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Rare (Partial) Victory in Second Amendment Case:

A federal court holds that someone being prosecuted for possessing a gun after having been convicted of a domestic violence misdemeanor is constitutionally entitled to present an affirmative defense "that he posed no prospective risk of violence" (which I take it must mean no prospective risk of violence beyond that posed by the average person). The jury would thus be instructed that, if it agrees with the defendant that he posed no prospective risk of violence, it should acquit despite the flat prohibition imposed by the statute.

Here is the meat of the opinion, U.S. v. Engstrum (Stewart, D.J.) (June 15, 2009):

This matter is before the Court on Defendant's Motion for Jury Instruction regarding his possession of a firearm. The Court previously denied Defendant's Motion to Dismiss Indictment, in which Defendant argued that the Second Amendment to the U.S. Constitution protected his right to have a firearm in his house for home and self defense. In its April 17, 2009 Order, the Court found that strict scrutiny was required to justify a deprivation of an individual's Second Amendment right to keep and bear arms. The Court also found that 18 U.S.C. § 922(g)(9), which prohibits the possession of firearms by those previously convicted of a domestic violence misdemeanor, passed strict scrutiny. Finally, the Court found that § 922(g)(9) was, therefore, presumptively lawful, but that the presumption could be rebutted by a showing that the individual charged under § 922(g)(9) posed no prospective risk of violence. With regard to the Defendant, the Court found that it could not say, as a matter of law, that the Defendant posed no prospective risk of violence.

Defendant concedes that he is a restricted person, otherwise covered by § 922(g)(9). In May 2008, Defendant and his girlfriend (the "Girlfriend") were residing at a home in West Valley City, Utah (the "Residence"). On May 9, 2008, Defendant and the Girlfriend got into an argument and the Girlfriend left the Residence. On May 10, 2008, the Girlfriend returned with the police to retrieve her personal belongings, accompanied by a friend, who waited outside the Residence while the Girlfriend entered to retrieve her belongings. Defendant refused to return her things, and an argument ensued. During that argument, Defendant grabbed the Girlfriend's arm, and the Girlfriend claims she feared for her safety. The Girlfriend attempted to use pepper spray on the Defendant, but the canister did not work. Defendant took the pepper spray away from the Girlfriend and was successful in using it on her. The Girlfriend then left the Residence and called the police.

When police arrived at the Residence, the Girlfriend informed them that Defendant kept a gun in his bedroom, although the gun was never used or displayed in any way by the Defendant prior to the police arriving. Defendant allowed the police to enter the Residence, where one officer noticed an unspent round on the floor of the Residence. When officers inquired about the gun, Defendant advised them that it was in his bedroom dresser drawer, and that he had unloaded it when he learned that law enforcement would be arriving at the Residence. The officers found the unloaded gun from the bedroom dresser drawer. The gun was not taken from the Residence at that time.

On May 22, 2008, West Valley Police contacted Defendant and inquired about the gun. Defendant indicated that he owned the gun and that it was a gift from his father. There is no evidence to indicate that Defendant had ever used the firearm. However, Defendant was advised that he could not have a gun due to a prior misdemeanor domestic violence conviction. Defendant indicated to police that he would surrender the gun and ammunition. Police arrived at the Residence later that day and Defendant signed a consent to search form and surrendered the gun and ammunition....

The Court finds that Defendant may raise, as an affirmative defense, that the charged offense may not be applied to him because he posed no prospective risk of violence. Such a defense is in keeping with the law stated in the Court's April 17, 2009 Order. The Court also finds that the affirmative defense raised by Defendant does not negate any element of the offense charged. Therefore, while the government must prove every element of the charged offense beyond a reasonable doubt, if Defendant chooses to argue that he posed no prospective risk of violence, Defendant will bear the burden of proving his defense to the jury by a preponderance of the evidence. However, the defense must be supported by sufficient evidence. Therefore, the Court will only instruct the jury on Defendant's defense if the Court finds that, during the course of trial, Defendant has presented sufficient evidence to convince a reasonable jury that he does not pose a prospective risk of violence. In the event that Defendant meets that burden, the Court will instruct the jury regarding Defendant's proposed Second Amendment defense in the following terms:

The Second Amendment to the United States Constitution guarantees the fundamental right of individuals to keep and bear arms. That right may only be infringed when the restriction is narrowly tailored to meet a compelling government interest. You are instructed that 18 U.S.C. § 922(g)(9), the crime for which Defendant is charged, is, as a matter of law, a lawful and constitutional restriction of the Second Amendment rights of those who pose a prospective, or future, risk of violence.

If you find that the government has proved beyond a reasonable doubt the elements of the charge against him, as set forth in Jury Instruction Number ____, regarding Count I, you are instructed that Defendant is presumed to pose a prospective risk of violence. However, Defendant is entitled to offer evidence to rebut that presumption and show that he did not pose a prospective risk of violence. It is the burden of the Defendant to prove to you, by a preponderance of the evidence, that he did not pose a prospective risk of violence.

Therefore, if you find that the Defendant did not pose a prospective risk of violence, he may not be deprived of his Second Amendment rights, and you must find him not guilty. However, if you find that the government has proved beyond a reasonable doubt the elements of the charge against him, and that the Defendant has not proved, by a preponderance of the evidence, that he posed no prospective risk of violence, you must find the Defendant guilty.

By the way, all I could find from Pacer about Engstrum's past domestic violence misdemeanor conviction was that it was a "domestic violence assault" that had happened in "Midvale Justice Court in 2007." (The statement of facts above describes only the conduct that led to the discovery of the gun, but it was the 2007 conviction that caused Engstrum to be prosecuted for "possession of firearms by those previously convicted of a domestic violence misdemeanor.") Presumably the jury would be told about the circumstances of this past conviction, as well as about other things, in determining whether Engstrum indeed "pose[d] a prospective risk of violence" at the time of possessing the gun.

Oren:

is constitutionally entitled to present an affirmative defense "that he posed no prospective risk of violence" (which I take it must mean no prospective risk of violence beyond that posed by the average person). The jury would thus be instructed that, if it agrees with the defendant that he posed no prospective risk of violence, it should acquit despite the flat prohibition imposed by the statute.

It's almost like Congress wrote a statute banning possession of guns by felons that pose a larger than average risk of violence but somehow the Federal register didn't include that language when it published the USC.

As a gun's rights supporter, I'd rather that the courts not engage in this particular brand of activism.

Side note: does the same constitutionally-mandated affirmative defense exist for all other "combination firearms" laws? Dishonorably discharged from the military? Under-18 with a handgun? Addicted to illegal narcotics? Certainly many of those people can argue that the "pose no prospective risk of violence" despite their disqualification under Federal law.
6.18.2009 7:20pm
cboldt (mail):
The April 17 Order appears to establish the law of this affirmative defense. Would it be possible to have that Order linked in here? I suspect I can get it via PACER (probably free, since it is an Order), but others may want it as well. [Posted a link, thanks for the suggestion. -EV]
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As for this Order, I think the Court sets up an impossible threshold. The burden is effectively to prove a negative, or to prove a prospective attribute. What sort of evidence will the Court deem adequate to result in a preponderance that the defendant poses NO prospective risk of violence?
6.18.2009 7:25pm
cboldt (mail):
-- It's almost like Congress wrote a statute banning possession of guns by felons that pose a larger than average risk of violence but somehow the Federal register didn't include that language when it published the USC. --
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Check out 18 USC 922(g)(9)
(9) who has been convicted in any court of a misdemeanor crime of domestic violence
6.18.2009 7:28pm
rosetta's stones:
...a death certificate.
6.18.2009 7:29pm
arbitraryaardvark (mail) (www):
This is a positive development. It strikes a good balance.
It's not excessively easy to meet this standard, but it empowers the jury to make this decision, which is a mixed question of fact and law. The jury here is in Utah, where jurors might tend to support the right of a non-felon to own a family heirloom firearm. Let us know how this one turns out.
6.18.2009 7:31pm
Brett Bellmore:

It's almost like Congress wrote a statute banning possession of guns by felons


Except that they wrote a statute banning possession of guns by people who'd been convicted of misdemeanors, not just felons. Years after the fact. Thousands of people who'd pled guilty because hiring a lawyer would have been more expensive than the fine, or going to court to contest it would have cost them lost wages, ended up stripped of a basic civil liberty years after they'd made the decision.

It's like the government, today, decided that anybody who'd ever had a parking ticket would be stripped of their driver's license... Sure would make you regret you hadn't contested that ticket back in '73, wouldn't it?
6.18.2009 7:32pm
Brett Bellmore:

It strikes a good balance.


Like hell it does; This constitutional atrocity was upheld back when the Court was still refusing to admit the 2nd amendment guaranteed an individual right. Upheld on the basis that it somehow wasn't a punishment to strip somebody of this liberty, and that it wasn't retroactive because they'd already pled guilty.

Upholding the Lautenberg amendment was a constitutional obscenity even in the context of the abominations the Court regularly permits.
6.18.2009 7:36pm
interruptus:

Except that they wrote a statute banning possession of guns by people who'd been convicted of misdemeanors, not just felons. Years after the fact.

Although true, it was restricted specifically to violent misdemeanors, not all misdemeanors. I guess it doesn't seem that indefensible to me to prohibit ownership of guns to people who have been convicted of a violent crime of any sort. The government shouldn't need to prove that every such person poses a prospective risk of violence, if there's evidence that the class of violent-crime-convicts in general poses a heightened prospective risk of violence.

As far as post-release denials of fundamental rights, it seems more narrowly tailored to the actual state interest than denying felons the right to vote, for example.
6.18.2009 7:40pm
cboldt (mail):
From the docket sheet. I'd say this fellow has an impossible uphill battle.

05/20/2009 - Minute Entry for proceedings held before Magistrate Judge Brooke C. Wells. Motion Hearing as to Rick Engstrum held on 5/20/2009 re 31 MOTION for Review of Detention filed by Rick Engstrum. Dft preset in custody with cnsl. PTS report received and reviewed. Court heard from cnsl. Court DENIED motion and found dft constitutes a risk of danger to the community. Dft remanded to USMS. Written Order to follow oral order

Reading the April 17, 2009 Order right now ...
6.18.2009 7:46pm
ohwilleke:
Dimes to dollars that this deccision is reversed. It is hard to imagine any domestic violence conviction that does not constitute an elevated risk of violence prospectively by anyone capable of using a gun.

I suppose that one could argue that someone rendered parapalegic after the domestic violence conviction who had no domestic companions wasn't a risk of future violence. But, it is hard to see even a constitutional right to armed self-defense drawing so fine a line.

Honestly, I think that a felon with a forgery or insider trading conviction, for example, which has no elements of violence or use of force or impulsivity, has a much stronger constitutional case than non-felon for a misdemeanor conviction that is, by definition, violent.
6.18.2009 7:57pm
ruuffles (mail) (www):

Like hell it does; This constitutional atrocity was upheld back when the Court was still refusing to admit the 2nd amendment guaranteed an individual right. Upheld on the basis that it somehow wasn't a punishment to strip somebody of this liberty, and that it wasn't retroactive because they'd already pled guilty.

Ah yes, those pesky follow-up questions that Glover warned us about when he dissented from Heller. Oh wait ...
6.18.2009 7:57pm
Brett Bellmore:

I guess it doesn't seem that indefensible to me to prohibit ownership of guns to people who have been convicted of a violent crime of any sort.


It seems pretty indefensible to me to say, "Yes, when you pled guilty, you thought you were paying a $50 fine, but now that you've done so, and can't take it back, we're going to pretend you pled guilty to a major felony, and take your civil rights away."
6.18.2009 7:59pm
Downfall:
...a death certificate.

Rosetta's, you are on a tear today. Well done.
6.18.2009 8:01pm
Oren:

Check out 18 USC 922(g)(9)

(9) who has been convicted in any court of a misdemeanor crime of domestic violence


My mistake about the felony/misdemeanor distinction, although I don't see the relevance to the constitutional argument.


... ended up stripped of a basic civil liberty years after they'd made the decision.

That's generally how it works. Felons are stripped of the right to vote indefinitely too, I don't see you crying over their suffrage (a constitutional interest certainly no less important than RKBA). A lot of felons didn't contest their convictions for a variety of reasons.

Even more damning, you can lose your RKBA for being dishonorably discharged from the military even though such a finding is not made before an impartial tribunal. No tears their either, huh?


Upheld on the basis that it somehow wasn't a punishment to strip somebody of this liberty, and that it wasn't retroactive because they'd already pled [sic] guilty.

It's hardly retroactive, it's a crime in the present tense to be a certain class of person and possess a firearm.
6.18.2009 8:02pm
skibum3157 (mail):

As far as post-release denials of fundamental rights, it seems more narrowly tailored to the actual state interest than denying felons the right to vote, for example.

I agree - but you have to also keep in mind that denying felons the right to vote is also expressly authorized in the Fourteenth Amendment.

Although the law is restricted to violent misdemeanors, the fact that the charge is a misdemeanor is still significant because it affects the degree of the interest involved. The fact that the offense is not serious enough to warrant more than 1 year imprisonment really makes you question whether denying the defendant of a fundamental right satisfies strict scrutiny.
6.18.2009 8:02pm
Oren:

It seems pretty indefensible to me to say, "Yes, when you pled guilty, you thought you were paying a $50 fine, but now that you've done so, and can't take it back, we're going to pretend you pled guilty to a major felony, and take your civil rights away."

You have a pretty flippant attitude towards DV, Brett. A more apt dialog would be: "When you plead guilty, you admitted to an act of violence against another person in gross violation of their rights. Now that you've demonstrated (beyond a reasonable doubt) an inability to respect the rights of others, we believe it's prudent to restrict your access to tool that might be used in a repeat offense."

The whole reason I support the RKBA is that I believe that every citizen has a fundamental human right not to be murdered, raped, robbed, assaulted or smacked around (and that the RKBA is the only feasible means to that end). To turn around and use the RKBA to defend someone who does not recognize this is cruel irony. It is the corruption of a tool to be used by those whose rights have been violated into one that prevent society from punishing those with contempt for those rights.
6.18.2009 8:10pm
Oren:

The fact that the offense is not serious enough to warrant more than 1 year imprisonment really makes you question whether denying the defendant of a fundamental right satisfies strict scrutiny.

Why does the length of imprisonment matter here?

Institutionalization (or being adjudged mentally incompetent or mentally insane) leads to the loss of the RKBA. Dishonorable discharge from the military does too. As does being a drug addict. Neither of these carries any jail time at all.
6.18.2009 8:12pm
Brett Bellmore:

Felons are stripped of the right to vote indefinitely too


And they know that at the time they plead. But Lautenberg applies to people who pled guilty before it was enacted. It sucked in people who pled guilty way back when misdemeanors were misdemeanors, and pleading guilty to one couldn't possibly cost you your rights.

Ok, people know TODAY that some misdemeanors are really felonies now. They had no way to know 30 years ago that the minor offense they pled guilty to, to avoid losing time at work, would be transformed decades later into a felony, after it was too late to change their mind about pleading guilty.

THAT is the constitutional atrocity here. The Court stared a genuine, honest to goodness ex post facto law in the face, and refused to admit what they were looking at.
6.18.2009 8:14pm
Steve:
Maybe I'm misunderstanding the context, but isn't Brett's concern more properly framed as a criticism an ex post facto imposition of a new penalty for the original misdemeanor offense? I mean, at the time you decide whether to plead guilty it seems like you ought to know what the consequences will be.
6.18.2009 8:15pm
cboldt (mail):
-- My mistake about the felony/misdemeanor distinction, although I don't see the relevance to the constitutional argument. --
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The April 17, 2009 Amended Memorandum Decision and Order discusses the relevance of the specific charge (922(g)(9)) to the specific jury instruction.
6.18.2009 8:20pm
Steve:
Oh, I see Brett finally got there. Well, can you really retroactively take away a civil liberty like that? Surely there must be case law.
6.18.2009 8:22pm
cboldt (mail):
-- As does being a drug addict. --
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Yep. Even broader than that, one bong hit, and your gun rights evaporate.
(3) who is an unlawful user of or addicted to any controlled substance ...
6.18.2009 8:26pm
Oren:

I mean, at the time you decide whether to plead guilty it seems like you ought to know what the consequences will be.

You mean to say, when flying cars are invented, everyone with a DUI must be allowed to drive one because, when they plead guilty to DUI, they did not know that the consequences might include disqualification from a flying-car license?

Past convictions are part of the public record and are fair game -- when you plead guilty you acknowledge that.
6.18.2009 8:29pm
Oren:
cboldt, good eye. I skimmed that and my brain only got the 'addicted' part.

Zero jail time for that bong hit (in most of the blue states, anyway) so where's the outrage?
6.18.2009 8:30pm
Zaphod Beeblebrox:
You mean to say, when flying cars are invented, everyone with a DUI must be allowed to drive one because, when they plead guilty to DUI, they did not know that the consequences might include disqualification from a flying-car license?


You're being deliberately obtuse if you don't see a distinction between that and this situation
6.18.2009 8:34pm
Oren:

You're being deliberately obtuse if you don't see a distinction between that and this situation

So, spell it out for me. Steve says that a basic element of fairness is knowledge of what a conviction entails, which seems to be entirely unworkable and an impermissible restriction on the right of the legislature to legislate with respect to convicted felons.
6.18.2009 8:37pm
Oren:
Convicted felons and those convicted of misdemeanor crimes of violence ...
6.18.2009 8:41pm
cboldt (mail):
and fugitives from justice, and drug users including medical pot smokers. I can easy imagine adding a category for those who receive reckless driving and/or drunk-drive convictions as lacking the sort of self-restraint that should accompany possession of a firearm or sharp knife.
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The legislature will resist restriction on its power to legislate retroactive "remedies" for public safety.
6.18.2009 8:50pm
Officious Intermeddler:
It is hard to imagine any domestic violence conviction that does not constitute an elevated risk of violence prospectively by anyone capable of using a gun.


