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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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  #121  
Old 05-23-2011, 5:29 PM
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Originally Posted by SunTzu View Post
I think your exactly right Otis
The only arguement I see the Feds making is that these plantiffs are not law abiding citizens. However I cant see that arguement flying, the times it has been used in other circuits the defendants had broken laws currently and in the past. The plantiffs here are seeking not to violate the law which should allow them to be considered a "Law abiding citizen"

Only legal matters i could find on the subject were:
1. Parolees are expected to be law abiding citizens
2. Illegal aliens as part of getting a visa or amnesty are required to be "law abiding citizens"

Note that both have in the past violated the law.

The one Plantiff whos conviction of 242 simple battery is being denied in clear violation of Law. The 9th circuit court has already said in Cisneros-Perez that 242 simple battery is not considered a crime of domestic violence
. What about all those 273.5 convictions for roomates, relatives or casual dating relationships. How do they meet the statutory definition of similarly situated to a spouse?

As I posted earlier if misdeamenants are not considered "law abiding Citizens" then we all are in a lot of trouble. This concept being taken on by the courts needs to be shot down in a hurry before it makes bad precedent and becomes an excuse to violate all of our Civil rights.
What about this? http://www.scotusblog.com/case-files...itcher=desktop
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  #122  
Old 05-23-2011, 5:48 PM
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Us vs Hayes was statutory interpertation.
9th circuit court ruled that a 242 simple assault does not have the required willful element of use of force and injury to meet federal definition of a violent act and therefore was not Domestic violence. You should read it. Hopefully the courts will apply the same standards for its citizens as it does for illegal aliens.

There are many deportation cases that i see could be used for the 2nd ammendment cases in the 9th circuit.

Last edited by SunTzu; 05-23-2011 at 5:51 PM.. Reason: add
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  #123  
Old 05-23-2011, 6:02 PM
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Originally Posted by SunTzu View Post
Us vs Hayes was statutory interpertation.
9th circuit court ruled that a 242 simple assault does not have the required willful element of use of force and injury to meet federal definition of a violent act and therefore was not Domestic violence. You should read it. Hopefully the courts will apply the same standards for its citizens as it does for illegal aliens.

There are many deportation cases that i see could be used for the 2nd ammendment cases in the 9th circuit.
Good point. Since the 9th likes to politic from the bench, turning their own decisions regarding illegal immigration/deportation against them would be pretty awesome.
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  #124  
Old 05-23-2011, 6:18 PM
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Someone had mentioned this here, and I am also a little curious. Why isn't the (Wegrzyn vs US) case not mentioned on this matter??
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  #125  
Old 05-23-2011, 6:37 PM
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Originally Posted by SunTzu View Post
Us vs Hayes was statutory interpertation.
9th circuit court ruled that a 242 simple assault does not have the required willful element of use of force and injury to meet federal definition of a violent act and therefore was not Domestic violence. You should read it. Hopefully the courts will apply the same standards for its citizens as it does for illegal aliens.

There are many deportation cases that i see could be used for the 2nd ammendment cases in the 9th circuit.
Thank you. I have read some other imigration cases and they seem to go easy on illegals when they are about to be deported.

There is also a case out of the ninth from Hawaii where they ruled that disorderly conduct was too broad and didn't meet the lautenberg amendment. Hawaii's disorderly conduct is very similar to California's disorderly conduct.

Isn't there a plaintiff in this case who is being denied for disorderly conduct?
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  #126  
Old 05-24-2011, 10:19 AM
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Yes, a supplemental brief was filed on Thursday. I just RECAP'd it.
Thank you appreciate the update.
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  #127  
Old 05-24-2011, 10:32 AM
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If someone commits a crime which is so horrible that makes them such a dangerous person that they cannot be trusted to own a gun they are probably not trustworthy enough to be free in society.

