will be up in 2012. If you could PM me with any info you have, I would really appreciate it.
https://calguns.net/calgunforum/atta...5&d=1322246730

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Originally Posted by M107A1 View Post
Here is the memo that I think that you were referring to the California AG on expungements.
Thank you.
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Quote:
Originally Posted by Wherryj View Post
I am a physician. I am held to being "the expert" in medicine. I can't fall back on feigned ignorance and the statement that the patient should have known better than I. When an officer "can't be expected to know the entire penal code", but a citizen is held to "ignorance is no excuse", this is equivalent to ME being able to sue my patient for my own malpractice-after all, the patient should have known better, right?
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  #391  
Old 11-25-2011, 11:27 AM
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Quote:
Originally Posted by anthonyca View Post
Although the statute provides that expungement, pardon, or restoration of civil rights means that a conviction no longer disqualifies a person from possessing firearms, see 18 U.S.C. § 921(a)(33)(B)(ii), Skoien maintains that, as a practical matter, these routes to restoration are unavailable to domestic-battery misdemeanants in Wisconsin. We have our doubts. As the Supreme Court observed in Logan v. United States, 552 U.S. 23 (2007), although Wisconsin does not deprive misdemeanants of the civil rights to vote, serve on a jury, or hold public office-so these rights cannot be “restored” by the passage of time, as felons' rights often are-the state does give misdemeanants an opportunity to seek pardon or expungement. Some of the largest states make expungement available as of right to misdemeanants who have a clean record for a specified time. California, for example, has such a program. Cal.Penal Code § 1203.4a. See also Robert A. Mikos, Enforcing State Law in Congress's Shadow, 90 Cornell L.Rev. 1411, 1463-64 & nn. 187, 188 (2005) (finding that expungement increased following the enactment of § 922(g)(9)). This means that § 922(g)(9) in its normal application does not create a perpetual and unjustified disqualification for a person who no longer is apt to attack other members of the household. True, the statute tolerates different outcomes for persons convicted in different states, but this is true of all situations in which a firearms disability (or any other adverse consequence) depends on state law. The Justices held in Logan that this variability does not call into question federal firearms limits based on state convictions that have been left in place under the states' widely disparate approaches to restoring civil rights.

http://caselaw.findlaw.com/us-7th-circuit/1531142.html

Does anyone find it odd that the government argued that californians have a way to restore firearms rights after a MCDV?
I found it not only odd but very upsetting, knowing that it was in fact not true. I think that was in the US v. Skoien case and it was Chief Judge Easterbrook that argued that 922(g)(9) in its normal application does not create a perpetual and unjustified disqualification because California for example has an avenue to restore ones gun rights and not the government that argued that. I think the only dissenting judge (Sykes) in the case also found it odd that the court helped the government establish their case as much as they did with such statements.
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Old 11-25-2011, 12:31 PM
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Originally Posted by M107A1 View Post
I found it not only odd but very upsetting, knowing that it was in fact not true. I think that was in the US v. Skoien case and it was Chief Judge Easterbrook that argued that 922(g)(9) in its normal application does not create a perpetual and unjustified disqualification because California for example has an avenue to restore ones gun rights and not the government that argued that. I think the only dissenting judge (Sykes) in the case also found it odd that the court helped the government establish their case as much as they did with such statements.
You are correct. It's been a long time since I read Skoien. Even though this is a different circuit, can this majority ruling be used in Enos? The ruling judges said the lifetime ban was constitutional because of expungement in California, altleast one Enos plaintiff has an expungement. They also said some felons civil rights would be automatically restored over time by a state, in this case these misermeanants had thier civil right/2nd amendment automatically restored by the state after 10 years, thats the main argument left in Enos, and here we have a circuit ruling just under scotus saying that that would provide relief from the lifetime federal ban.

The Enos case could be the first case where a federal court rules that the second amendment is a civil right, as they have with speech, voting, sitting on a jury and holding office. Right now the second is being treated as the bastard child of civil rights.