I respectfully suggest that you don't have a very good imagination.
6.18.2009 8:55pm
Oren:
That's a good one -- I should add not being mowed down by a Range Rover driven by a drunk moron to my list of fundamental rights.
6.18.2009 8:56pm
David Hardy (mail) (www):
"So, spell it out for me. Steve says that a basic element of fairness is knowledge of what a conviction entails, which seems to be entirely unworkable and an impermissible restriction on the right of the legislature to legislate with respect to convicted felons."

Done here in AZ. Court must advise a person taking a plea not only of the punishment, but also of (I forget the exact terminology) of any significant collateral effects. Not doing crim. work, I don't know if that's required by rule, statute, or constitution. As a generality, the requirement that a defendant taking a plea be informed of the consequences derives from the consideration that he is waiving his rights to trial, confrontation, calling of witnesses, jury trial in some cases, and trifles like that.
6.18.2009 9:10pm
rmd:
Someone correct me if I'm mistaken here (yeah right, like I have to ask,) but doesn't Lautenberg also apply to those who are subject to a restraining order? Which can be had without anyone ever being convicted of anything.

Per the above comment about "flippant attitude towards domestic violence," I would support making it a felony and simultaneously doing away with the Lautenberg Amendment.

As for the other less-than-felony situations mentioned above, like dishonorable discharge, nonviolent drug use and so forth, count me as outraged that those people are being denied their fundamental rights as well.
6.18.2009 9:19pm
Kelly Ann:
So Judge Stewart rests his holding on a strict scrutiny standard for 922(g)(9) defendants [domestic violence misdemeanants]; is there precedence out there yet that establishes strict scrutiny as the standard for 922(g)(1) defendants [felons]?

I have a 922(g)(1) case in front of Judge Stewart with good "prospective non violence" facts. I would think my client would be entitled to this instruction, assuming there isn't a different standard which may foreclose the defense for felons. Any thoughts you academic geniuses? Eugene, help a girl out!
6.18.2009 9:21pm
cboldt (mail):
In Massachusetts, the law relating to permission to posess was changed from "perpetual" to "expires." In other words, the perpetual permit changed to one that must be periodically renewed. Failure to renew the perpetual license results in risk of greater than one year in jail.
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Manso fires back on gun indictment - Provincetown, MA
6.18.2009 9:33pm
Steve:
Steve says that a basic element of fairness is knowledge of what a conviction entails, which seems to be entirely unworkable and an impermissible restriction on the right of the legislature to legislate with respect to convicted felons.

I don't know what part of the Constitution provides the "right of the legislature to legislate with respect to convicted felons," but I know which part provides the people with their right to be free of ex post facto laws.

The argument strikes me as nontrivial in this context and entirely different from the frivolous "flying car" example. There was absolutely nothing preventing the legislature from including a ban on gun ownership as part of the punishment at the time they originally passed the statute, but they didn't. After someone has already been convicted, if they decide to increase the punishment, how the heck can anyone say it's just like if a flying car had been invented?

I actually understand the legal argument here, having researched it notwithstanding your lack of seriousness, but I do think it's a bit Orwellian.
6.18.2009 9:37pm
cboldt (mail):
-- doesn't Lautenberg also apply to those who are subject to a restraining order? Which can be had without anyone ever being convicted of anything. --
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I don't know if the RO provision is under the Lautenberg amendment, but yeah, conviction isn't required. It's not required for being a fugitive from justice either (flee from any State to avoid giving testimony in any criminal proceeding = fugitive from justice).
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For the RO-based violation, the RO must issue after a hearing of which such person received actual notice, and at which such person had the opportunity to participate. AFAIK, Courts give freely grant RO's, because they are perceived as not any more onerous than the general burden of general law - "don't harm anybody." The only difference being that these RO's name the specific person you can't attempt to harm.
6.18.2009 9:40pm
Bart (mail):
The Colorado right to keep and bear arms expressly states that self defense is a purpose of the provision. To make the Colorado statute prohibiting felons and certain misdemeanants from possessing firearms, the Colorado Supreme Court held that defendants could offer an affirmative defense that they possessed the firearm for self defense. I prefer this affirmative defense to the far more subjective one used in this case where the Defendant must somehow prove that he or she is not a danger.
6.18.2009 9:53pm
Bart (mail):
Corrected:

The Colorado right to keep and bear arms expressly states that self defense is a purpose of the provision. To make the Colorado statute prohibiting felons and certain misdemeanants from possessing firearms constitutional, the Colorado Supreme Court held that defendants could offer an affirmative defense that they possessed the firearm for self defense. I prefer this affirmative defense to the far more subjective one used in this case where the Defendant must somehow prove that he or she is not a danger.
6.18.2009 9:55pm
Borris (mail):

It seems pretty indefensible to me to say, "Yes, when you pled guilty, you thought you were paying a $50 fine, but now that you've done so, and can't take it back, we're going to pretend you pled guilty to a major felony, and take your civil rights away."

Civil rights?
But these are men.
I thought civil rights were reserved for women and minorities.

Don't you have empathy for these people?
6.18.2009 9:56pm
cboldt (mail):
-- I have a 922(g)(1) case in front of Judge Stewart with good "prospective non violence" facts. I would think my client would be entitled to this instruction, assuming there isn't a different standard which may foreclose the defense for felons. --
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The legal theory in this case appears to have been crafted by defense counsel and found persuasive by the Court. It appears to make a carve out under 922(g)(9), that is unique to 922(g)(9).
The United States Supreme Court has stated that the purpose of § 922(g)(9) is to keep firearms out of the hands of those who are "presumptively risky." Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 112 n.6 (1983).
The Court, therefore, finds that the compelling government interest being furthered by § 922(g)(9) is the protection of domestic partners and children from firearms violence by keeping firearms out of the hands of those who pose a prospective risk of violence. Moreover, weighing the interests of the innocent against the fundamental rights guaranteed the accused by the Second Amendment, the risk must be more than de minimis. [I think this is EV's "standard person" test]
At the time that Congress was considering passage of § 922(g)(9), many of these individuals were not convicted of felonies, due to the vagaries of state law governing domestic violence, so these individuals were not, at the time, all covered by the general prohibition of possession by convicted felons. Not every individual convicted of a domestic violence misdemeanor fits within the classification described in the legislative history, in that not all domestic violence misdemeanants have shown they cannot control themselves or are prone to fits of violent rage.

You'll need to review the specific statute that produces the underlying conviction for 922(g)(1) purposes, and work from there. I don't this case provides any direct help, except it uses strict scrutiny to elevate the defendant's 2nd amendment right sufficiently to permit rebutting the presumption, should a jury convict.
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IIRC, there is some federal gun-rights carve out that eliminates the loss of RKBA for securities related fraud convictions.
6.18.2009 9:57pm
Oren:

Court must advise a person taking a plea not only of the punishment, but also of (I forget the exact terminology) of any significant collateral effects.

Including ones the legislature will pass in the future, of course.
6.18.2009 10:04pm
Oren:

Per the above comment about "flippant attitude towards domestic violence," I would support making it a felony and simultaneously doing away with the Lautenberg Amendment.

That works for me too. The defendant in this case, for instance, certainly strikes me as the sort of person whose respect for the rights of others could do with some rehabilitation.


At the time that Congress was considering passage of § 922(g)(9), many of these individuals were not convicted of felonies, due to the vagaries of state law governing domestic violence

Vagaries? The fact that an assault/battery that earned you a felony if committed against a stranger magically converts into a jail-free misdemeanor because it is committed against a loved one might be a bizarre notion but it was quite intentional.
6.18.2009 10:09pm
Oren:

IIRC, there is some federal gun-rights carve out that eliminates the loss of RKBA for securities related fraud convictions.

On a related note, I would support reworking the GCA to include only violent felonies. Kind of like it includes misdemeanors that are violent ...
6.18.2009 10:10pm
David Hardy (mail) (www):
Me: "Court must advise a person taking a plea not only of the punishment, but also of (I forget the exact terminology) of any significant collateral effects.
_________________
Oren: Including ones the legislature will pass in the future, of course."

Of course it cannot. But that's exactly the point. Defendant has been induced to waive his constitutional rights by a certain offer. Having gotten the agreement, the legislature cannot later alter the terms. It can't let people plead to disorderly conduct, and at a later date decide that the plea will strip them of voting rights, or result in three years' probation instead of six months.
6.18.2009 10:22pm
Disintelligentsia (mail):
Personally I think that the Lautenberg amendment should be outside Congressional reach. Damn Wickard v. Filburn. It's a hell of a stretch to call DV legislation a regulation of commerce "among the several states". I had some glimmer of hope with Lopez that this kind of crap would be reigned in, but Raich pretty well eviscerated the Lopez rationale.
6.18.2009 10:22pm
cboldt (mail):
I would support reworking the GCA to include only violent felonies
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What about the "bootstrap" ones? E.g., possession of a forbidden type of firearm -> forever barred from lawful possession of firearm. Also, possession in a school zone. Also, possession while dealing drugs.
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All rhetorical. Congress would never give up any of that ground, and if the affirmative defense of this Court ever gets traction, I think the legislature would close the DV misdemeanor loophole in a heartbeat.
6.18.2009 10:28pm
kirby (mail):

@Oren

Even more damning, you can lose your RKBA for being dishonorably discharged from the military even though such a finding is not made before an impartial tribunal.


So Courts martial are not impartial tribunals? DD's are not an administrative discharge-they can only be awarded by a general court.
6.18.2009 10:41pm
Steve:
Having gotten the agreement, the legislature cannot later alter the terms. It can't let people plead to disorderly conduct, and at a later date decide that the plea will strip them of voting rights, or result in three years' probation instead of six months.

Actually, I think the state can strip criminals of voting rights retroactively. See Simmons v. Galvin, 2007 U.S. Dist. LEXIS 64358 (D. Mass. Aug. 30, 2007). The Simmons court held that there was no violation of the Ex Post Facto clause because the disenfranchisement statute was merely a regulation of the franchise as opposed to a punitive measure (buy that or not as you choose).

But hey, following the logic of these felon-in-possession laws, it really doesn't matter if you can be disenfranchised retroactively or not. Instead of passing a law retroactively barring felons from voting, the legislature just needs to pass a law making it a new crime to vote if you're a felon! Apparently the courts find that logic unimpeachable in the gun context.
6.18.2009 10:44pm
Oren:


Of course it cannot. But that's exactly the point. Defendant has been induced to waive his constitutional rights by a certain offer. Having gotten the agreement, the legislature cannot later alter the terms.

If we understand a plea bargain as an "offer" under your terms, then it is an offer that the legislature is not competent to make, since it cannot bargain away the right of future legislatures.
6.18.2009 10:49pm
cboldt (mail):
Raich pretty well eviscerated the Lopez rationale.
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The Lopez decision included instructions to Congress, as to how to compose a GFSZ statute that would survive SCOTUS review. Congress promptly followed the instructions.
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Raich has been used, at SCOTUS instruction, to uphold 922(o) for a homemade machine gun that never crossed a state line (maybe never crossed a property line!). US v. Stewart.
6.18.2009 10:52pm
Oren:

It's a hell of a stretch to call DV legislation a regulation of commerce "among the several states".

It's not DV regulation, it's regulation of firearms that travel in interstate commerce. Of course, I don't buy that either, but don't misstate the (putative) justification for the law just to make your point!

... to ship or transport in interstate or foreign
commerce, or possess in or affecting commerce, any
firearm or ammunition; or to receive any firearm or
ammunition which has been shipped or transported in
interstate or foreign commerce.
6.18.2009 10:54pm
Oren:

Instead of passing a law retroactively barring felons from voting, the legislature just needs to pass a law making it a new crime to vote if you're a felon!

It is felony perjury to fill out voter registration card in MA if you are a convicted felon (since you swear under penalty of perjury that you are not). It's not a new crime, it's a very old one.
6.18.2009 10:57pm
Oren:

So Courts martial are not impartial tribunals? DD's are not an administrative discharge-they can only be awarded by a general court.

Thanks, did not know that. That accepted, a DD (alone) carries no jail time and still disqualifies from firearm ownership.
6.18.2009 10:58pm
Oren:

What about the "bootstrap" ones? E.g., possession of a forbidden type of firearm -> forever barred from lawful possession of firearm. Also, possession in a school zone. Also, possession while dealing drugs.

Like I said, I'd like the list reduced to violent felonies, of which possession of an illegal firearm, possession of a firearm illegally or possession as an instrument of dealing drugs are not.


All rhetorical. Congress would never give up any of that ground, and if the affirmative defense of this Court ever gets traction, I think the legislature would close the DV misdemeanor loophole in a heartbeat.

I don't know, you could probably sell the restriction of ownership to all violent crime as an "expansion" since it will now include misdemeanor A&B. Of course, it will exclude a lot of felonies currently included too.
6.18.2009 11:01pm
cboldt (mail):
-- It's not DV regulation, it's regulation of firearms that travel in interstate commerce --
.
Word games. Take the view that the law does not regulate DV conduct. Well, sure. All it does is impose a prohibition -if- there is a DV conviction or qualifying RO.
.
A person's ability to lawfully possess any firearm hinges on not running afoul of a federal law that proscribes possession on a misdemeanor DV conviction or RO.
.
That "travel" requirement is phony. See "or affecting [interstate] commerce."
6.18.2009 11:07pm
David Hardy (mail) (www):
"Thanks, did not know that. That accepted, a DD (alone) carries no jail time and still disqualifies from firearm ownership."

Once did a bit of research on the point.... the DD prohibition came in in 1968 because (1) one Senator said that if a fellow couldn't be counted on to carry a gun for his country, he shouldn't be able to carry one outside of service, either, and (2) a realization that Lee Harvey Oswald was not a felon, etc. and so the proposed bill would not have affected him.

As it turned out, Oswald did not have a DD, but some lesser grade of not-honorable discharge, but Congress didn't figure that out.

The bar on people who have renounced US citizenship came about because movie stars (Richard Burton? Eliz Taylor? memory is foggy) were doing that to protest the Vietnam War and in the course of it lower their taxes.

If you enjoy sausage or laws, you should not watch either being made.
6.18.2009 11:21pm
cboldt (mail):
-- Like I said, I'd like the list reduced to violent felonies, of which possession of an illegal firearm, possession of a firearm illegally or possession as an instrument of dealing drugs are not. --
.
You don't get to define "crime of violence." "Crime of violence" is statutorily defined in 18 USC 16. A bomb threat hoax is a crime of violence, because it is an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another. One Circuit Court has held that statutory rape is a crime of violence. All "possession of a gun while [doing something else illegal, like selling drugs]" are crimes of violence - why else would you have the gun? goes the logic.
.
I like your notion of what constitutes a violent felony better. But you aren't going to get it your way any more than I'd get it my way. The government busybodies are determined to reduce the rate of gun ownership.
6.18.2009 11:27pm
David M. Nieporent (www):
If we understand a plea bargain as an "offer" under your terms, then it is an offer that the legislature is not competent to make, since it cannot bargain away the right of future legislatures.
Uh, yes, it can. See Fletcher v. Peck.

And specifically, the ex post facto clause has the operative effect of doing what you claim can't be done.
6.18.2009 11:53pm
Disintelligentsia (mail):
Oren -
It's not DV regulation, it's regulation of firearms that travel in interstate commerce. Of course, I don't buy that either, but don't misstate the (putative) justification for the law just to make your point!

Is it really a firearms regulation under the interstate commerce clause? It regulates possession, not just purchase or transport. If someone owned a firearm before he had a misdemeanor DV conviction, then it has nothing to do with commerce -- there is no ongoing potential for it to affect commerce (unless they want to prohibit him from selling the firearm). Likewise if he received a firearm as a wrapped gift from someone.

Now of course the article has still "traveled in commerce" by crossing state lines, but it doesn't effect the flow of commerce once it has come to rest -- it would make greater sense under the commerce clause if the restriction was upon someone purchasing a firearm if convicted of DV or a felony.
6.19.2009 12:08am
green-grizzly (mail):
The justice court where he was convicted of the DV misdemeanor is not a court of record, so it could be difficult to figure out the details.
6.19.2009 12:48am
Oren:


I like your notion of what constitutes a violent felony better. But you aren't going to get it your way any more than I'd get it my way. The government busybodies are determined to reduce the rate of gun ownership.

True enough.

DI, you are preaching to the choir. My only point was that, putatively, the regulation hinges on the firearms traffic being interstate, not on DV having interstate effects. Bogus either way, but it helps to be accurate about the bogus claims, imo.
6.19.2009 12:48am
Oren:
Fletcher v. Peck is inapt -- I'm not talking about the sale of land but regulation of the RKBA (which, as Scalia notes, is fundamental but not absolute and therefore must be amenable to some regulation). In this context, Simmons v. Galvin is more appropriate. The franchise is as import as the RKBA, and yet MA is allowed to regulate the franchise by disqualifying felons even when that penalty was not in place at the time of conviction.

Also, it's 2007, not 1810!
6.19.2009 12:49am
Steve:
Does Scalia really say the RKBA is "fundamental but not absolute"?
6.19.2009 12:52am
green-grizzly (mail):
I found the docket for the Midvale justice court case.

CASE NUMBER 061000284

It looks he had a bench trial and was found guilty on 3/2/07. Apparently, the last name of the victim was Miller. I don't know if that is the girlfriend in the federal case.

He was pro se.