It's very possible the entire concept of firearm prohibition needs to be redefined.
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  #128  
Old 05-25-2011, 7:34 PM
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Words you will not hear in a California court, the Lautenberg amendment, and you are banded for life from guns!
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  #129  
Old 05-25-2011, 8:13 PM
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This case and Guras Schrader v Holder in my opinion are the 2 most important cases out there. They set a bottom threshold on diqualifyers that can ban gun ownership. Example you win shall issue case. Legislators just come back and add to the list of misdeamenors that can't get you banned for 10 years or life.
These cases will be seen far more important in the future if successful.
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  #130  
Old 05-26-2011, 4:57 AM
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Someone had mentioned this here, and I am also a little curious. Why isn't the (Wegrzyn vs US) case not mentioned on this matter??
Good question, the feds claim in Enos that this is not a civil rights issue. Wegrzyn is the only case on the books (that I know of) in the US that went against Lautenberg.
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  #131  
Old 05-26-2011, 11:18 AM
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Good question, the feds claim in Enos that this is not a civil rights issue. Wegrzyn is the only case on the books (that I know of) in the US that went against Lautenberg.
Wergrzyn held that the loss of one civil right (in this case voting) and the being automatically restored was sufficient to meet the restoration of civil rights standard in Lauetenberg ammendment. The feds argued in that case aswell as in Enos that restoration of civil rights means the big 3: Vote, Jury, Public Office. However Logan was decided before 2nd ammendment was considered a fundemental right. This really iis basis of Kilmers arguement 2nd amendment rights restored by operation of law after 10 years. It is a big stretch to argue that one of the bill of rights is not as important as their Big 3.
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  #132  
Old 05-30-2011, 7:39 PM
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Could some one tell/show me, where/what is subparagraph (C) is? And what does the number 2 mean or stand for? I would appreciate it very much!



(33)
(A) Except as provided in subparagraph (C),2
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File Type: pdf lii_usc_TI_18_PA_I_CH_44_SE_921.pdf (48.2 KB, 9 views)
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  #133  
Old 05-30-2011, 8:57 PM
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Could some one tell/show me, where/what is subparagraph (C) is? And what does the number 2 mean or stand for? I would appreciate it very much!



(33)
(A) Except as provided in subparagraph (C),2
The number 2 refers to Footnote 2 which reads "So in original. No subparagraph (C) has been enacted"
I would guess this means there is no subparagraph (C), so there is no exception to (A).
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  #134  
Old 05-31-2011, 3:01 PM
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So would a win here change the DROS, or how would a plaintiff in the case answer the first question? It asks about ever being convicted of a felony or crime listed in 12021; or convicted of assault, battery, etc. within the past 10 years. The answer is yes to the first part of the question, but no to the second part of the question.

Would the win here mean that after the 10 years and expungement, a plaintiff could answer NO to that question, and still be cleared even though he has been convicted of a crime listed in 12021? That is one of the point's, right, that the Fed's acknowledge the California expungement? Was just thinking about that last night, and was unsure how that would work, or if that is even known yet...
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  #135  
Old 06-01-2011, 11:06 AM
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I think one would just check NO. Since the 10 years has already lapsed.....
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  #136  
Old 06-16-2011, 3:14 PM
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Hi folks any recent briefs on this case? Or is it just a long waiting game now? Thank you
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  #137  
Old 06-16-2011, 5:55 PM
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Still waiting, still checking this thread 3-4 times a day!
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  #138  
Old 06-16-2011, 6:07 PM
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Still waiting, still checking this thread 3-4 times a day!
It's agonizing waiting for these rulings.
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  #139  
Old 06-16-2011, 6:39 PM
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an ex GF of mine tried to get me a DV, fortunately a roomate was there & she told the cops the truth, I never touched her and never threatened. She had called the cops ( I was living in Frisco @ the time ) and said I was "had locked myself in my room, was heavily armed and unresponsive" ( if your GF is a lawyer DO NOT win an argument if you value your sanity/freedom ) ... I was indeed "armed" as I owned a bunch of guns at the time, I was unresponsive because it was 2am & I was sleeping! The door was locked because I had my own room and didn't feel like arguing.

something like 5 cop cars showed up.
Wow. Glad you made it out a free man.