Remember, I'm not a lawyer so I'm just asking questions here.
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Originally Posted by Wherryj View Post
I am a physician. I am held to being "the expert" in medicine. I can't fall back on feigned ignorance and the statement that the patient should have known better than I. When an officer "can't be expected to know the entire penal code", but a citizen is held to "ignorance is no excuse", this is equivalent to ME being able to sue my patient for my own malpractice-after all, the patient should have known better, right?

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Old 11-25-2011, 1:12 PM
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Originally Posted by anthonyca View Post
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Even though this is a different circuit, can this majority ruling be used in Enos?
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It can be cited as an "authority" and it is thus influential. But since it is from a different circuit it is not precedential and no court in our circuit is required to follow any guidance in Enos.
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Old 11-25-2011, 1:16 PM
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Quote:
Originally Posted by M107A1 View Post
I found it not only odd but very upsetting, knowing that it was in fact not true. I think that was in the US v. Skoien case and it was Chief Judge Easterbrook that argued that 922(g)(9) in its normal application does not create a perpetual and unjustified disqualification because California for example has an avenue to restore ones gun rights and not the government that argued that. I think the only dissenting judge (Sykes) in the case also found it odd that the court helped the government establish their case as much as they did with such statements.
Much of the purpose of this suit is to put the government in a pickle. They can either admit that the 7th is correct and ATF is misinterpreting California law, or they can create a circuit split and Don can ask SCOTUS to clarify that ATF is incorrect or the 7th is incorrect.

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Old 11-25-2011, 1:31 PM
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Much of the purpose of this suit is to put the government in a pickle. They can either admit that the 7th is correct and ATF is misinterpreting California law, or they can create a circuit split and Don can ask SCOTUS to clarify that ATF is incorrect or the 7th is incorrect.

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Quote:
Originally Posted by Wherryj View Post
I am a physician. I am held to being "the expert" in medicine. I can't fall back on feigned ignorance and the statement that the patient should have known better than I. When an officer "can't be expected to know the entire penal code", but a citizen is held to "ignorance is no excuse", this is equivalent to ME being able to sue my patient for my own malpractice-after all, the patient should have known better, right?
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Old 11-25-2011, 3:05 PM
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Does anyone find it odd that the government argued that californians have a way to restore firearms rights after a MCDV?
It is clear from the federal law that the majority of domestic violence offenders will not
regain their firearms possession right. However, there are procedures for the restoration
of the right. Namely, 18 U.S.C. § 921(a)(33)(B)(ii) excepts from the firearms ban
individuals whose domestic violence convictions have been expunged, set aside,
pardoned, or whose civil rights have been otherwise restored. There is, therefore, a
mechanism whereby domestic violence midemeanants can regain their right to lawfully
keep and bear arms. It is up to state legislatures to constrict or expand the ease with
which convicted misdemeanants may apply for and receive relief under these measures.
Page 31, line 5!
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Old 11-25-2011, 3:14 PM
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Look at page 4, EXCEPTION to 11c and 11i!
Plus, Question 11i Definition of Misdemeanor Crime of Domestic Violence:
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Old 11-25-2011, 3:25 PM
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EXCEPTION to 11.c. and 11.i.: A person who has been convicted of a felony, or any other crime, for which the judge could have imprisoned the person for more than one year, or who has been convicted of a misdemeanor crime of domestic violence, is not prohibited from purchasing, receiving, or possessing a firearm if: (1) under the law of the jurisdiction where the conviction occurred, the person has been pardoned, the conviction has been expunged or set aside, or the person has had their civil rights (the right to vote, sit on a jury, and hold public office) taken away and later restored AND (2) the person is not prohibited by the law of the jurisdiction where the conviction occurred from receiving or possessing firearms. Persons subject to this exception should answer “no” to 11.c. or 11.i., as applicable.
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Old 12-12-2011, 9:25 PM
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A Notice of additional authority was submitted by defendants on 12/06.

Erik.

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Old 12-13-2011, 3:30 PM
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I can't find the "Misdemeanor Domestic Violence penal code"! I found the "felony"penal code! But where is the misdemeanor penal code?
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