He has a prior conviction for possession. There is also a 2006 DV case that was dismissed for some reason, with the same victim.
6.19.2009 12:57am
Disintelligentsia (mail):
I think US v. Morrison, 529 U.S. 598 (2000) makes my point regarding the restriction of firearm ownership for DV misdemeanants:

Finally, our decision in Lopez rested in part on the fact that the link between gun possession and a substantial effect on interstate commerce was attenuated. Id., at 563-567. The United States argued that the possession of guns may lead to violent crime, and that violent crime "can be expected to affect the functioning of the national economy in two ways. First, the costs of violent crime are substantial, and, through the mechanism of insurance, those costs are spread throughout the population. Second, violent crime reduces the willingness of individuals to travel to areas within the country that are perceived to be unsafe." Id., at 563-564 (citation omitted). The Government also argued that the presence of guns at schools poses a threat to the educational process, which in turn threatens to produce a less efficient and productive workforce, which will negatively affect national productivity and thus interstate commerce. Ibid.

We rejected these "costs of crime" and "national productivity" arguments because they would permit Congress to "regulate not only all violent crime, but all activities that might lead to violent crime, regardless of how tenuously they relate to interstate commerce." Id., at 564. We noted that, under this but-for reasoning:

"Congress could regulate any activity that it found was related to the economic productivity of individual citizens: family law (including marriage, divorce, and child custody), for example. Under the[se] theories ... , it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign. Thus, if we were to accept the Government's arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate." Ibid.
529 U.S. 598, (2000)

and

"Gender-motivated crimes of violence are not, in any sense of the phrase, economic activity. While we need not adopt a categorical rule against aggregating the effects of any noneconomic activity in order to decide these cases, thus far in our Nation's history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature. See, e.g., id., at 559-560, and the cases cited therein. "

and

As we stated in Lopez, " `[S]imply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so.' " 514 U. S., at 557, n. 2 (quoting Hodel, 452 U. S., at 311 (Rehnquist, J., concurring in judgment)). Rather, " `[w]hether particular operations affect interstate commerce sufficiently to come under the constitutional power of Congress to regulate them is ultimately a judicial rather than a legislative question, and can be settled finally only by this Court.' " 514 U. S., at 557, n. 2 (quoting Heart of Atlanta Motel, 379 U. S., at 273 (Black, J., concurring)).

--
Congress, under the SCOTUS precedents, can only regulate three areas: 1. Instrumentalities of commerce, 2. Those things or persons IN interstate commerce and 3. those activities that substantially affect interstate commerce. How does a misdemeanant's possession of a firearm relate to any of those three things?
6.19.2009 12:58am
Oren:
Wait, wrong cite there.
6.19.2009 1:00am
Oren:
Disintelligentsia, I hope that Morrison &Lopez will continue to be read that way. Somehow, I fear they will be conveniently forgotten.
6.19.2009 1:01am
DV:
For over 6 months as a PD I specialized in DV defense. Let me tell you, calling some of the crimes that people end up pleading to domestic violence as commonly understood is ridiculous. I've seen numerous cases charged and pled where both parties admit no more than a single push happened or someone grabbed and pulled on a person's arm as that person was walking away from them. Two hypothetical trials set for the next week or so involve a HC who lunged towards his GF putting her in "reasonable fear" and a HC who threw a dish at the sink where it broke (DV property crime). Should these people lose their gun rights for life if convicted?

I've seen people plead where they were in 20+ year relationships w/ their significant other w/o violence before one push or slap cost them their gun rights. DV misdemeanors are a joke 75% of the time in my experience.
6.19.2009 1:30am
whit:

It seems pretty indefensible to me to say, "Yes, when you pled guilty, you thought you were paying a $50 fine, but now that you've done so, and can't take it back, we're going to pretend you pled guilty to a major felony, and take your civil rights away."



it was ex-post facto as hell. fwiw, there were a fair # of cops who had pled guilty to misdemeanor dv charges based on plea agreements that they'd get to keep their jobs, etc. and these people successfully completed probation and then YEARS LATER, boom - they lose their career (and any chance of a law enforcement career) based on the fact that they were NOW prohibited from carrying a firearm


Per the above comment about "flippant attitude towards domestic violence," I would support making it a felony


all domestic violence assaults?

i've been slapped 3 times in the past by girlfriends ( i deserved it twice). of course i did not call police, but if i did, you are ok with a girl being charged with a felony cause she slapped her boyfriend and ends up a convicted felon?

seriously?
6.19.2009 2:32am
Kirk:
Disintelligentsia,

Well, yeah, you're just rediscovering how contemptibly dishonest our current commerce-clause "jurisprudence" is.
6.19.2009 3:46am
TruePath (mail) (www):
What I find entertaining is the second disjunct of g 3.


who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));


Now one might think that 'addicted' is defined in 21 U.S.C. 802 but you would be mistaken. Rather 'addict' is defined in terms of addiction/addicted. In particular the relevant section is:


The term “addict” means any individual who habitually uses any narcotic drug so as to endanger the public morals, health, safety, or welfare, or who is so far addicted to the use of narcotic drugs as to have lost the power of self-control with reference to his addiction.


So if we are to make any sense of 21 U.S.C. 802 we must understand 'addicted' as applying to people who have not lost the power of self-control. Indeed, presumably we must use the medical notion or plain language meaning since the term is used undefined in the statue.

The upshot of all this is that if you are prescribed pain medication chronically or any other habit forming controlled substance you seem to be bared from gun possession. Heck, even if you insist that 'addict' was meant instead of addicted in the above you still have no idea if you've "lost the power of self-control." I mean after all if you are receiving medications from a doctor you have no idea what you might do if they were suddenly stopped (instead of tapered responsibly).
6.19.2009 4:00am
TruePath (mail) (www):
Two points on the actual debate:

1) Oren, your ultimate reasons for liking the RKBA are irrelevant. The point (as I detail below) is that if it's a real right you have to treat it like one and that means it can't be denied to you just because the government decides you fit into some scary class (we all fit into SOME scary class).


2) ex post facto issue

This is just a disguised debate about what status to accord the RKBA.

I mean just suppose the government tried to pass a law that put everyone who had ever been convicted or plead guilty to DV into prison for an extra year or forbade them from associating with any ex-lover. This would clearly be unconstitutional. You can't take away fundamental rights like these after the fact.

On the other hand if the government decided to bar anyone with a past DV conviction from being issued a DEA number to prescribe controlled substances no issue at all. Even though there is a decent argument that people have a constitutionally protected right to be treated for pain.

So basically it just comes down to whether you take the RKBA to be a full fledged individual right like speech, liberty, etc.. or whether it's an individual right only in the sense that congress can't take away guns from all individuals (as it couldn't take away the right to prescribe pain killers from all doctors w/o some replacement).
6.19.2009 4:27am
David M. Nieporent (www):
It seems pretty indefensible to me to say, "Yes, when you pled guilty, you thought you were paying a $50 fine, but now that you've done so, and can't take it back, we're going to pretend you pled guilty to a major felony, and take your civil rights away."

You have a pretty flippant attitude towards DV, Brett. A more apt dialog would be: "When you plead guilty, you admitted to an act of violence against another person in gross violation of their rights. Now that you've demonstrated (beyond a reasonable doubt) an inability to respect the rights of others, we believe it's prudent to restrict your access to tool that might be used in a repeat offense."
Except that misdemeanor "domestic violence" is -- or at least can be -- extremely trivial, so a flippant attitude can be justified. And misdemeanor DV really has nothing to do with guns, so claiming it's a "tool that might be used in a repeat offense" is silly. One might use a gun to kill a police officer who tries to give one a speeding ticket, but that doesn't mean a gun is a "tool that might used in a repeat speeding offense."
6.19.2009 6:05am
Brett Bellmore:
And because, as seems to have slipped some people's attention, where the penalties for conviction of a misdemeanor are fairly low, people sometimes plead guilty to an offense they never committed. Simply because the only thing it could legally cost them, at the time, was a bit of money, and they'd lose more of that by taking time off from work to contest the charge, and hiring a lawyer to contest it with.

The exact same reason you might not contest a parking ticket today. And, with the precedent upholding Lautenberg, lose some fundamental right in 2039, when Congress up and decides that parking tickets are a big hairy deal. Say because they want to pare back the number of older folks voting, and almost everybody over 50 has at least one parking ticket on their record.

If it's a law Congress has jurisdiction over, they can decide that an offense that's a misdemeanor today really ought to be a felony tomorrow. But with Lautenberg, what they decided was that an offense that was a misdemeanor back in '73, should have been a felony, and changed it reaching back.

That's the very essence of ex post facto, and the Court blinked. What do you have to do around here to get a law struck down as ex post facto? Title it "The Ex Post Facto Act of 2009"?
6.19.2009 6:30am
cboldt (mail):
-- Does Scalia really say the RKBA is "fundamental but not absolute"? --
.
Not directly, in the sense it is said in formal US Con Law as pertaining to some content memorialized in the Bill of Rights. The blow passage (cites excised) includes ALL of the occasions of the word "fundamental" appearing in the Heller majority opinion, in reference to the RKBA.
.
By the time of the founding, the right to have arms had become fundamental for English subjects. Blackstone, whose works, we have said, "constituted the preeminent authority on English law for the founding generation," cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, "the natural right of resistance and self-preservation," and "the right of having and using arms for self-preservation and defence." Other contemporary authorities concurred. Thus, the right secured in 1689 as a result of the Stuarts' abuses was by the time of the founding understood to be an individual right ...

What Scalia did say was "that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited ..."
6.19.2009 6:33am
cboldt (mail):
-- Well, yeah, you're just rediscovering how contemptibly dishonest our current commerce-clause "jurisprudence" is. --
.
Yep. And especially so in regards to the RKBA. The federal courts radically misconstrue binding precedent (Presser and Miller) as holding the OPPOSITE of what they say. I consider the jurisprudence to be open corruption. The anti-RKBA decisions "work" because the feds utter the big lie in harmony and have effectively unlimited power of force.
6.19.2009 6:47am
cboldt (mail):
-- The franchise is as import as the RKBA ... --
.
That's your opinion. I have the opposite one. An effective RKBA can be used to secure a voice at the tabel, but a voice at the table does not secure the RKBA. See United States of America.
6.19.2009 6:54am
interruptus:


The franchise is as import as the RKBA

That's your opinion. I have the opposite one. An effective RKBA can be used to secure a voice at the tabel, but a voice at the table does not secure the RKBA. See United States of America.

That's a reasonable political-philosophy position to hold, but as a matter of constitutional law, I don't see anything in the text of the Constitution that supports RKBA being a higher-priority right than voting (or any of the other explicitly protected rights, for that matter).
6.19.2009 7:12am
Brett Bellmore:
Why would the constitution prioritize them? If you're not supposed to do X, and not supposed to do Y, there's no need for priorities. The need for priorities only arrives once you've decided that you're sometimes going to do X or Y anyway, despite the Constitution saying you can't.
6.19.2009 7:29am
cboldt (mail):
-- I don't see anything in the text of the Constitution that supports RKBA being a higher-priority right than voting --
.
Likewise there is nothing that states any hierarchical order as between voting and the right to petition the government, the right to practice a religion, or any other right enumerated in the first eight amendments.
.
Adopting the government's point of view that all rights flow from the government, the Constitution doesn't confer a right to vote, let alone a natural or fundamental right to vote, and didn't think the right to vote was important enough to include it in the first eight amendments. The Constitution provides only that of those people who are granted the right to vote by the government, the government may not discriminate giving that grant on the basis of race, color, or previous condition of servitude (15th amendment); sex (19th amendment); condition the grant on paying a poll tax (24th amendment); or age greater than or equal to 18 (26th amendment).
6.19.2009 7:36am
PersonFromPorlock:
Of course, the basic error in everyone's thinking is to mistake the Constitution for the controlling document in federal law: In reality it's Catch 22, specifically: "They can do anything to you that you can't stop them from doing."
6.19.2009 9:21am
Fugle:

Although true, it was restricted specifically to violent misdemeanors, not all misdemeanors. I guess it doesn't seem that indefensible to me to prohibit ownership of guns to people who have been convicted of a violent crime of any sort.



It is “restricted” to “Domestic Violence Misdemeanors.” If I have a shouting match with my wife, and someone calls the cops, I could be subject to a State Disorderly Conduct charge. Because of the relationship – my wife being the victim – this is a “Domestic Violence Misdemeanor.” If convicted I am now subject to § 922(g)(9).

While shouting at one’s spouse (roommate, girl/boyfriend, baby momma) is not acceptable, this should not be a sufficient basis to remove a second amendment right. Especially as it is the relationship, rather than the act, which triggers § 922(g)(9). In the above example, if instead of my wife it were some person who cut me off in traffic, § 922(g)(9) would not apply.
6.19.2009 9:35am
rosetta's stones:

"...it is difficult to perceive any limitation on federal power, even in areas such as criminal law enforcement or education where States historically have been sovereign. Thus, if we were to accept the Government's arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate." Ibid.
529 U.S. 598, (2000)


"Hard pressed to posit any activity" that the congresscritters can't touch somehow?

If this doesn't trouble you, you're not breathing.

Heck, next thing you know, the 'critters will suddenly drop $10T of debt down on our heads, or somethin'.
6.19.2009 9:47am
David M. Nieporent (www):
Fletcher v. Peck is inapt -- I'm not talking about the sale of land
I understand that; nevertheless, it's evidence that your claim -- that a legislature can't bind a subsequent legislature -- is wrong as a general rule.

The ex post facto clause is another way in which a legislature can bind subsequent legislatures.
but regulation of the RKBA (which, as Scalia notes, is fundamental but not absolute and therefore must be amenable to some regulation). In this context, Simmons v. Galvin is more appropriate. The franchise is as import as the RKBA, and yet MA is allowed to regulate the franchise by disqualifying felons even when that penalty was not in place at the time of conviction.
The issue here has nothing to do with "fundamental but not absolute," an empty phrase that applies to anything. What right have the courts ever said is "absolute"? The claim that Massachusetts' ban (note: it's on prisoners, not felons) is not ex post facto is based on the notion that it's regulatory rather than punitive. While that claim might make sense for sex offender registration, I don't see how it can possibly apply to the RKBA.
6.19.2009 9:58am
mcbain:
Can all domestic disturbance calls be procecuted as domestic violence if the DA so chooses?
6.19.2009 9:59am
cboldt (mail):
-- Of course, the basic error in everyone's thinking is to mistake the Constitution for the controlling document in federal law --
.
Exactly right. The controlling document is whatever is most recently produced, and there is no force that requires the controlling documents to be logically coherent. See the Miller-Heller-Hamblen series.
.
The ultimate controlling force is physical violence; the government has the imperative to use it, and the people are forbidden from so much as seriously threatening it. Obtaining the means, even with no intention of using the means, is a federal felony.
6.19.2009 10:04am
cboldt (mail):
-- Can all domestic disturbance calls be procecuted as domestic violence if the DA so chooses? --
.
Yes, as far as I know. But one need not be a DA to move for a Restraining Order, and one can obtain a RO against anybody; in other words, RO's aren't limited to be against family members. Don't like the person who is running against you for city council? Move the Court for a RO. Pesky neighbor? Move the Court for a RO. The success rate won't be perfect, but it won't be -zero- either. Pick your targets carefully, you'll be going before the same court each time, and if you move for an RO against everybody, the Court may adjudicate you committed for paranoia.
6.19.2009 10:09am
Kirk:
Brett,
What do you have to do around here to get a law struck down as ex post facto? Title it "The Ex Post Facto Act of 2009"?
Sadly, given the way the various commerce-clause cases have gone, I'd say that would be insufficient. Maybe "The Blatantly Unconstitutional Ex Post Facto Act of 2009"? :-(
6.19.2009 10:26am
Brett Bellmore:

and yet MA is allowed to regulate the franchise by disqualifying felons even when that penalty was not in place at the time of conviction.


But, again, we're not talking about felonies here, we're talking about misdemeanors. You can talk all you want about not trivializing DV, but misdemeanors are, by definition, less serious than felonies. That they don't involve losing civil liberties was fairly central to the distinction between misdemeanor and felony, until Launteberg changed all that.
6.19.2009 10:54am
Don Kilmer (mail):
DV said:
For over 6 months as a PD I specialized in DV defense. Let me tell you, calling some of the crimes that people end up pleading to domestic violence as commonly understood is ridiculous. I've seen numerous cases charged and pled where both parties admit no more than a single push happened or someone grabbed and pulled on a person's arm as that person was walking away from them. Two hypothetical trials set for the next week or so involve a HC who lunged towards his GF putting her in "reasonable fear" and a HC who threw a dish at the sink where it broke (DV property crime). Should these people lose their gun rights for life if convicted?

I've seen people plead where they were in 20+ year relationships w/ their significant other w/o violence before one push or slap cost them their gun rights. DV misdemeanors are a joke 75% of the time in my experience.


My experiences are nearly identical. The Lautenberg scheme has more to do with gun control, than it has to do with crime control. My evidence,... the Feds refuses to honor state procedures for restoration of gun rights post conviction (getting ready to file a suit on this very issue), and Congress refuses to fund ATF programs for restoration of rights.

Misdemeanor Crime of Domestic Violence is a roach motel. You check in, but you never check out. If the violence is serious enough to strip someone of a constitutional right FOR LIFE, then it should have been charged as a felony.
6.19.2009 11:13am
Oren:

Should these people lose their gun rights for life if convicted?

Should they as a matter of policy? Probably not. Is it beyond Congress's power under the commerce clause? Probably. Is it a violation of the 2A? I think not, for the reasons I've explained.
6.19.2009 11:17am
Oren:

... is based on the notion that it's regulatory rather than punitive. While that claim might make sense for sex offender registration, I don't see how it can possibly apply to the RKBA.

The power to regulate who may own a firearm is not precisely what Scalia was referring to when he said the RKBA is not absolute. It doesn't seem any different, in practice, than the States regulating who many exercise the franchise.