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Originally Posted by scarville View Post
I used to know a guy who claimed his DV conviction was because his wife grabbed his 35 mm camera and swung it at his head. When he dodged, the camera continued through its arc and hit her in the face. Of course he could be exaggerating. However, I've read enough stories about men convicted of DV for things that a sensible jury would toss back into the DA's face with the admonition to stop wasting the taxpayers' money and go after some real criminals.

IBTL.
Wow even more.

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Originally Posted by joe_sun View Post
Years ago I worked at a local DA's office as a CSO and it seems half my time was spent on DV cases. I'm glad to see others agree with me as the entire process left me sickened and with the mentality that you don't want cops in your life PERIOD.

Time and time again I saw men convicted in court or plead out to a DV charge because they non violently moved their girlfriend or wife out of their way while they were leaving the room. Nothing would have happened had their neighbors not called the police because they heard an argument.

Don't get me wrong, there really were wife beaters and husband beaters we dealt with but who in their right mind thinks that punching a woman in the face and non violently moving any part of her body deserve the same punishment?

I hope they win and I'll be giving them a donation.
That sucks. I think I need to donate to this case...
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  #140  
Old 06-16-2011, 7:44 PM
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Donation sent.
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  #141  
Old 06-24-2011, 4:06 PM
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I searched for "Enos" and the latest/greatest thread I saw was here...surprised Lex Arma didn't chime in with this yet!

Last week, Mr Kilmer filed a notice of Supplemental Authority in Enos. Typically in a 2A case, another 2A case is brought up as a Supplement.

Think 10A, not 2A. Think the US Supreme Court decision in Bond v United States...
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  #142  
Old 06-24-2011, 8:20 PM
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Originally Posted by krucam View Post
I searched for "Enos" and the latest/greatest thread I saw was here...surprised Lex Arma didn't chime in with this yet!

Last week, Mr Kilmer filed a notice of Supplemental Authority in Enos. Typically in a 2A case, another 2A case is brought up as a Supplement.

Think 10A, not 2A. Think the US Supreme Court decision in Bond v United States...
More good reading by the great Mr. Kilmer. We are so fortunate to have these scholars on out side. Don Kilmer, Jason Davis, Chuck Michele and his whole team, Alan Gura, don Kates, David Hardy. ( I know I am missing some others). Then we have the non lawyer "right people" and the greatest grass roots anyone can ask for.

Can I ask how you found that? I just looked for an update today around 2 and found nothing.

I am going to donate to the Madison Society again to support this case.
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  #143  
Old 06-26-2011, 10:34 PM
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This is great,a big step towards more liberty for all of us gun owners.
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  #144  
Old 06-27-2011, 4:31 AM
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Can I ask how you found that? I just looked for an update today around 2 and found nothing.

I am going to donate to the Madison Society again to support this case.
It wouldn't have been on the Internet Archive docket until I pulled it (RECAP) around 7:58pm EDT on 6/24.
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  #145  
Old 06-27-2011, 6:48 AM
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I've seen it more times than I care to mention. And it's fracking amazing how the presumption of innocence goes right out the window in DV cases.
it's amazing how convoluted the DV laws are isn't it?

it's odd...a woman can strike a man and it's called "self defense"...a man hits a woman in self defense and it's called "assault" or "domestic violence"...
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  #146  
Old 06-27-2011, 11:31 AM
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Well looks like the Feds are going to lose standing issue now for sure. I see know reason why this case shouldnt go to summary judgement. Any Legal minds have an opinion on this?
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  #147  
Old 06-27-2011, 2:56 PM
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Originally Posted by donw View Post
it's amazing how convoluted the DV laws are isn't it?

it's odd...a woman can strike a man and it's called "self defense"...a man hits a woman in self defense and it's called "assault" or "domestic violence"...
I have posted the following before. Most people don't know you don't have to hit anyone to get a dv.