The effect might be punitive, but the action still seems entirely regulatory to me.
6.19.2009 11:23am
cboldt (mail):
-- Should they as a matter of policy? Probably not. Is it beyond Congress's power under the commerce clause? Probably. Is it a violation of the 2A? I think not --
.
How or why do you even get to the 2nd amendment, after finding Congress lacks the power under the commerce clause?
.
Does the 2nd amendment give Congress a certain power to forcibly remove the RKBA from DV misdemeanants?
6.19.2009 11:25am
Oren:

I've seen people plead where they were in 20+ year relationships w/ their significant other w/o violence before one push or slap cost them their gun rights. DV misdemeanors are a joke 75% of the time in my experience.

So plead not guilty, have the spouse refuse to testify (marital privilege) and the whole thing washes out.

Maybe this is a problem with our DV system then with attempting to keep guns out of the subset of DV offenders that have committed serious offense (25%, as you suggest).
6.19.2009 11:25am
Oren:

How or why do you even get to the 2nd amendment, after finding Congress lacks the power under the commerce clause?

I am empowered to issue advisory opinions :-).

I suppose it could come up if a State passed a similar law (especially if the Fed one gets thrown out or repealed).


Does the 2nd amendment give Congress a certain power to forcibly remove the RKBA from DV misdemeanants?

No, the question is whether it prohibits the Congress (and, by incorporation, the States) from doing so in the exercise of their other powers.
6.19.2009 11:28am
Oren:



While shouting at one’s spouse (roommate, girl/boyfriend, baby momma) is not acceptable, this should not be a sufficient basis to remove a second amendment right.

Accepted. It's truly a sad state if our DV law cannot distinguish between a shouting match and the actual use of force.
6.19.2009 11:31am
cboldt (mail):
-- So plead not guilty, have the spouse refuse to testify (marital privilege) and the whole thing washes out. --
.
The discussion has been about the people who are convicted or plea bargain; not about the people who are found innocent after trial.
.
The same "fight the charge" rationale works for felonies too. Beat the rap, you aren't a felon.
.
You do have a good point, and the takeaway should be that ALL charges have the potential to carry felony-like penalties/regulations at an indeterminate future time, and without recourse. Similar to the perpetual license (says so on it's face - "NO EXPIRATION") being converted into a time-limited license, with failure to renew being a crime punishable with over a year in prison. Don't like it? Vote better legislators. Oh wait, you're a felon and can't vote. Oops!
6.19.2009 11:32am
Don Kilmer (mail):
Oren said:
So plead not guilty, have the spouse refuse to testify (marital privilege) and the whole thing washes out.


Its not that easy. In the abstract, what you say is correct. But when a criminal defense lawyer explains the downside risk to a middle-class client, with a mortgage to pay, children to raise and limited funds for trial (having not been poor enough to qualify for a public defender), the result is a plea.

Now, if that same defendant could have his fees and costs paid (out of the DA's budget) for a finding of factual innocense as part of the trial, more of these cases would go to trial or get dismissed outright.

Its all about leverage. This is one way in which our PD system screws the middle-class.
6.19.2009 11:36am
Oren:

The point (as I detail below) is that if it's a real right you have to treat it like one and that means it can't be denied to you just because the government decides you fit into some scary class (we all fit into SOME scary class).


Of course they can. We deny the RKBA to the mentally insane because we are scared that they will shoot up the place. We deny the franchise to felons. We deny the right to live with 1000 feet of schools to sex offenders. We deny the right to work at childcare facilities to child rapists. We deny the right to RKBA to those dishonorably discharged from the military. We deny the right to drive to DUI convicts. We deny the RKBA to legal immigrants.

The fact that there is an RKBA does not mean that it cannot be denied to anyone at anytime, it means only that the denial must be narrowly tailored to serve a compelling government interest. Same as restrictions on all the other fundamental rights in the BOR.
6.19.2009 11:38am
cboldt (mail):
-- No, the question is whether [the 2nd amendment] prohibits the Congress (and, by incorporation, the States) from [regulating RKBA away from misdemenants] in the exercise of their other powers. --
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What other powers? I don't see you referring to any federal power, except the commerce clause, in your comments.
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You do say that the 2nd amendment is no impediment against the regulations promulgated under commerce clause, so perhaps a neater way of expressing your point of view is that you don't see Congress empowered under the CC, but if it is (i.e., if you are wrong, and the CC really is as broad as the Supreme Court insists it is), then the 2nd amendment doesn't stand in the way.
6.19.2009 11:38am
Oren:


Its not that easy. In the abstract, what you say is correct. But when a criminal defense lawyer explains the downside risk to a middle-class client, with a mortgage to pay, children to raise and limited funds for trial (having not been poor enough to qualify for a public defender), the result is a plea.

Why would you hire a lawyer for a DV trial in which you are sure that the putative victim will actually go to bat for you on the stand? I'm not trying to be snarky, I'm trying to understand how the State could possibly prove its case in the face of the victim going on the stand and recanting.
6.19.2009 11:41am
Brett Bellmore:
So, Oren, you're saying it would be constitutional to enact something analogous to the Lautenberg amendment, only for the franchise? Maybe take the right to vote away from anybody who ever had a parking ticket?

I think this reasoning takes neither constitutional rights, nor the bar on ex post facto enactments, seriously. If we weren't talking about a right, that "it's regulatory, not punative" line might work. But the government isn't allowed to take away civil liberties for regulatory reasons. Restrict it a bit in the case of everybody, yes, but not just take it away from specific individuals.
6.19.2009 11:42am
Oren:
, so perhaps a neater way of expressing your point of view is that you don't see Congress empowered under the CC, but if it is (i.e., if you are wrong, and the CC really is as broad as the Supreme Court insists it is), then the 2nd amendment doesn't stand in the way.

Yes, that is my position.
6.19.2009 11:42am
Oren:

So, Oren, you're saying it would be constitutional to enact something analogous to the Lautenberg amendment, only for the franchise? Maybe take the right to vote away from anybody who ever had a parking ticket?

First of all, parking tickets are not misdemeanors (at least in my state) but civil citations. They are not required to be proven BARD, no right to counsel attaches, etc.. Therefore, they are of an even lower class of offense than a misdemeanor, which at least requires a real criminal trial.

Second, since the franchise is fundamental, the regulation must survive strict scrutiny. Can you tell me what the compelling government interest is here and why depriving the franchise from parking-ticket convicts the narrowest method for securing that interest?
6.19.2009 11:45am
cboldt (mail):
-- The fact that there is an RKBA does not mean that it cannot be denied to anyone at anytime, it means only that the denial must be narrowly tailored to serve a compelling government interest. Same as restrictions on all the other fundamental rights in the BOR. --
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ROTFL. "Same as restrictions on all the other fundamental rights in the BOR." I think your "can be denied to any one at any time" is closer to the truth, without further qualification. The reason and nature of infringement can be and is pretextual, in fact/practice.
6.19.2009 11:48am
Oren:

The discussion has been about the people who are convicted or plea bargain; not about the people who are found innocent after trial.

The smart plea bargainer insists on expungement some months after conviction ...
6.19.2009 11:50am
cboldt (mail):
-- I'm trying to understand how the State could possibly prove its case in the face of the victim going on the stand and recanting. --
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The state can testify in rebuttal to the victim.
6.19.2009 11:50am
SeaDrive:

The Lautenberg scheme has more to do with gun control, than it has to do with crime control.


Without a doubt.

Not all bubbles are financial; they come in all sorts of guises. In particular, if some neglected social problem suddenly gets the spotlight, the legislated responses can be over-reaching. This has happened with DV, with child abuse, with the treatment of sex offenders. Note: I'm not saying these are not serious problems, or that the law should not have been updated to reflect new information. I'm saying that in many cases the laws are not realistic or reflective of real life.

So, if you're a legislator with an agenda, what better way to make progress than hitch your wagon to the hot cause of the moment? (Note to self: rephrase without mixed metaphor!)
6.19.2009 11:51am
Oren:

fwiw, there were a fair # of cops who had pled guilty to misdemeanor dv charges based on plea agreements that they'd get to keep their jobs, etc. and these people successfully completed probation and then YEARS LATER, boom - they lose their career (and any chance of a law enforcement career) based on the fact that they were NOW prohibited from carrying a firearm

Damn straight. If you don't have the minimal respect for the integrity of other humans beings not to lay hands on them, you should not have a gun. Work the radio behind the desk.

I have no respect for police that think they should be held to a lower standard than the rest of us because their job is hard -- the job is hard therefore you should be 150% above-board.
6.19.2009 11:51am
cboldt (mail):
-- since the franchise is fundamental --
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It's less fundamental than the RKBA. The right to vote isn't mentioned in the founding document. There is no "The right of participation being necessary for self-government; the right of the people to vote shall not be infringed" amendment.
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There is a compelling state interest to regulating the vote, to those who have demonstrated an ability to conform with ALL duly-enacted laws, even the little ones. Break a law? Lose the vote. The rule promotes good order, general welfare, and prevents the stifling of commerce that occurs when good order is not maintained.
6.19.2009 11:58am
Brett Bellmore:
I guess the lesson here is, never plead guilty to ANYTHING, EVER. Today it might just cost you a fine, and paying it might be cheaper than taking time off from work to contest it.

But twenty years from now you might get stood in front of a firing squad.

The problem, of course, is that prior to Lautenberg, is that what a competent attorney would have told you, back in the 60's or 70's, if you'd asked him? Or was losing your civil liberties over a misdemeanor conviction simply off the table, not even a consideration?
6.19.2009 12:07pm
David M. Nieporent (www):
Why would you hire a lawyer for a DV trial in which you are sure that the putative victim will actually go to bat for you on the stand? I'm not trying to be snarky, I'm trying to understand how the State could possibly prove its case in the face of the victim going on the stand and recanting.
Have you not been following recent confrontation clause cases? It's not a surprise that virtually all of them relate to DV charges. The state puts the cop on the stand to say that the wife excitedly accused her husband of doing X. He probably also testifies that in his professional experience it's common for wives to recant later.
6.19.2009 12:09pm
David M. Nieporent (www):
And just to add to the above response, you'd hire a lawyer because you're not an idiot. I don't care if the evidence is a slam dunk 100% guaranteed acquittal, that it's so flawed that I could successfully move for a directed verdict of acquittal at the close of the prosecution's case: I'd still hire a lawyer. (And I am a lawyer.) In the criminal realm, there is nothing beyond a traffic ticket that I would handle on my own.
6.19.2009 12:12pm
pintler:

And because, as seems to have slipped some people's attention, where the penalties for conviction of a misdemeanor are fairly low, people sometimes plead guilty to an offense they never committed. Simply because the only thing it could legally cost them, at the time, was a bit of money, and they'd lose more of that by taking time off from work to contest the charge, and hiring a lawyer to contest it with.


Here's a real world example (not DV, but same idea) from the paper a couple of years ago: Mr. Smith was a PI in MD, and had had a CCW for many years. He sounded like an OK guy - recently named Citizen of the Year by the Baltimore PD in fact. The state changed its policy about CCW, though, from 'could not have CCW if sentenced to more than 1 year' to 'convicted of crime for which more than 1 year was a possible sentence'.

Mr. Smith's personal foray into crime went like this: he served in Vietnam. That was a funny war - you could be in a firefight this afternoon, then ride the evening log chopper back to base, get put on a plane for home, and be home in MD 36 hours or whatever later. Mr. Smith rode the bus home from the airport, and on the way passed the corner bar and decided to toast his survival. After some number of toasts, some other patrons noticed the uniform and decided to let the warmongering babykiller know just what they thought of him. An altercation ensued, which Mr. Smith won. The losers called the gendarmes, and Mr. Smith spent the night in the drunk tank. The next morning, the judge opined that Mr. Smith had two options - plead not guilty and see whether a unanimous jury would convict given those facts, or plead guilty, and further mentioned that if he chose to plead guilty, the judge had already decided to sentence him to time served - the few hours in the drunk tank. Mr. Smith pleaded guilty. Thirty years later, since he could have been sentenced to more than a year if convicted, he lost his CCW.

For another example, see US v. Bean - also not DV, but indicative of the need for exceptions to the general rule that crooks shouldn't have guns.

FWIW, in the present case, I don't think the guy can meet the burden of proof - he sounds like he has anger management problems.
6.19.2009 12:16pm
ArthurKirkland:
(1) Are more "trivial" domestic violence cases "trumped up" to misdemeanor level, or are more serious domestic violence cases plea-bargained down to misdemeanors?

(2) Regardless of the answer to (1), declaring that misdemeanor domestic violence is "trivial" strikes me as poor (and probably uninformed) judgment.

(3) I recognize that some people hold intense views concerning the right to bear arms. Perhaps that is why Justice Scalia penned "fundamental but not absolute" -- because he recognizes that some Americans have extreme views concerning entitlement to possess weapons.

(4) If a felony can retroactively operate to strip voting rights, it is difficult to believe that any crime involving violence is inadequate to restrict gun rights.

(5) In what circumstances might an effective right to keep and bear arms be used to secure "a voice at the table" in the context of today's United States of America? Do (or should) Americans commonly rely on firearms to arrange an agenda position at municipal meetings? Does walking up state capitol steps with an armed posse secure a seat at a committee hearing? Is a loaded machine gun the ticket to being heard in Congress? I suppose I could understand that thinking in a whacked-out white nationalist militiaman's mind, but outside that context it seems strange.
6.19.2009 12:22pm
Kevin P. (mail):

Oren:
We deny the RKBA to legal immigrants.

Not true. Permanent resident immigrants can own guns just like citizens (as far as federal law is concerned), and in fact, per Verdugo-Urquidez are very likely entitled to Second Amendment rights:


While this textual exegesis is by no means conclusive, it suggests that "the people" protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.
6.19.2009 12:35pm
Order of the Coif:
FUGLE posted:
While shouting at one’s spouse (roommate, girl/boyfriend, baby momma) is not acceptable,



Why not?

It sure isn't "violence." As First Amendment scholars say all the time, "No one is hurt by mere words."
6.19.2009 12:36pm
cboldt (mail):
-- (1) Are more "trivial" domestic violence cases "trumped up" to misdemeanor level, or are more serious domestic violence cases plea-bargained down to misdemeanors? --
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Both.
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-- (2) Regardless of the answer to (1), declaring that misdemeanor domestic violence is "trivial" strikes me as poor (and probably uninformed) judgment. --
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Why did you ask question No. 1 if it's answer is irrelevant? Your contention is that if a woman shoves her hubby or grabs his arm (or maybe just gets all red-faced and screams at him), it's non-trivial and worthy of a DV prosecution; and whatever consequences the legislature deems appropriate are, in fact, appropriate.
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-- Justice Scalia penned "fundamental but not absolute" --
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He did no such thing. The correct paraphrase is "individual but not absolute."
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-- (5) In what circumstances might an effective right to keep and bear arms be used to secure "a voice at the table" in the context of today's United States of America? --
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The question invites speculation as to scenario ("in what circumstances") then sets for a fixed scenario ("in the context of today's USA"). My comment was philosophical in nature, as noted above by another commenter. It assumes a "push come to shove" where the government and the people are adversaries. In that scenario, the government can deny you the vote, and that's that. But, even having the vote does not prevent the government from using physical violence against the people. See many countries that have voting, where the government is free to inflict physical violence and the people cannot remove the government.
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In today's USA, the RKBA is a farce; a figment of what it was at the founding. But, the people like being under the thumb of government, by golly, and they are going to get what they want.
6.19.2009 12:41pm
Oren:
Kevin, New York State does.

Section 265.01 Criminal possession of a weapon in the fourth degree

A person is uilty of criminal possession of a weapon in the fourth degree when:

[SNIP (1)-(4)

(5) He possesses any dangerous or deadly weapon and is not a citizen of the United States;
6.19.2009 12:50pm
cboldt (mail):
-- New York State does ... Section 265.01 Criminal possession of a weapon in the fourth degree --
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That's fascinating. Especially No.1.
A person is guilty of criminal possession of a weapon in the fourth degree when:
(1) He possesses any firearm, electronic dart gun, electronic stun gun, gravity knife, switchblade knife, pilum ballistic knife, metal knuckle knife, cane sword, billy, blackjack, bludgeon, metal knuckles, chuka stick, sand bag, sandclub, wrist-brace type slingshot or slungshot, shirken or "Kung Fu star"; or ...

I didn't see any "unless permitted" in Section 265-01, following the series of 1-5 prohibitions on possession. Perhaps there is another section that facilitates the lawful possession of a firearm in New York.
6.19.2009 1:00pm
Clayton E. Cramer (mail) (www):
The biggest problem here is that the courts refuse to ask why a domestic violence misdemeanor is a lifetime disqualifier of a constitutional right. Even felony convictions do not seem to have been disqualifiers until California adopted its 1923 law on this subject. There's certainly no contemporary evidence that the Framers regarded felony as a firearms disqualifier. (Many felonies were breathing disqualifiers, but that's not the same thing.)

I happen to think that violent crimes (both felony and misdemeanor) as firearms disqualifiers might be good public policy, perhaps for some period of years. (If your last violent felony conviction was 40 years ago, there's a good chance that you learned your lesson.) But that doesn't mean that it is constitutional.
6.19.2009 1:04pm
MarkField (mail):

It's less fundamental than the RKBA. The right to vote isn't mentioned in the founding document. There is no "The right of participation being necessary for self-government; the right of the people to vote shall not be infringed" amendment.


This is taking textualism to the point of absurdity. In the first place, the RKBA is NOT mentioned in "the founding document", it's only in the later-enacted BoR.

In the second place, the whole point of the Constitution was to create a republican form of government. A republic intrinsically requires voting. The Constitution didn't need to mention it any more than it needed to mention other obvious facts such as sovereignty of the people.
6.19.2009 1:07pm
FWB (mail):
And once more, the DV restrictions are just "reasonable" restrictions on a God-given Rights.

Sure they are! I think we should restrict firearms ownership for people who spit on the sidewalk, jaywalk, or otherwise show disdain for the law. These are just as "reasonable" as the DV laws. "Reasonable" is in the eye of the beholder.

Tiocfaidh ar la!
6.19.2009 1:07pm
cboldt (mail):
This makes (some) sense of the otherwise blanket prohibition on all firearms, to all people (including citizens) recited in 265.01.
Section 265.20 Exemptions
a. Sections 265.01 ... shall not apply to: ...
3. Possession of a pistol or revolver by a person to whom a license therefor has been issued as provided under section 400.00 or 400.01 of this chapter [impossible for a person not residing in NYS - adjudicated constitutional by the 2nd Circuit]
4. Possession of a rifle, shotgun or longbow for use while hunting, trapping or fishing, by a person, not a citizen of the United States, carrying a valid license issued pursuant to section 11-0713 of the environmental conservation law.
6.19.2009 1:10pm
Brett Bellmore:

The biggest problem here is that the courts refuse to ask why a domestic violence misdemeanor is a lifetime disqualifier of a constitutional right.


That's a question they could quite easily avoid asking, back when they were still maintaining that this right mentioned in the Constitution wasn't a constitutional right. Avoiding asking it today ought to be quite a bit harder, post Heller.

Problem is, at this point, it's the Supreme court that's got to ask it, and even if there is a majority on the Court in favor of admitting that this is a constitutional right, it's a majority which includes Scalia, who is militantly opposed to striking down long-standing laws, no matter how unconstitutional they might be.

Just getting them to readdress the question of whether it misdemeanors can reasonably be such a disqualifier is going to be an uphill battle. For felonies? They'll take that case when pigs fly.
6.19.2009 1:12pm
Clayton E. Cramer (mail) (www):

There is no "The right of participation being necessary for self-government; the right of the people to vote shall not be infringed" amendment.
Interestingly enough, the requirement to participate in the militia--and thus both an obligation to be armed and a sign that you were trusted to be armed--was much broader than the right to vote when the Constitution was adopted. Voting was usually 21 and up; militia obligation in most states started 18. In many states, there were property qualifications that limited the vote to perhaps 50% of the adult white male population; there were no property qualifications by the time of the Revolution to be a member of the militia.
6.19.2009 1:15pm
Clayton E. Cramer (mail) (www):

In the second place, the whole point of the Constitution was to create a republican form of government. A republic intrinsically requires voting. The Constitution didn't need to mention it any more than it needed to mention other obvious facts such as sovereignty of the people.
Except that the Constitution's language on this punts the question of qualifications to vote to the states.

Remember that many adult white males lacked the right to vote not just during the Revolution, but even well into the early Republic. Universal white manhood suffrage took a while to develop--and when it did, in places like New York, it was at the cost of disfranchising blacks who had voted because they met the property qualification.
6.19.2009 1:19pm
Clayton E. Cramer (mail) (www):

This is taking textualism to the point of absurdity. In the first place, the RKBA is NOT mentioned in "the founding document", it's only in the later-enacted BoR.
The right to have abortions, or engage in homosexual sex, or collect welfare without meeting a residency requirement, aren't mentioned anywhere--and yet the left manages to find all of those in the Constitution.
6.19.2009 1:21pm
cboldt (mail):
-- In the first place, the RKBA is NOT mentioned in "the founding document", it's only in the later-enacted BoR. --
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Right. And the "right to vote" isn't even mentioned there. A right that the founders saw fit to enumerate for special protection (peaceful assembly, petition the government for redress, keep and bear arms, security against unreasonable searches and seizures, speedy and public trial, right of trial by jury in civil cases, etc.) is MORE fundamental than a right that isn't even mentioned.
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It was only later that amendments were added that created the right to vote for certain people. Obviously, that right to vote is still not absolute. It is subject to reasonable restrictions.
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-- A republic intrinsically requires voting. The Constitution didn't need to mention it any more than it needed to mention other obvious facts such as sovereignty of the people. --
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The Republic is preserved, there will be voting. The only question is which people possess the right to vote. There is a compelling government interest that voters possess suitable qualifications to vote, and the government will freely confer the right to vote on those people (just as it does with the RKBA). "Sovereignty of the people" is a truism. When the qualified voters are able to participate by voting, the people are sovereign.
6.19.2009 1:26pm
EdB (mail):
It's actually refreshing to see a court injecting a note of common sense into the deliberation process. While it's certainly questionable whether this particular defendant would meet anyone's criteria for being a non-violent person, there are many others who would. The fundamental problem with the law as written, as well as with most similar state laws, is that it doesn't require any nexus between the offense of conviction and the penalty. A person, for instance, who was guilty of fraud, criminal trespass, embezzlement, possession of marijuana, making a false statement to a public official, etc., may be a very peaceable person who poses no threat of violence whatsoever and who still likes to hunt or participate in marksmanship competition. Where is the threat to public safety if that person is allowed to exercise his Second Amendment rights the same as the rest of us? Laws should not be arbitrary in nature, removing constitutional rights when there's no reason to except that "it's always been done that way" or because someone just wanted to enhance the punishment.

We also ought to have a means of reviewing the prohibition later in life, as people do change. The person who got in a bar fight at age 21 may well grow into a person who doesn't even raise his voice to anyone twenty years later, but the punishment still follows him regardless of how he's improved himself. How does it benefit anyone to let the State have a means of going after him decades later for the impulsive acts of a young man before he matured? During the 19th Century, a person could move west into the frontier, starting a new life for himself if he'd screwed up, getting a fresh start and doing it right this time. Thanks to the Internet and shared databases, that's no longer possible.

Our obsession with mandatory background checks, nailing people for acts in the past, denying them jobs and housing regardless of how they've changed and improved themselves, all of this is reminiscent of Inspector Javert in Les Miserables as he pursues Jean Valjean for decades, determined to see him in prison at all costs. Re-read the book, and ask yourself if we haven't become a nation of Inspector Javerts, determined to make sure that no one who enters the criminal justice system ever emerges intact or recovers to become a productive citizen.
6.19.2009 1:26pm
Clayton E. Cramer (mail) (www):

A person, for instance, who was guilty of fraud, criminal trespass, embezzlement, possession of marijuana, making a false statement to a public official, etc., may be a very peaceable person who poses no threat of violence whatsoever and who still likes to hunt or participate in marksmanship competition.
As Justice Thomas pointed out in a foreign felony conviction case, where the left end of the Court ruled that foreign felony convictions aren't disqualifiers, turning back an odometer on an automobile is a felony conviction, and is a lifetime firearms disqualifier--while the majority decided that a foreign conviction for murder or terrorism would not be a firearms disqualifier.
6.19.2009 1:31pm
Kevin P. (mail):
Oren, no one accuses New York of being at the vanguard of limited constitutional government :-) When the Second Amendment is incorporated against the states, New York's discriminatory behavior towards legal immigrants will have to end.
6.19.2009 1:35pm
cboldt (mail):
-- Where is the threat to public safety if that person is allowed to exercise his Second Amendment rights the same as the rest of us? Laws should not be arbitrary in nature ... --
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There is a simple trick to understanding "the law." That trick is to be aware that the stated rationale and "real" rationale for a rule of law oftimes diverge.
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The stated reasons for gun laws are in the nature of enhancing peace and public safety. The real reason is to minimize lawful public access to means of physical violence, as a precaution for the moment the people get uppity against the government.
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None of the restrictions on RKBA is arbitrary in nature, by EITHER measure.
6.19.2009 1:37pm
rmd:


Per the above comment about "flippant attitude towards domestic violence," I would support making it a felony

all domestic violence assaults?

i've been slapped 3 times in the past by girlfriends ( i deserved it twice). of course i did not call police, but if i did, you are ok with a girl being charged with a felony cause she slapped her boyfriend and ends up a convicted felon?

seriously?


Yeah, seriously. Because there are examples at the opposite end of the spectrum from yours where I believe misdemeanor penalties are insufficient and I would hope (there's the rub, isn't it?) that judges and juries would see the difference and decide appropriately. And it would make Lautenberg unnecessary. (The Amendment I mean, not the Senator, although....) Of course, bad laws don't go away just because they're unnecessary.
6.19.2009 1:38pm
MarkField (mail):

A right that the founders saw fit to enumerate for special protection (peaceful assembly, petition the government for redress, keep and bear arms, security against unreasonable searches and seizures, speedy and public trial, right of trial by jury in civil cases, etc.) is MORE fundamental than a right that isn't even mentioned.


Not when the unenumerated right is intrinsic to the whole form of government. A claim that the 3d Amendment is "more fundamental" than the foundational principles of republican government such as popular sovereignty, majority rule, and the right to vote is utterly ridiculous.
6.19.2009 1:38pm
cboldt (mail):
-- A claim that the 3d Amendment is "more fundamental" than the foundational principles of republican government such as popular sovereignty, majority rule, and the right to vote is utterly ridiculous. --
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Well, I didn't make the claim that you ascribe. The 3rd amendment doesn't express a right of the people. It expresses a limitation or condition on the government, as to when it can pass a law quartering troops in private dwellings.
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Granted, the right to vote is important, but it is not absolute. The government has a compelling interest in limiting the conferring of the right to vote, to people who will exercise it responsibly.
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Requiring voters to be qualified is an upholding of popular sovereignty and responsible majority rule.
6.19.2009 1:47pm
SeaDrive:

The biggest problem here is that the courts refuse to ask why a domestic violence misdemeanor is a lifetime disqualifier of a constitutional right.


Is it a problem that they refuse to legislate from the bench?

Often enough, conservative opinions that irk liberals are on the general line of "it's not the court's job to correct the mistakes of the legislature."
6.19.2009 2:02pm
Disintelligentsia (mail):
One of the most striking things about the federal ban on felons owning firearms is that they eliminate a right that is deemed fundamental by the SCOTUS, but it is dependent largely on the vagaries of the laws of each state. It sounds like an equal protection issue to me. If you live in California or New York, owning nunchakus is a felony, but in most states it is either not illegal or a minor offense at best. Also, in California you can be charged with a felony for virtually everything - most crimes are "wobblers" that can be charged as felonies or misdemeanors at the prosecutors discretion (guess which way that discretion usually goes?) Usually it goes something like this - prosecutor charges as a felony, knowing that facing the draconian state prison time the person will not take a chance on a jury and will plead to a misdemeanor.

How can the rights of FEDERAL citizenship be so varied when they depend on the vagaries and whims of local legislatures, courts and prosecutors? There is little consistent among the states as to what qualifies as a misdemeanor or a felony.
6.19.2009 2:06pm
troll_dc2 (mail):

We also ought to have a means of reviewing the prohibition later in life, as people do change. The person who got in a bar fight at age 21 may well grow into a person who doesn't even raise his voice to anyone twenty years later, but the punishment still follows him regardless of how he's improved himself. How does it benefit anyone to let the State have a means of going after him decades later for the impulsive acts of a young man before he matured? During the 19th Century, a person could move west into the frontier, starting a new life for himself if he'd screwed up, getting a fresh start and doing it right this time. Thanks to the Internet and shared databases, that's no longer possible.

Our obsession with mandatory background checks, nailing people for acts in the past, denying them jobs and housing regardless of how they've changed and improved themselves, all of this is reminiscent of Inspector Javert in Les Miserables as he pursues Jean Valjean for decades, determined to see him in prison at all costs. Re-read the book, and ask yourself if we haven't become a nation of Inspector Javerts, determined to make sure that no one who enters the criminal justice system ever emerges intact or recovers to become a productive citizen.



Why is this not a matter for the (state) legislature to address? I quite agree with the proposition stated here, but when did it become the judiciary's job to tell the legislature that it enacted a poorly designed and maybe unworkable law and that, therefore, the judiciary would not enforce it? I think that there should be periodic review of incarcerated persons' status to see whether continued imprisonment or other penalty is still warranted. But that is not something that should exist without legislative direction.
6.19.2009 2:09pm
cboldt (mail):
-- Often enough, conservative opinions that irk liberals are on the general line of "it's not the court's job to correct the mistakes of the legislature." --
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True. And sometimes it's opposite that, see opposition to McCain-Feingold; and on this thread, 922(g)(9).
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The US has a three part government (I used to say "four," counting the people, but they opted out a couple generations ago). Any one of the three, and any combination of two, and all three working in harmony, can (and do) operate in a way that contravenes the Constitution.
6.19.2009 2:11pm
whit:


Yeah, seriously. Because there are examples at the opposite end of the spectrum from yours where I believe misdemeanor penalties are insufficient and I would hope (there's the rub, isn't it?) that judges and juries would see the difference and decide appropriately.


the LAW can allow for that, w/o giving that much discretion to prosecutors and juries. for example, an assault that results in "substantial injury" vs. transient pain/red marks and/or an "unwanted touching". a slap causes transient pain/red mark *usually*. a shove is unwanted touching, but results in no injury.

i don't think anybody should be charged with a felony for slapping their boy/girlfriend.

but, to your credit, technically speaking, any assault on a police officer is a felony. realistically speaking (filing standards) the prosecutor's office will not even CONSIDER filing a felony assault for an assault on a police officer unless we are talking kicks and punches. pushes, slaps, etc. will get charged either as resisting or assault IV (misdemeanor).

i prefer to write the law correctly vs. writing it to encompass a whole variety of behavior of radically different degrees of "badness" and then giving the justice system free reign to "discretion" away. that's a recipe for abuse, capriciousness, and arbitrariness.



While shouting at one’s spouse (roommate, girl/boyfriend, baby momma) is not acceptable,




Why not?

It sure isn't "violence." As First Amendment scholars say all the time, "No one is hurt by mere words."



lots of stuff isn't acceptable, that isn't violence. telling your wife she looks fat is definitely NOT acceptable (and could quite likely lead to domestic violence... i suggest ducking) but is NOT a crime, or violence for that matter.
a lot of DV informational pamphlets, infected with PC blather, though, have "defined deviancy up". they tell the gullible that it's 'domestic violence' if your partner belittles you, makes you FEEL unsafe, etc.

that's all well and good but when we go to these "verbal DV's" we sometimes have to educate these people infected by PC blather that NO we are not going to arrest their hubby because he called her names and makes her FEEL unsafe.

somebody else pointed out, and i have frequently, that it's even worse. you don't even need a misdemeanor conviction to have your rights stripped. a simple protective order, with no benefit of a jury trial, a mere preponderance of the evidence standard , and that's it. yer done.
6.19.2009 2:13pm
troll_dc2 (mail):

One of the most striking things about the federal ban on felons owning firearms is that they eliminate a right that is deemed fundamental by the SCOTUS, but it is dependent largely on the vagaries of the laws of each state. It sounds like an equal protection issue to me. If you live in California or New York, owning nunchakus is a felony, but in most states it is either not illegal or a minor offense at best. Also, in California you can be charged with a felony for virtually everything - most crimes are "wobblers" that can be charged as felonies or misdemeanors at the prosecutors discretion (guess which way that discretion usually goes?) Usually it goes something like this - prosecutor charges as a felony, knowing that facing the draconian state prison time the person will not take a chance on a jury and will plead to a misdemeanor.

How can the rights of FEDERAL citizenship be so varied when they depend on the vagaries and whims of local legislatures, courts and prosecutors? There is little consistent among the states as to what qualifies as a misdemeanor or a felony.



It is a commonplace that federal law often applies differently from state to state because of its incorporation of state law; after all, we have a federal form of government, and federal law is enacted against a backdrop of state law. I thought that this is what conservatives are in favor of. Or is it that conservatives want laws defined uniformly when doing so means the adoption of certain policy goals while letting other laws be defined by reference to state law when doing so suits other policy goals? If so, what general principle can said to apply here?
6.19.2009 2:18pm
cboldt (mail):
-- One of the most striking things about the federal ban on felons owning firearms is that they eliminate a right that is deemed fundamental by the SCOTUS ... --
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At this point, the only thing SCOTUS admits is that the RKBA is individual, subject to reasonable restrictions.
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-- It sounds like an equal protection issue to me. --
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Interesting argument. States currently vary on line-drawing on many issues, some that eventually also involve a federal law; and these difference can't be used to strike down either the state or the federal laws.
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I think the answer is that everybody situated within one state is not denied equal protection or due process, as compared with all others in that state.
6.19.2009 2:20pm
Disintelligentsia (mail):
As another example of the capricious way that the law works, drawing from California as an example. . .

A woman steals some toiletries from Wal-mart and while leaving the store she gets grabbed by plain-clothes security. She jerks her arm away from them and yells at them to take their hands off her.

She's on the hook for felony burglary and robbery, the second one a strike because of the use of force (she pulled her arm away).

As most of us know, common law burglary was entry into a residence at night with the intent to commit a felony therein. But the definition in CA is so broad that it is the entry into any building with the intent to commit a felony or any kind of theft. Second degree burglary is a wobbler - can be charged as a misdemeanor or a felony. So, someone who steals less than $20.00 of stuff from walmart can be looking at three years in the state pen.

The above is a real example. The person who stole less than $20.00 got two-years 8 mos. for burglary and robbery because she "burglarized" wal-mart and resisted being apprehended by the plainclothes security by jerking her arm away. Now if she made a verbal threat to someone at that time she could be charged under PC 422 for a criminal threat and had two strikes and if she ever did anything again in her life she could be looking at 25-to-life.

The great disparity among the state criminal justice systems begs for a equal protection challenge to these federal laws that strip rights based on state criminal convictions.
6.19.2009 2:25pm
PersonFromPorlock:
whit:

i've been slapped 3 times in the past by girlfriends ( i deserved it twice). of course i did not call police, but if i did, you are ok with a girl being charged with a felony cause she slapped her boyfriend and ends up a convicted felon?