I was asked to post some supporting documentation showing that ANY touching of clothing or the person is battery. This is mainly based on California jury instruction but it is similar in many places and SCOTUS talks about it in reference to 922.

While a second amendment argument was not raised, and the case concerned the 15 year ACCA not lautenberg, the issue of "unwanted touching" and misdemeanor lauterberg did come up in this case.http://www.scotuswiki.com/index.php?...Johnson_v._U.S.

The US attorney, bought up lautenberg, to the chagrin of Scalia, and argued that if they invalidated the ACCA (felony) for the slightest touching, with no injury, misdemeanor lautenberg would be comprimized.

Scalia wrote the opinion and said they were not addressing lautenberg as that was a misdemeanor and this was a felony. Johnson's case was originally a misdemeanor but under Florida law was automatically elevated to a felony due to a prior misdemeanor conviction for battery.

Johnson won his case and his conviction was reversed in a 7-2 ruling. Alito and Thomas dissented and explicitly stated that this would harm the use of lautenberg, for the same no injury touching. So the US attorney had and augment somewhat backfire on the definition of "use of force", the majority did not address the misdemeanor question, and the dissenters said this ruling would effect lautenberg on "use of force" issues. Hmmmmmm. Second amendment was not raised. What will this mean to a lautenberg challenge?

From SCOTUS Blog;

"The majority and the dissent disputed the implications of the Court’s decision. Justice Alito warned that the decision will remove statutes involving both the use of violent force and offensive touching from the scope of the ACCA; moreover, he cautioned, the decision renders the removal of aliens convicted of domestic violence more difficult insofar as the relevant statute, 8 U.S.C. § 1227(a)(2)(E), defines “domestic violence” to include the use or attempted use of “physical force.” The majority downplayed Justice Alito’s concerns as “exaggerate[ing] the practical effect of our decision,” and it pointed to the government’s success in obtaining ACCA convictions under the modified categorical approach, which allows a court to determine the basis for conviction by consulting the trial record. Though absence or incompleteness of records may make a modified categorical approach less plausible in some cases, the majority explained, it does not follow that Congress meant to avoid that “common enough consequence” by “import[ing] a term of art [into the ACCA] that is a comical misfit with the defined term ‘violent felony.’” "

Here is an interesting part. California misdemeanor battery 242, and domestic battery, 243e, does state; "A battery is any willful and unlawful use of force or violence upon the person of another", but California jury instructions state that ANY touching weather it be on the person, clothing, causes pain or injury or not, was intended to cause pain or not, and no matter how slight, constitutes a battery. Back to the "force" definition. A few federal courts have ruled that states with misdemeanor battery statutes such as Florida, Hawaii, and I think Wyoming, don't meet lautenberg because they also include offensive touching. What about California jury instructions?

Examples;

Judicial Council Of California Criminal Jury Instruction 841- Simple Battery: Against Spouse, Cohabitant, or Fellow Parent (Penal Code 243(e)(1)). ("The slightest touching can be enough to commit a [domestic] battery if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind."

People v. Rocha, (1971) 3 Cal.3d 893, 900 ("‘It has long been established, both in tort and criminal law, that the least touching' may constitute battery. In other words, force against the person is enough, it need not be violent or severe, it need not cause bodily harm or even pain, and it need not leave any mark.'"

Judicial Council Of California Criminal Jury Instruction 841- Simple Battery: Against Spouse, Cohabitant, or Fellow Parent (Domestic battery, Penal Code pc 243(e)(1)). ("Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage."

Judicial Council Of California Criminal Jury Instruction 841- Simple Battery: Against Spouse, Cohabitant, or Fellow Parent (Domestic battery, Penal Code 243(e)(1)). ("[The touching can be done indirectly by causing an object [or someone else] to touch the other person.