I can't resist arguing that when a woman of average strength slaps a man of average strength and weight, the physical damage - or even the possibility thereof - is so slight that the act more properly qualifies as expression, protected by the First Amendment, than assault.
6.19.2009 2:26pm
Disintelligentsia (mail):
cboldt -


Or is it that conservatives want laws defined uniformly when doing so means the adoption of certain policy goals while letting other laws be defined by reference to state law when doing so suits other policy goals? If so, what general principle can said to apply here?


What I want is for each to stay in their own backyard. We have a FEDERAL Republic and each should be constrained to their own domain - those things that are truly national in nature are committed to the feds, and those that are not are for the states to determine. There are damn few crimes that should be federal in nature (i.e. kidnapping across state lines, mail fraud, etc.). Naturally there is some blending that goes on because of the interstate (indeed international) nature of some things - the internet, shipping, roadways, mails, etc. But they are the exception rather than the rule as far as most criminal law goes.

The bastardization that happened to the commerce clause jurisprudence under Wickard was a direct result of Hoover's court packing threat and should be seen for what it is and not given respect as precedent.
6.19.2009 2:37pm
Fub:
DV wrote at 6.19.2009 1:30am:
For over 6 months as a PD I specialized in DV defense. Let me tell you, calling some of the crimes that people end up pleading to domestic violence as commonly understood is ridiculous. ...
I've seen people plead where they were in 20+ year relationships w/ their significant other w/o violence before one push or slap cost them their gun rights. DV misdemeanors are a joke 75% of the time in my experience.
whit wrote at 6.19.2009 2:32am:
it was ex-post facto as hell. fwiw, there were a fair # of cops who had pled guilty to misdemeanor dv charges based on plea agreements that they'd get to keep their jobs, etc. and these people successfully completed probation and then YEARS LATER, boom - they lose their career (and any chance of a law enforcement career) based on the fact that they were NOW prohibited from carrying a firearm
SeaDrive wrote at 6.19.2009 11:51am:
So, if you're a legislator with an agenda, what better way to make progress than hitch your wagon to the hot cause of the moment? (Note to self: rephrase without mixed metaphor!)
Nobody has described how this Frankenstein monster of law and leftist political agenda, driven by radical leftists masquerading as "battered women's advocates", works. The short form result is that DV has been trivialized so that no actual violence or threat of violence need occur if a male is present, and that DV has become nothing more than an internal government vehicle for a radical leftist agenda against both Second Amendment rights and against men generally. Their goal is not to reduce actual DV, but to "disarm the patriarchy", and when convenient or profitable, re-educate some plebes for propaganda purposes. It has succeeded by setting up perverse incentives for prosecutors, police, and vindictive intermeddlers.

The San Jose Metro newspaper covered this phenomenon in detail many years ago. Nothing much has changed since then except it's gotten worse.
BUTLER'S VIEW, while reflecting her own experience, also reflects a national, if under-reported, revolution in the treatment and ideology of domestic violence, a revolution which has gained a solid foothold in California and has emerged as sharply defined policy in Santa Clara County. Across the country, batterers' treatment programs are shifting to embrace a feminist-informed, gender-based analysis of battery--one in which men (or mostly men) batter because they are the beneficiaries of "male privilege" and because they sit on top of a patriarchal "power pyramid."

While almost completely abandoning traditional approaches to domestic violence, such as examining relationship and family dynamics and doing couples counseling and anger management, the male-patriarchy view of domestic violence focuses instead on "reeducating" men about their "privileged" position until they relent and admit that they are responsible for their own violence--and any violence in the relationship. This model pays little attention to women as batterers, and less to gay and lesbian domestic violence.

Although some experts say there are no studies showing batterers' intervention programs are effective at all, legislators have heeded the call of battered women's advocates and are enforcing this newly emerging model on a public which knows little, if anything, about it.
Nobody should be surprised that legislatures and Congress are willing to pass ex post facto laws in support of that agenda. Just follow the government grant money.

The federal and state grant money flows to local DA's DV units which adhere to the party line: men are evil "patriarchs" who must be sent to reeducation camps to increase contractors' financial bottom line. "Must arrest" laws encourage intermeddlers to phone in false DV reports and have any male in any household arrested and charged with DV, and every woman in the household threatened with contempt of court, perjury, or worse if she does not testify falsely against the man in the household. Cooperating police know exactly how to write reports to falsely put words into the mouths of uncooperative women "victims" to accomplish this. After all, if nothing happened, then why did somebody somewhere call the police?

As this corrupt approach to DV has become popular and profitable, actual DV, which also involves female and gay perpetrators, has become much less likely to be prosecuted because it doesn't fit the politically correct paradigm; it doesn't fill the highly profitable re-education camps; and it doesn't keep the grant money flowing for bogus prosecutions.

The tragedy is that government's infection by a radical leftist DV agenda has set back the cause of reducing actual DV by decades. The perpetrators prefer that, because having more DV news reports provides the propaganda to keep their anti-gun and generally anti-male juggernaut rolling. They deserve credit for a very clever strategy to gain near absolute and unchecked power, and an awesome funding machine.
6.19.2009 2:38pm
Disintelligentsia (mail):
Oops, in my last post, the entry I quoted was not by cboldt, but from troll_dc2. Sorry for the mix-up.
6.19.2009 3:03pm
Jon Roland (mail) (www):
Oren:

... somehow the Federal register didn't include that language when it published the USC.

The Federal Register doesn't publish the USC. That is done by the Office of the Law Revision Counsel, a project of the U.S. House of Representatives. You are perhaps thinking of the Code of Federal Regulations (CFR).

The USC, in the main, is not the law. The Statutes at Large are. The USC is a restatement of the law, and evidence of the law, but only evidence (and not comprehensive or necessarily accurate).

And of course, if unconstitutional, none of these things are law.
6.19.2009 3:06pm
Jon Roland (mail) (www):
By the way, we have the complete searchable Statutes at Large through 2008 online here.
6.19.2009 3:08pm
Clayton E. Cramer (mail) (www):

When the Second Amendment is incorporated against the states, New York's discriminatory behavior towards legal immigrants will have to end.
California's courts struck down the 1923 ban on non-citizens possessing handguns in People v. Rappard (Cal.App. 1974) based on 14th Amendment equal protection clause.
6.19.2009 3:13pm
Clayton E. Cramer (mail) (www):

Is it a problem that they refuse to legislate from the bench?

Often enough, conservative opinions that irk liberals are on the general line of "it's not the court's job to correct the mistakes of the legislature."
There's a difference between, "this law violates the Constitution" and "We think this is a stupid law, and we're going to hunt around until we can come up with a rationalization for why this law is unconstitutional."

Let's compare two cases:

1. A law prohibits individuals from keeping and bearing arms. Hmmm. There's a specific provision of the Constitution that guarantees a right to keep and bear arms.

2. A law prohibits homosexual sex. Where's the provision that protects homosexual sex? There isn't one. So they pull the 14th Amendment's due process and equal protection clauses out, and decide that the right is there. Except that homosexual sex was a felony everywhere in America in 1868, so it seems most implausible that the Congress that passed the 14th Amendment, and the states that ratified it, intended the 14th Amendment to strike down laws that prohibit homosexual sex.

Do you see the difference?
6.19.2009 3:18pm
Clayton E. Cramer (mail) (www):

It is a commonplace that federal law often applies differently from state to state because of its incorporation of state law; after all, we have a federal form of government, and federal law is enacted against a backdrop of state law. I thought that this is what conservatives are in favor of.
Where rights guaranteed by the 14th Amendment are involved, the states are obligated to obey a uniform standard. Where there is no right guaranteed involved, federalism leaves the decision to 50 different laboratories.

The difficulty is that all sorts of rights have been imagined, usually by the left, but sometimes by conservatives, hiding under the 14th Amendment. Compare Lochner and Nebraska v. Meyer with Roe v. Wade and Lawrence v. Texas. There's no question in my mind that the statutes struck down in a number of the strict constructionist decisions were really stupid, but that doesn't mean that they were unconstitutional. I would even agree that some of the laws struck down by the left, such as Palko v. Connecticut and Lawrence, were really stupid. But that doesn't make them unconstitutional.

When in doubt, trust the people.
6.19.2009 3:28pm
MarkField (mail):

Well, I didn't make the claim that you ascribe.


It sure looked to me like you did, but I'll accept that you aren't.


The 3rd amendment doesn't express a right of the people. It expresses a limitation or condition on the government, as to when it can pass a law quartering troops in private dwellings.


This isn't very persuasive. Most of the Amendments, including the 1st and 2d, can be read very easily as restrictions on the power of government. So, for that matter, can the habeas corpus provision.


Granted, the right to vote is important, but it is not absolute.


Agreed. But the same is true for ALL rights, including the RKBA.
6.19.2009 3:34pm
SeaDrive:

Do you see the difference?


Of course. But in the case at hand, it's agreed pretty much all around that there are some violent offenders who should lose the right to own firearms. It's reasonable for the court to be cautious about over-ruling the legislature about the details of implementation.
6.19.2009 3:38pm
Jon Roland (mail) (www):
The issues of this and related cases are discussed in the law review article Public Safety or Bills of Attainder?

The word "right" conflates at least two different concepts, which are disaggregated in the Constitution as privileges and immunities. Immunities are rights against the action of government officials that precede and are superior to the written Constitution of government. Privileges are rights that derive from government and may be withdrawn by it. Voting is a privilege, although there are immunities not to have the privilege denied on certain grounds.

The Fifth Amendment immunity of due process, properly incorporated to the states by the 14th Amendment, forbids the disablement of an immunity without due process, that is, due notice and a fair hearing on the question of whether it should explicitly be disabled. It is a violation of due process to disable one immunity on the basis of disablement of another immunity when only the second is pled, argued, and proved. The only constitutional way to disable the RKBA is to either legislate the disablement and deprivation of it as punishment for a crime, then explicitly state that disablement as part of the sentencing order, or to disable it for a person judged mentally incompetent in a way that makes him a danger to himself or others.

What 18 USC 922 attempts to do is to prohibit possession of a firearm on the basis of an administrative (not judicial) determination that the subject is "dangerous", using factors other than a conviction in federal court of a crime, or a finding of dangerous mental incompetence, including a judicial disablement of the RKBA at that point. This is a legislative disablement of an immunity for a class of persons, which makes it a forbidden bill of attainder, as well as (usually, as applied) an ex post facto statute.

In other words, the practice has been to treat the RKBA as a privilege and not as an immunity, which is inconsistent with the finding in Heller.

Leaving aside that the power to regulate (commerce) does not imply the power to prohibit (all modalities), the alleged authority for 18 USC 922, like Wickard, is not so much the Commerce Clause (CC) as the Necessary &Proper Clause (N&PC), which is being interpreted incorrectly not merely as what is necessary to make an effort, but as what is convenient to get a desired outcome. It is the N&PC that most needs to be reinterpreted back to its original meaning.

The use of such administrative determinations to establish a presumption of guilt if the facts are given, is a reversal of the burden and presumption of innocence unless either a crime independent of those facts, or incompetence, are first proved.

There is also a separation of powers issue in having a due process proceeding in the courts of one sovereign (state) determine the rights of parties in the courts of another (U.S.).
6.19.2009 3:39pm
Clayton E. Cramer (mail) (www):

Agreed. But the same is true for ALL rights, including the RKBA.
Agreed, none of these rights are absolute. But when the core purpose of a right is the first one attacked, it should make you nervous.

The core purpose of the Second Amendment was to leave open the possibility that an enraged population could rise up against a tyrannical government. (Other categories of arms ownership were also protected, but were not the core purpose.) So what sort of weapons are most clearly protected? Those with a military purpose--the ones that Obama and friends were talking about banning, until Nancy Pelosi (of all Congresscritters) told them to shut up.

The core purpose of the First Amendment's freedom of speech clause was to protect political speech. (This does not exclude speech for other purposes, but political speech was the core purpose.) Imagine if the news media were promoting restrictions on political speech--a core purpose. (Oh wait, they are, because they want to shut up conservatives.)
6.19.2009 3:49pm
Clayton E. Cramer (mail) (www):

Of course. But in the case at hand, it's agreed pretty much all around that there are some violent offenders who should lose the right to own firearms. It's reasonable for the court to be cautious about over-ruling the legislature about the details of implementation.
I actually agree that there are some violent offender who should suffer firearms disability. I'm having some trouble with the constitutionality of it, however.
6.19.2009 3:51pm
troll_dc2 (mail):

There is also a separation of powers issue in having a due process proceeding in the courts of one sovereign (state) determine the rights of parties in the courts of another (U.S.).



As I noted in a previous post, federal law often incorporates state-law definitions and rules; federal law tends to be interstitial in nature. This has always been so, to my knowledge. I am not sure that the alternative would be workable in a nation made up of states with their own legislatures and courts.
6.19.2009 3:52pm
Roger Schlafly (www):
(1) Are more "trivial" domestic violence cases "trumped up" to misdemeanor level, or are more serious domestic violence cases plea-bargained down to misdemeanors?
Both, but we only punish people for their actual convictions. We do not punish for a more serious charge that was dropped. Not in other areas of the law, anyway.
(4) If a felony can retroactively operate to strip voting rights, ...
It doesn't. Your votes before the felony conviction are still valid. Some states strip voting after a felony conviction.
6.19.2009 3:53pm
troll_dc2 (mail):

I actually agree that there are some violent offender who should suffer firearms disability. I'm having some trouble with the constitutionality of it, however.



Under your reading of the Constitution, would everyone enjoy the right to bear arms? If not, and if no violent offender should be excluded (which is what you are suggesting that you are having constitutional trouble with), whom would you include in the excluded category?
6.19.2009 3:56pm
cboldt (mail):
-- Most of the Amendments, including the 1st and 2d, can be read very easily as restrictions on the power of government. --
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I casually went through the Constitution and BOR looking for "right of the people" or similar. Agreed that most anything can be cast either as "right of the people" or "limitation of government," but I think the founders were very mindful of which way they phrased the original.
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And nowhere in there, in either form, did I find a right to vote or a limitation on the government as to its power to confer, withhold, or regulate the right to vote.
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Contrasted with the RKBA, which the constitution holds is a right of the people that shall not be infringed. There is no "Right of the people to vote shall not be infringed" amendment, and therefore no limitation on the federal government, other than whatever regulation it imposes on voting must be applied equally, without regard to race, etc. or sex.
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As a starting point, I'd say "If you aren't qualified to possess a firearm, then you aren't qualified to vote" standard. Both rights depend on a certain level of responsibility, restraint, and forethought.
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I also think a "welfare or vote, pick one or the other" law is a reasonable policy choice that does not discriminate in an unconstitutional fashion.
6.19.2009 4:00pm
Clayton E. Cramer (mail) (www):

Under your reading of the Constitution, would everyone enjoy the right to bear arms? If not, and if no violent offender should be excluded (which is what you are suggesting that you are having constitutional trouble with), whom would you include in the excluded category?
From looking at contemporary limitations on the right to keep and bear arms (at least with respect to the Second Amendment), it is very clear that the following categories of persons could be prohibited from bearing arms:

1. Those who were not willing to swear allegiance to the United States or their state of residence. (Perhaps could be used to justify prohibiting non-citizens from possessing firearms, although I don't think that's good public policy.) See the Oath Test acts a number of colonies adopted during the Revolution. This could be used, I suspect, to prohibit certain neo-Nazis and members of certain other revolutionary groups from being armed.

2. Slaves. (We're a bit short on those at the moment, because of other amendments.)

3. Those in jail or prison.

Now, I would love for someone to bring forth evidence that convicted violent criminals lost their right to bear arms upon completion of their sentences. It would be, I think, good public policy to disarm those convicted of violent crimes. I just can't find the evidence.

The situation with respect to incorporation of the RKBA through the 14th Amendment is a bit more complex, because it involves researching the state of the laws in 1868.
6.19.2009 4:17pm
Clayton E. Cramer (mail) (www):

As a starting point, I'd say "If you aren't qualified to possess a firearm, then you aren't qualified to vote" standard. Both rights depend on a certain level of responsibility, restraint, and forethought.
And there are court decisions, such as Cooper and Worsham v. City of Savannah (Ga. 1848) that use exactly that construction to compare being armed and voting:

Free persons of color have never been recognized as citizens; they are not entitled to bear arms, vote for members of the legislature, or to hold any civil office.
Significantly, colonies that disarmed free blacks usually disfranchised the same year, or within a year or two.
6.19.2009 4:22pm
cboldt (mail):
-- I would love for someone to bring forth evidence that convicted violent criminals lost their right to bear arms upon completion of their sentences. --
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Evidence either way. I've heard, completely anecdotally, that at one time, guns were returned to felons at the moment their incarceration was terminated. I don't have any significant awareness of the evolution and timing of the "no guns for felons who have completed their sentence" paradigm.
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I think it's this thread that points out the Federal government's provision of a BATF facility to restore gun rights, then failing to fund its operation. I know my cynicism is strong, but Congress has me beat, hands down, with that move.
6.19.2009 4:34pm
troll_dc2 (mail):

Now, I would love for someone to bring forth evidence that convicted violent criminals lost their right to bear arms upon completion of their sentences. It would be, I think, good public policy to disarm those convicted of violent crimes. I just can't find the evidence.


You are much more of an authority on early American history than I am. I find it interesting that you have no evidence either way about post-released convicted violent criminals.


The situation with respect to incorporation of the RKBA through the 14th Amendment is a bit more complex, because it involves researching the state of the laws in 1868.



Somewhere I have a book stating that the Supreme Court got the privileges and immunities clause of the Fourteenth Amendment all wrong and that this provision, not the due process clause, should have been the vehicle for determining which of the amendments should apply to the states.

I also have seen a suggestion that because most, if not all, of the states had their own RKBA constitutional provisions, the application of the Second Amendment to the states could not have been within the contemplation of the framers of the Fourteenth Amendment. But I recall reading language by some of the framers of the amendment suggesting that it was vital to let the newly freed blacks bear arms.