I can't answer your question, sorry. This may be of interest. 7th circuit ruled that intermediate scrutiny is to be used in lautenberg cases. and reversed and remanded a conviction. http://volokh.com/2010/02/22/seventh...koien-en-banc/

I also know of someone who challenged this case in a somewhat back door way. The judge did say that the man was correct and his conviction should be reversed, but it would be too important to many other second amendment cases and it was dissmissed with out prejudice. He is looking to go it again.

It's amazing to me that many hate wife beaters ( I do too) but they are legally defined as wife/ husband beaters and child abusers.
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  #148  
Old 06-27-2011, 3:38 PM
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Originally Posted by hoffmang View Post
That's the point. Once you spend your 10 years prohibited, you would become un-prohibited on day 3651.

-Gene
Nit-

Un-prohibited day is either 3652 or 3653 depending on how many leap years in the 10 year span.

365 1/4 x 10 = 3652.5, the last day is still within the 10 years.

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  #149  
Old 06-27-2011, 6:22 PM
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Nit-

Un-prohibited day is either 3652 or 3653 depending on how many leap years in the 10 year span.

365 1/4 x 10 = 3652.5, the last day is still within the 10 years.

LOL, you got me. However, I'm not sure if the law recognizes leap days in the count. It probably just handles it as the 10th anniversary which can be a variety of day counts.

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  #150  
Old 06-27-2011, 9:37 PM
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Originally Posted by Bend View Post
Nit-

Un-prohibited day is either 3652 or 3653 depending on how many leap years in the 10 year span.

365 1/4 x 10 = 3652.5, the last day is still within the 10 years.

As a further nit, if the sentence spans the non-leap year century change, it could be exactly 3651.
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  #151  
Old 06-28-2011, 11:27 AM
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Well looks like the Feds are going to lose standing issue now for sure. I see know reason why this case shouldnt go to summary judgement. Any Legal minds have an opinion on this?
same here.

Hoff, bweise,oaklander?
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  #152  
Old 06-28-2011, 4:48 PM
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same here.

Hoff, bweise,oaklander?
The DV aspect of this case makes it like the plague. I believe many leaders in the RKBA movement don't want the other side miss quoting them as wanting to give guns to wife beaters and child abusers.
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  #153  
Old 06-29-2011, 2:30 PM
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The DV aspect of this case makes it like the plague. I believe many leaders in the RKBA movement don't want the other side miss quoting them as wanting to give guns to wife beaters and child abusers.
Thats the problem for sure. But being convicted of Misd. DV does not a wife beater make necessarily. The Pro RKBA folks that dont have a clue before jumping on the torch and pitchfork bandwagon really need to get said clue.

Besides, show me another right that can be lost for life (or even 10 years) for a Misd. Conviction. Thats stupid on its face.
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  #154  
Old 06-29-2011, 3:00 PM
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Thats the problem for sure. But being convicted of Misd. DV does not a wife beater make necessarily. The Pro RKBA folks that dont have a clue before jumping on the torch and pitchfork bandwagon really need to get said clue.

Besides, show me another right that can be lost for life (or even 10 years) for a Misd. Conviction. Thats stupid on its face
.
Well said. Enos (CA) and Schrader (DC) will go a long way towards fixing this. For too long, we've allowed the bar to be set too low for our rights...rights that are now deemed "Fundamental" thanks to McDonald. 40+ cases in the Federal Courts will raise that bar.