I trust that my comments will provoke a response.
6.19.2009 4:39pm
MarkField (mail):

Contrasted with the RKBA, which the constitution holds is a right of the people that shall not be infringed. There is no "Right of the people to vote shall not be infringed" amendment, and therefore no limitation on the federal government, other than whatever regulation it imposes on voting must be applied equally, without regard to race, etc. or sex.


A nitpick first: you missed the voting provision in Art. I, Sec. 2, cl. 1. The federal government can't change that.

More substantively, you're simply ignoring the fact that the right to vote is intrinsic to republican government. Without that right, it's impossible to say that we even have republican government.

The fundamental flaw in your position is the assumption that rights have to be enumerated to be protected. Aside from the obvious violation of the 9th Amendment this entails, it leaves out the fact that some things were so obvious they didn't need to be stated. For example, nothing in the Constitution says that that the people are sovereign, but Congress can't simply declare itself sovereign like the British Parliament. In fact, it's the sovereignty of the people which makes the Constitution superior to laws passed by Congress, and therefore allows restrictions on the RKBA to be struck down.


I also think a "welfare or vote, pick one or the other" law is a reasonable policy choice that does not discriminate in an unconstitutional fashion.


That's nice, but I doubt you'd get any court to agree.
6.19.2009 4:41pm
pintler:

We also ought to have a means of reviewing the prohibition later in life, as people do change. The person who got in a bar fight at age 21 may well grow into a person who doesn't even raise his voice to anyone twenty years later, but the punishment still follows him regardless of how he's improved himself.


As we wrestle with defining reasonable in the post Heller world, we'll have to decide things like whether felonies such as tax evasion or picking up bird feathers in your yard are more predictive of firearms misuse than, say, a non felony history of road rage, DWI, shooting traffic signs, or whatever.



Now, I would love for someone to bring forth evidence that convicted violent criminals lost their right to bear arms upon completion of their sentences.


I think what has changed there is that we hang fewer violent criminals. My impression (and I welcome correction) is that in colonial times, imprisonment was a short term thing - 90 days for theft or whatever. Serious or repeat offenders were executed because, inter alia, the cost of keeping able bodied people incarcerated for years was relatively higher that it is now.
6.19.2009 4:41pm
Clayton E. Cramer (mail) (www):

You are much more of an authority on early American history than I am. I find it interesting that you have no evidence either way about post-released convicted violent criminals.
Actually, there is some evidence. In the 1780s and 1790s, Pennslyvania's practice became that when it released convicted felons upon completion of their sentences*, they received a full pardon.

* Remember that Pennsylvania was doing something quite revolutionary: penitentiaries, instead of whipping or execution. A penitentiary was a place where you were locked in your cell with a Bible, and given a chance to think on the error of your ways: to become "penitent"--hence the word.
6.19.2009 4:45pm
Clayton E. Cramer (mail) (www):

Somewhere I have a book stating that the Supreme Court got the privileges and immunities clause of the Fourteenth Amendment all wrong and that this provision, not the due process clause, should have been the vehicle for determining which of the amendments should apply to the states.
I think that this is true, but I recognize that the evidence on this is subject to all the usual problems of determining original public meaning.


I also have seen a suggestion that because most, if not all, of the states had their own RKBA constitutional provisions, the application of the Second Amendment to the states could not have been within the contemplation of the framers of the Fourteenth Amendment.
That would be wrong, because some of the Southern states had RKBA provisions that limited the right to white men, such as Tennessee's 1834 revision from "freemen" to "free white men," and other Southern states, such as Georgia and North Carolina, had decided that even though the text guaranteed a right of free blacks to be armed, the framers of the state constitution could not possibly have meant that.

But I recall reading language by some of the framers of the amendment suggesting that it was vital to let the newly freed blacks bear arms.
Stephen Halbrook has a book that provides a lot of very persuasive evidence on this.
6.19.2009 4:48pm
troll_dc2 (mail):

More substantively, you're simply ignoring the fact that the right to vote is intrinsic to republican government. Without that right, it's impossible to say that we even have republican government.




Did we have republican government in 1800? Who voted for the electors that year?
6.19.2009 4:51pm
Clayton E. Cramer (mail) (www):

I think what has changed there is that we hang fewer violent criminals. My impression (and I welcome correction) is that in colonial times, imprisonment was a short term thing - 90 days for theft or whatever. Serious or repeat offenders were executed because, inter alia, the cost of keeping able bodied people incarcerated for years was relatively higher that it is now.
I'm impressed, when going through Pennsylvania's colonial newspapers, how many people are being hung for burglary. Yes, not robbery, but burglary. And yes, rape, murder, and buggery are all capital crimes in Pennsylvania, and they are still hanging for all those offenses into the 1780s. (Pennsylvania was one of the more progressive colonies by then.)
6.19.2009 5:02pm
Fedya (www):
2. A law prohibits homosexual sex. Where's the provision that protects homosexual sex?

The 9th Amendment.
6.19.2009 5:08pm
cboldt (mail):
-- you missed the voting provision in Art. I, Sec. 2, cl. 1. The federal government can't change that. --
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Good catch.
The House of Representatives shall be composed of Members chosen every second Year by the People of the several States

-- More substantively, you're simply ignoring the fact that the right to vote is intrinsic to republican government. Without that right, it's impossible to say that we even have republican government. --
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It's false to say that I am ignoring it. See above where I agree that voting WILL be conducted. One has to agree that the right to vote is not absolute, because we currently deprive entire groups of people of the right to vote. In short, I am not advocating banning the vote, merely that the constitution give the power to regulate the vote, and the power to confer voting privileges, to the government. There is no "natural" right to vote.
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-- The fundamental flaw in your position is the assumption that rights have to be enumerated to be protected. --
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I do not hold that the voting privilege is totally absent protection or can be banned, any more than the RKBA is absent protection. Even though the RKBA can be banned, according to some Circuit Courts, both activities (RKBA and voting) are protected by the government. Now on its face, that's illogical, but the Courts say it's so, which makes it so. As for where the rights come from, the United States Supreme Court says the RKBA is conferred by the 2nd amendment. I think SCOTUS is full of crap (in Heller), but they have bigger guns and more numerous and powerful minions than I do.
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-- For example, nothing in the Constitution says that that the people are sovereign, but Congress can't simply declare itself sovereign like the British Parliament. In fact, it's the sovereignty of the people which makes the Constitution superior to laws passed by Congress, and therefore allows restrictions on the RKBA to be struck down. --
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I mentioned the sovereignty of the people above. "It's a truism," said I. The superiority of the Constitution over legislation is a conflict of laws questions, resolved (correctly so) by SCOTUS in Marbury v. Madison. The resolution of that conflict of law doesn't enhance or inhibit the power of the government to regulate the privilege of voting.
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If the government can't trust a citizen with a gun, I just don't see how it can trust that same citizen with a vote. Yet the RKBA and right to vote are treated very differently, with the government being niggardly in its conferring of RKBA. I'm being polite. In fact, I think the federal government is literally corrupt as to the RKBA.
6.19.2009 5:09pm
Clayton E. Cramer (mail) (www):

As we wrestle with defining reasonable in the post Heller world, we'll have to decide things like whether felonies such as tax evasion or picking up bird feathers in your yard are more predictive of firearms misuse than, say, a non felony history of road rage, DWI, shooting traffic signs, or whatever.
Unfortunately, no honest judicial interpretive method can separate these. Congress and the states should correct their felon in possession statutes to draw a distinction between violent felonies, non-violent felonies that are really hopelessly antisocial, and non-violent felonies that are felonies because some legislator wanted to send a message.

Of course, there's still the problem of a lack of original intent support for lifelong firearms disability for post-release felons. Perhaps the solution is to make the crimes that are really, really serious into life sentences, provide for probation, and then make firearms disability into a probation condition. But could you then turn John pushing Jane (or vice versa) into a life sentence, without running into cruel and unusual punishment problems?
6.19.2009 5:11pm
Clayton E. Cramer (mail) (www):


2. A law prohibits homosexual sex. Where's the provision that protects homosexual sex?




The 9th Amendment.
If there were no laws on the subject in 1789, you would have a good point. But it is quite clear that when Congress passed the Bill of Rights, and the states ratified them, they had no intention of striking down any existing state or federal laws. These were an attempt to guarantee the status quo of existing federal/state relations. Every state felonized homosexual sex at the time; a number still had it as a capital offense. Maryland, for example, did not reduce the penalty for buggery from death to ten years in prison until the 1809 criminal code revision. Pennsylvania reduced it from death to a prison sentence somewhat earlier, but was still hanging for buggery in the 1780s.
6.19.2009 5:15pm
cboldt (mail):
-- I also have seen a suggestion that because most, if not all, of the states had their own RKBA constitutional provisions, the application of the Second Amendment to the states could not have been within the contemplation of the framers of the Fourteenth Amendment. --
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I subscribe to the point of view that RKBA exists in three forms, which unfortunately share the same name. There is the inherent RKBA, which attaches to a free man by nature. There is the extent of protection to this natural RKBA that a state government/society will provide and enforce. This is sort of a "community" standard, that effectively reigns in the individual, or gives the individual freedom, commensurate with the notion that the individual and the community are cooperating - they share the same ends, one of which is the preservation of individual freedom against the community.
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The third is similar, but is the promise of the federal government to not interfere with the RKBA. Some promise.
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The United States Supreme Court used to have a similar view of RKBA, in that it does not depend on the 2nd amendment for vitality.
It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the [second amendment] out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. But, as already stated, we think it clear that the [law requiring a parade permit does] not have this effect.
United States Supreme Court - 1886
6.19.2009 5:26pm
troll_dc2 (mail):

2. A law prohibits homosexual sex. Where's the provision that protects homosexual sex?

The 9th Amendment.



No. Lawrence, which I like on policy grounds, grounded its decision on a Fourteenth Amendment concept of liberty to engage in private sexual conduct that has the same smell of overreachingness as did the eventually discredited concept of liberty of contract. In both situations, the Court took the word "liberty" and infused it with its own sense of conduct that should be protected from government restriction "just because." In other words, they made it up.

Frankly, I am not sure how I could justify the decision on constitutional grounds.
6.19.2009 5:34pm
Clayton E. Cramer (mail) (www):

Lawrence, which I like on policy grounds, grounded its decision on a Fourteenth Amendment concept of liberty to engage in private sexual conduct that has the same smell of overreachingness as did the eventually discredited concept of liberty of contract.
And to justify it, they not only reached to foreign precedents (even though this wasn't even a close question as to the American historical precedent), but engaged in some serious misrepresentation of history to do so. See my discussion of colonial sodomy laws.

I agree with Justice Thomas's paraphrase of the dissent in Palko: an uncommonly silly law. But silly doesn't mean unconstitutional.
6.19.2009 5:56pm
troll_dc2 (mail):
As I recalled, the Court was citing foreign law in rejecting the premise of Chief Justice Burger's concurring opinion. But I have just looked at the decision and see that there was also substantial reliance on decisions of the European Court of Human Rights, as well as on a brief filed by European amici. This is sick. And I am gay.

My position is that a good judge is one who is willing to rule against positions that he favors. I am not sure how good a judge I would be on that issue.

Anyway, back to the topic of this thread. I do not like the Heller decision (yeh, I am for gun control), but given its existence (and the fact that I think that Scalia acknowledged that "reasonable" restrictions could be imposed only to get the fifth vote), I think that the latest decision in U.S. v. Engstrom is clearly correct. I am and have always been skeptical of the use of the incorporation doctrine to apply the Bill of Rights to the states, but I see no basis in light of all of the other incorporation decisions not to do so with the Second Amendment as well.

I am not a very good ideologue. Sorry.
6.19.2009 6:19pm
Clayton E. Cramer (mail) (www):

I am and have always been skeptical of the use of the incorporation doctrine to apply the Bill of Rights to the states, but I see no basis in light of all of the other incorporation decisions not to do so with the Second Amendment as well.
Are you skeptical of incorporation of any sort? Or just of selective incorporation? Or skeptical of finding it through the due process clause?

There is a strong argument for incorporation through the privileges and immunities clause, but having rejected that approach in the 1870s, finding it through the due process clause--and the very ad hoc manner in which they found it sometimes but not others--is not a defensible position.
6.19.2009 6:40pm
troll_dc2 (mail):
I am skeptical of finding incorporation through the due process clause. I agree with you that there is a strong argument regarding the privileges and immunities clause, which I recall that the book that I have somewhere said got misconstrued by judges who deliberately relied on the assertions of the opponents, not supporters, of the Fourteenth Amendment. (It is interesting to realize, assuming that my source is correct, that the most controversy over the amendment concerned the provision that would reduce the congressional representation of states that denied voting rights to the newly freed slaves.)
6.19.2009 6:46pm
troll_dc2 (mail):
I am skeptical of finding incorporation through the due process clause. I agree with you that there is a strong argument regarding the privileges and immunities clause, which I recall that the book that I have somewhere said got misconstrued by judges who deliberately relied on the assertions of the opponents, not supporters, of the Fourteenth Amendment. (It is interesting to realize, assuming that my source is correct, that the most controversy over the amendment concerned the provision that would reduce the congressional representation of states that denied voting rights to the newly freed slaves.)
6.19.2009 6:46pm
troll_dc2 (mail):
Sorry about the double post.

Anyway, I will try to find the book and cite it here before the comment period ends.
6.19.2009 6:48pm
Clayton E. Cramer (mail) (www):

I agree with you that there is a strong argument regarding the privileges and immunities clause, which I recall that the book that I have somewhere said got misconstrued by judges who deliberately relied on the assertions of the opponents, not supporters, of the Fourteenth Amendment.
To be fair, the use of the 14th Amendment in the Slaughter-house Cases really wasn't what it was intended for--to overturn a corrupted state legislature's actions. But Cruikshank, another of the cases that eviscerated the 14th Amendment's applicability to the states, was exactly the type of case intended: where Klansmen disarmed and murdered freedmen. But by then, compassion fatigue was setting in, and there was a feeling in many circles that the U.S. government couldn't be solving the problems of the freedmen forever.
6.19.2009 6:58pm
troll_dc2 (mail):
Using privileges and immunities instead of due process would have (I think) limited the discretion of the judiciary to pick and choose what federal restrictions would apply to the states. (I have always distrusted the judiciary. They engage in intellectual dishonesty as a matter of policy.)


But by then, compassion fatigue was setting in, and there was a feeling in many circles that the U.S. government couldn't be solving the problems of the freedmen forever.



Two points. First, if you have a provision, you apply it. You are not supposed to have discretion on the matter. (I am not being sufficiently supple, I know.) Second, the South may have lost the Civil War at the time, but it came to conquer the federal government afterward, and the Supreme Court was one of the institutions that it captured.
6.19.2009 7:11pm
Jon Roland (mail) (www):
Let's review the problem of applying the 14th to the states.

At the federal level, rights (immunities) and delegated powers are complementary: they partition the space of public action. Immunities are what are left over after substracting delegated powers. If there is no delegated power to restrict something, there is a right to do that something. That is why expressing items in the Bill of Rights, sometimes by declaring a right (a restriction on delegated powers) and sometimes explicitly as a restriction on delegated powers (a restriction on immuniuties), is logically equivalent.

Now the state constitutions delegate powers to state (and local) officials that the U.S. Constitution doesn't. If we applied the rule above, state rights would be whatever is left over after delegating powers to state officials.

The main problem comes with those pesky, broad, vague "police powers" that states delegate in their constitutions. Powers to generally legislate for the public health, safety, order, and morals. What does that mean? Historically, only a few things, but state legislators, like members of Congress, don't feel they have done their jobs unless they pile a bunch of laws on their people to satisfy the demands of every constituent.

The Framers of the 14th clearly stated that the 14th was intended to extend the jurisdiction of U.S. courts to include violations of the rights of U.S. citizens (made identical to resident persons) by state agents.

If we were to apply the rule of complemetarity of para. 2 strictly, that would mean state governments couldn't do anything not authorized in the U.S. Constitution. Obviously, that wasn't the intent. But it is also clear that state legislators could justify the violation of any of the federal immunities as pursuant to public safety, health, order, and morals. Logically, they could just legislate that their entire citizenry be killed. All dead citizens would certainly be safe, healthy, orderly, and moral, right?

Obviously not. The courts (and Congress) have to draw a line somewhere. One way to do that is with the "rational basis" test (more talked about than used). In other words, a federal judge is asked to decide whether a state exercise of power does actually operate to improve public safety, health, order, and morals, or whether it is just a cockeyed theory or the expression of disapproval of behavior that doesn't actually harm anyone who is not a consenting adult.

This gets to my oft made point that delegations of powers are not "plenary within their sphere". All delegations are only of powers to make efforts that are reasonable and for a legitimate public purpose. That usually means in only one direction along a scale of utility. Exercising powers otherwise is an abuse of discretion, and just as unconstitutional as exercising a power entirely undelegated.

So the rational basis test applies to congressional legislation and the actions of U.S. officials as well. Despite the impulse to defer to the political branches, presume their actions are constitutional, and avoid doing what they are supposed to do, when a constitutional question comes before a court their duty is to presume unconstitutionality and demand strict proof of authority.
6.19.2009 7:13pm
MarkField (mail):

Did we have republican government in 1800? Who voted for the electors that year?


According to Benjamin Franklin ("A republic, if you can keep it"), we've had one every year since 1789. You can, of course, argue about just how republican the government was when a pretty small percentage of the population got to vote, but we usually call it that just as we call ancient Athens a "democracy" even though only about 1/12 of the residents there could vote.
6.19.2009 7:20pm
troll_dc2 (mail):

So the rational basis test applies to congressional legislation and the actions of U.S. officials as well. Despite the impulse to defer to the political branches, presume their actions are constitutional, and avoid doing what they are supposed to do, when a constitutional question comes before a court their duty is to presume unconstitutionality and demand strict proof of authority.