Gen2, which will begin after these current cases run their course, will surprise us all...
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Old 06-29-2011, 3:19 PM
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Can someone explain to this ignoramus (me) how an ex-post facto law such a s Lautenberg's wasn't tossed as soon as it was passed?
I am utterly lost here as I thought there was some constitutional prohibition against this.

help me understand
PLEASE!!!
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Old 06-29-2011, 4:06 PM
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Can someone explain to this ignoramus (me) how an ex-post facto law such a s Lautenberg's wasn't tossed as soon as it was passed?
I am utterly lost here as I thought there was some constitutional prohibition against this.

help me understand
PLEASE!!!
It is not an ex post facto law, as it does not create a crime that can be enforced retroactively, but rather creates a new punishment that applies to prior convictions (but is only in force after the enactment of the law in question).
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Old 06-29-2011, 4:21 PM
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[QUOTE=tabrisnet;6682360]It is not an ex post facto law, as it does not create a crime that can be enforced retroactively,[B] [B][B]but rather creates a new punishment that applies to prior convictions (but is only in force after the enactment of the law in question).[/QUOTE]

Which is exactly why it is Ex post facto or bill of attainder.
Rulings against it being Ex post facto were all based on 2nd ammendment not being a civil right. Now that the SCOTUS has declared it a fundemental right it is an increase in punishment as it removes a civil right for a conviction that occured before the passage of the law. Only problem now is getting the courts to follow the constitution and not its political idealogy.

Last edited by SunTzu; 06-29-2011 at 4:23 PM.. Reason: grammer
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Old 06-29-2011, 4:27 PM
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Yes, they decided that it was ok to pass this law because no one that had a gun after the Misd. DV conviction would be rwtroactively prosecuted for it. The problem is that after Lautenberg passed, they had to give up thier guns.

Now, i know if a few people that would have fought to the bitter end instead of taking a DV conviction had they known they would lose thier gun rights and thier Military or Law Enforcement careers. Most military and LE can get a DUI and not lose thier jobs and only temporarily lose thier driving "privledges".

Its wrong on its face and I would even say that CA's 10 year prohibition is taking it way to far as well. Anything can happen that results in a DV conviction one time. I can understand in increased penalties for subsequent DV misdemeanors because someone obviously did not learn from previous experiences, (being in better control of yourself, ending a unhealthy relationship, or whatever). But first time offenders losing probably thier most impolrtant right of self defense for life for a Misd. is just plain wrong.
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Old 06-29-2011, 4:36 PM
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Yes, they decided that it was ok to pass this law because no one that had a gun after the Misd. DV conviction would be rwtroactively prosecuted for it. The problem is that after Lautenberg passed, they had to give up thier guns.

Now, i know if a few people that would have fought to the bitter end instead of taking a DV conviction had they known they would lose thier gun rights and thier Military or Law Enforcement careers. Most military and LE can get a DUI and not lose thier jobs and only temporarily lose thier driving "privledges".

Its wrong on its face and I would even say that CA's 10 year prohibition is taking it way to far as well. Anything can happen that results in a DV conviction one time. I can understand in increased penalties for subsequent DV misdemeanors because someone obviously did not learn from previous experiences, (being in better control of yourself, ending a unhealthy relationship, or whatever). But first time offenders losing probably thier most impolrtant right of self defense for life for a Misd. is just plain wrong.
You better believe it. I am one of those people. convicted in 1994 for an arguement that turned ugly at a bar with my girlfriend at the time. Not a spouse didnt live together but still banned for life. $25 dollar fine no DV counseling. Sure seemed like a no brainer plea bargain to me. WRONG!
Had i fought it i would have won easily but being young and stupid, trying to just get it behind me, I am now branded a wife beater. To many look at just the conviction not the actual facts and what I havemade of my life.
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Old 06-29-2011, 4:58 PM
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Which is exactly why it is Ex post facto or bill of attainder.
No, it is neither. It does not create a new crime that is enforced retroactively, it only creates a new law for which the enforcement is contingent on prior findings of fact.

An ex post facto law (from the Latin for "from after the action") or retroactive law, is a law that retroactively changes the legal consequences (or status) of actions committed or relationships that existed prior to the enactment of the law. ...
en.wikipedia.org/wiki/Ex-post_facto



A bill of attainder (also known as an act or writ of attainder) is an act of the legislature declaring a person or group of persons guilty of some crime and punishing them without benefit of a trial.
en.wikipedia.org/wiki/Bill_of_attainder
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