And your concept is directly contrary to the rule followed (at least in theory) by the courts. Why are you right and they wrong? (I will reserve all of the other issues in your post for later. I'm about to go home.)
6.19.2009 7:23pm
MarkField (mail):

There is no "natural" right to vote.


Agreed, at least in the sense that there is no government at all in a state of nature.

BTW, I forgot earlier that the 16th A gives the people the right to vote for Senators.
6.19.2009 7:23pm
troll_dc2 (mail):
How many states conducted a popular vote in 1800?
6.19.2009 7:34pm
MarkField (mail):

How many states conducted a popular vote in 1800?


I assume you mean for president.* The answer is that 6 states conducted a popular vote for the Electors, the rest (9) chose by the respective state legislatures. See here.

*For the record, I don't think the method of choosing a single office, no matter how important, is decisive in calling a system republican or not. Madison and Hamilton argued in the Federalist that the presidential election system was republican because the people chose the legislators who chose the electors.
6.19.2009 7:49pm
cboldt (mail):
-- I forgot earlier that the 16th A gives the people the right to vote for Senators. --
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There are a handful of "right of certain people to vote" provisions in later amendments. 15th (race, color, previous condition of servitude), 17th is popular election for Senators (an odious amendment, IMO, but there it is), 19th (sex), 24th (poll tax) and 26th (18 year olds). Each of those makes clear that the original proposition for voting did not apply to all citizens; and in some cases was conditioned on financial means.
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I noted those (except direct election of Senators - which is an application of voting, not the presence/absence/condition of the right to vote) in an earlier post, likewise comparing the RKBA and the right/privilege to vote, and focusing on the founding document + BOR.
6.19.2009 8:00pm
Jon Roland (mail) (www):
troll_dc2:

And your concept is directly contrary to the rule followed (at least in theory) by the courts. Why are you right and they wrong?

The doctrine of the presumption of constitutionalty is not a construction of the Constitution, which logically requires just the opposite. The doctrine, and decisions pursuant to it, are prudential, for the convenience of the Court. The Court is saying it doesn't want to take the heat it would catch if it decided the cases in accordance with the Constitution, so it avoids doing so and puts the burden on the voters to elect different officials if they want relief. That might be all very well for the constitutional order generally, but it doesn't do much good for the parties to the case before the Court. That is sacrificing the few for the comfort of the (also few) judges.
6.19.2009 8:02pm
TruePath (mail) (www):
While I think the right to vote is an appropriate analog for the RKBA I suspect most here wouldn't. After all voting isn't a true individual right but a right of the people at large. I don't doubt that under our current system judicial rulings have protected individuals ability to cast ballots from government interference, however, on consideration it's clear that it's not even coherent to imagine a truly individual right to vote.

I mean suppose pure random chance results in insufficient volunteers being present in your polling place denying you the chance to vote (without serious hardship). While unfortunate we wouldn't view this as a constitutional violation the way we would if say the government deliberately arranged for insufficient volunteers to be present in republican areas. Yet, your individually treatment, even the counting of your vote, remains the same in both cases.

The upshot of this is that voting can't be an individual right because it's the reflection of certain statistical properties of the people as a whole that is protected not any individual influence. I mean so long as the results had very small error bars I see no reason why letting a random sample of the populace determine senators wouldn't qualify as selection by the people.

------

I actually interpret the 2nd ammendment in a very similar fashion. It is an individual right in the sense that it prevents the government from barring most individuals from possessing guns just as the various voting requirements practically require that most individuals not be excluded from the voting process. However, in both cases the real right is that of the people as a whole. Namely, to be capable of violently resisting tyranny and have a government that reflects the will of the people respectively.

Of course this leaves me in the weird position of believing the government can do a lot of pedestrian regulation of guns but must allow most citizens to buy high powered assault rifles and maybe grenades.
6.19.2009 10:28pm
cboldt (mail):
-- high powered assault rifles --
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That's an oxymoron.
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As for the rest of your thoughtful post, the one concept that I would add is the individual ability to self-defense that accompanies keeping and bearing arms. The consequences of an individual not being able to vote is using nil - the outcome is the same because one vote does not make a difference. But the life of that same person might hinge on that person being armed. I would more readily strip a person of the right to vote, than I would strip of the right to obtain means of equalizing a confrontation involving physical violence.
6.19.2009 11:36pm
zippypinhead:
Climbing back up to 30,000 feet to enjoy the view presented by this prosecution, I find the most significant part to be the description of the appropriate standard of review, found at §III.B of the Court's April 17 Memorandum and Order, that Professor Volokh linked to:
Although not expressly stated by the Heller Court, strict scrutiny appears the appropriate level of scrutiny for two reasons. First, the Heller Court described the right to keep and bear arms as a fundamental right that the Second Amendment was intended to protect. The Tenth Circuit has declared that, where fundamental rights are at stake, strict scrutiny is to be applied. Second, the Heller Court categorized Second Amendment rights with other fundamental rights which are analyzed under strict scrutiny. The Court will, therefore, apply strict scrutiny analysis to the application of §922(g)(9) to Defendant, and require that the government show that § 922(g)(9) is narrowly tailored to serve a compelling government interest, as applied to the facts of this case.
April 17, 2009 Mem. Op. at 6 (citations omitted). Did you catch that? A Federal District Court just found strict scrutiny to be the appropriate standard of review of limitations on Second Amendment rights. That's a first, to my knowledge.

The holding that §922(g)(9) survives a strict scrutiny analysis, and the subsequent ruling that the defendant has a right to a jury instruction on his individual dangerousness, are actually less interesting in some ways. This case may or may not ever get before the Tenth Circuit, but it would be interesting to see how the standard of review is analyzed if there's an appeal (there are some issues with the posture of this case that probably means the specific jury instruction isn't going to be addressed - if the defendant is convicted after his requested instruction was granted, he'll be left only with a facial Constitutional challenge to §922(g)(9); if he's acquitted, the Circuit may never see the case).
6.19.2009 11:37pm
Brett Bellmore:

That's a first, to my knowledge.


Not really. The Fifth Circuit in the Emerson case claimed to be applying strict scrutiny, too. Sure looked to me like rational basis analysis, though.
6.20.2009 7:15am
J. Aldridge:
Clayton E. Cramer said: "There is a strong argument for incorporation through the privileges and immunities clause, but having rejected that approach in the 1870s..."

There is no strong argument for incorporation, in fact there is no factual basis to even suggest such a thing other than for due process. Slaughter-House concluded the same thing as the congress who adopted the amendment had: Federal and state citizenship are two different status just as under the original constitution. Bingham, H.R. No. 22, 1871, "the words ‘citizens of the United States,’ and ‘citizens of the States,’ as employed in the Fourteenth Amendment, did not change or modify the relations of citizens of the State and the nation as they existed under the original Constitution."
6.20.2009 7:21am
MarkField (mail):

I would more readily strip a person of the right to vote, than I would strip of the right to obtain means of equalizing a confrontation involving physical violence.


We tried this experiment on two large groups of American citizens, women and blacks. Epic fail. No other right can be protected if the right to vote is lost.
6.20.2009 10:11am
troll_dc2 (mail):
Jon Roland. You wrote:


The doctrine of the presumption of constitutionalty is not a construction of the Constitution, which logically requires just the opposite. The doctrine, and decisions pursuant to it, are prudential, for the convenience of the Court. The Court is saying it doesn't want to take the heat it would catch if it decided the cases in accordance with the Constitution, so it avoids doing so and puts the burden on the voters to elect different officials if they want relief. That might be all very well for the constitutional order generally, but it doesn't do much good for the parties to the case before the Court. That is sacrificing the few for the comfort of the (also few) judges.



I am curious as to your authority for this perspective. So-called logic will not do. You claim that the presumption exists for the convenience of the Court. I am not sure how you know this.

But I can offer a real reason for the presumption that has nothing to do with judges. It is that society cannot function efficiently if citizens cannot assume that a legislative measure is constitutional unless otherwise demonstrated. Court cases take years. What are people supposed to do in the meantime?

Moreover, most constitutional challenges fail. Yet virtually any bit of legislation can be made to raise a federal constitutional issue. Opponents of specific legislation can sabotage it by finding someone to serve as a party and taking it to court.
6.20.2009 10:45am
troll_dc2 (mail):
This post responds to J. Aldrige's post:

Clayton E. Cramer said: "There is a strong argument for incorporation through the privileges and immunities clause, but having rejected that approach in the 1870s..."

There is no strong argument for incorporation, in fact there is no factual basis to even suggest such a thing other than for due process. Slaughter-House concluded the same thing as the congress who adopted the amendment had: Federal and state citizenship are two different status just as under the original constitution. Bingham, H.R. No. 22, 1871, "the words ‘citizens of the United States,’ and ‘citizens of the States,’ as employed in the Fourteenth Amendment, did not change or modify the relations of citizens of the State and the nation as they existed under the original Constitution."



Be careful about what you say about Rep. Bingham. Like many of the radical Republicans, he believed that the Bill of Rights ALREADY applied to the states and that Barron v. Baltimore had been incorrectly decided. The phrase "privileges and immunities" was used as shorthand for the Bill of Rights. See Curtis, No State Shall Abridge, 124-125.

I note with interest this observation by Curtis:


One could ask why "the Bill of Rights" was not explicitly written into the Fourteenth Amendment, as due process and citizenship were. The reason, of course, is that the rights in the Bill of Rights make up the most important, but not all, of the rights of citizens of the United States.
6.20.2009 11:06am
David M. Nieporent (www):
There is no strong argument for incorporation, in fact there is no factual basis to even suggest such a thing other than for due process. Slaughter-House concluded the same thing as the congress who adopted the amendment had: Federal and state citizenship are two different status just as under the original constitution. Bingham, H.R. No. 22, 1871, "the words ‘citizens of the United States,’ and ‘citizens of the States,’ as employed in the Fourteenth Amendment, did not change or modify the relations of citizens of the State and the nation as they existed under the original Constitution."
I see we're back to the tax protester approach of taking random quotes out of context and pretending they mean something entirely different than they mean.
6.20.2009 2:07pm
MikeS (mail):
Unless they can produce actual physical evidence that they weren't guilty of DV in the first place. In that case they can...

Nope. Never mind.
6.20.2009 2:39pm
cboldt (mail):
-- We tried this experiment on two large groups of American citizens, women and blacks. Epic fail. No other right can be protected if the right to vote is lost. --
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I had in mind the one-off stripping of rights, conditioned on conduct or disqualifying factor other than the two you noted. I think that difference is abundantly clear from my posts, and find your historical counterexample to be hyperbolic.
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As a matter of being repetitive, in the hopes that it aids your intake of my logic, in this one-off mode of disqualification, a single individual's loss of vote probably doesn't change any outcome in any political vote. But a single individuals loss of RKBA might result in that individual losing his life, or failing to protect the life of a loved one.
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Even on a macro level (the subject that you changed to), I disagree that rights necessarily lose protection when the government stifles the vote. See benevolent dictatorships and monarchies with plenty of due process and other legal rights. And for the value of brute force power of physical violence, see circumstance where a group of like-minded people can overpower a despotic government with force and demand redress of grievances. See Magna Carta.
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All rights are at risk (not just the right to vote) after the government succeeds in eliminating the ability of the people to resist with threat of physical violence.
6.20.2009 4:15pm
troll_dc2 (mail):

But a single individuals loss of RKBA might result in that individual losing his life, or failing to protect the life of a loved one.



Not only that, but it might also mean that someone who otherwise might die instead gets to live on.
6.20.2009 4:40pm
MarkField (mail):

I had in mind the one-off stripping of rights, conditioned on conduct or disqualifying factor other than the two you noted.


That's a pointless exercise. Also irrelevant to your "right to resist government tyranny" argument, which can only apply collectively.


But a single individuals loss of RKBA might result in that individual losing his life, or failing to protect the life of a loved one.


I'd put the probability at roughly the same level as a single vote affecting an election.


I disagree that rights necessarily lose protection when the government stifles the vote. See benevolent dictatorships and monarchies with plenty of due process and other legal rights.


In those situations, you have exactly as many "rights" as they choose to give you. At a crunch, that's zero.


All rights are at risk (not just the right to vote) after the government succeeds in eliminating the ability of the people to resist with threat of physical violence.


Then you should accept that all rights are at risk everywhere in the world today. Except for guerrilla war and terrorism, the weapons available to citizens are utterly insufficient to pose a threat to any military force. The fact is, many of the countries which are most free are those with the fewest arms (e.g., Europe), and those with the most arms (e.g., Afghanistan) are the most dangerous and least protective of rights.
6.20.2009 5:05pm
W. W Woodward (mail):
David Hardy: “… [T]he DD prohibition came in in 1968 because (1) one Senator said that if a fellow couldn't be counted on to carry a gun for his country, he shouldn't be able to carry one outside of service, either …”

Me: In using this argument to restrict or forbid possession of a firearm; It would follow that an individual with a medical deferral from military duty should also have his firearm rights suspended. What?


Order of the Coif: (FUGLE posted: While shouting at one’s spouse (roommate, girl/boyfriend, baby momma) is not acceptable,)

“Why not? It sure isn't ‘violence.’ As First Amendment scholars say all the time, ‘No one is hurt by mere words.’”

Me: Undesired physical contact, whether the contact does or does not result in injury, and/or a threat to commit imminent bodily injury, whether or not the threat is carried out, are assaults and if committed in a family type situation will go down as a DV record if one is convicted of said offense. Even if the incident occurred 50 (+) years ago and the nefarious actor never raised his hand or voice against another family member, or anyone else, in the intervening years. Thank you, Mr. Lautenberg.

It’s not about the guns. It’s about controlling the sheeple.
6.20.2009 5:24pm
cboldt (mail):
-- That's a pointless exercise. --
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What is? The one-off stripping of rights? We do that now, both as to voting as to RKBA.
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-- Also irrelevant to your "right to resist government tyranny" argument, which can only apply collectively. --
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Agreed. That's why I mentioned it as an adjunct but separate subject/object, to the poster who was focused on the value of the collective aspect.
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-- In those situations, you have exactly as many "rights" as they choose to give you. At a crunch, that's zero. --
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Agreed. And even in societies that have the vote, some people can be "treated badly." I don't think either, right to vote or RKBA, guarantees a just government.
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-- Then you should accept that all rights are at risk everywhere in the world today. --
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I don't think that is a controversial proposition at all. I think that's a permanent fixture of the human condition
6.20.2009 5:29pm
RichW (mail):
My Brother about 25 years ago at the age of 20 was given a DD from the Marines because he went AWOL. He did so for a couple of stupid reasons the main one being he was relegated to a desk job and bored out of his mind, it was his option as a way of getting out before is time was up. Only 15 years later did he find out (or understand) that he lost his RKBA and the even still later had problems adopting a child because of that. He was not violent in the least an worked work many years with child in a hospital ward.

So much for understanding future consequences.
6.20.2009 7:30pm
J. Aldridge:
I see we're back to the tax protester approach of taking random quotes out of context and pretending they mean something entirely different than they mean.

This is different than a taxpayer protest mainly because both the framers, newspapers and early courts left a well documented trail of what the words mean.
6.20.2009 7:34pm
J. Aldridge:
troll_dc2 wrote: "Be careful about what you say about Rep. Bingham. Like many of the radical Republicans, he believed that the Bill of Rights ALREADY applied to the states and that Barron v. Baltimore had been incorrectly decided."

No, Bingham always argued the bill of rights (first eight amendments) did not apply to the states, but Article IV, Sec. II (he referred to as a "bill of rights") did but congress had no power to enforce. Read carefully all his complaints of states violating citizens rights and you will see his examples did not involve states own citizens but other citizens of other states.

During his famous March 31, 1871 speech he said the first eight amendments "rightfully" never applied to the states. He brought up Barron v. Baltimore to only show Congress had no more authority to enforce the P&I's under Article IV then they did any of the first eight amendments.

Bingham, H.R. #22, 1871: "It had been judicially determined that the first Eight Amendments of the Constitution were not limitations on the power of the States, and it was apprehended that the same might be held of the provision of the second section, fourth article."
6.20.2009 7:38pm
cboldt (mail):
-- My Brother about 25 years ago at the age of 20 was given a DD from the Marines ... --
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18 USC 922(g)(6) was added by The Firearms Owners Protection Act (Public Law 99-308), in 1986. It may be that he's been "ex post facto'd," in that even if he DID know what ALL the ramifications were, 25 years ago, Congress added new ramifications after he made his decision.
6.20.2009 7:49pm
J. Aldridge:
The Framers of the 14th clearly stated that the 14th was intended to extend the jurisdiction of U.S. courts to include violations of the rights of U.S. citizens (made identical to resident persons) by state agents.

Yes, but no more then with any other expressed nugatory against the states. The fourteenth's first section is a negative provision only. Here is how Bingham explained it:
There are other negative provisions in the Constitution of the United States; for example, the express negative provision that no State shall pass any law impairing the obligation of contracts. By virtue of your judiciary act, as it has been in force from the foundation of the Government to this day, that limitation upon the power of the States is uniform, and whenever or where ever any State has undertaken by legislative enactment or by constitutional provision, if you please—I care not which—to impair the obligation of contracts, that wrong has, by the operation of your law, been righted.
6.20.2009 8:12pm
cboldt (mail):
-- The fact is, many of the countries which are most free are those with the fewest arms (e.g., Europe), and those with the most arms (e.g., Afghanistan) are the most dangerous and least protective of rights. --
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A couple of points cross my mind on this. One being that the objective isn't to have freedom for an instant, it's to have and PRESERVE freedom for your posterity. Many nations with few arms in the hands of the people have failed to obtain, let alone preserve for their posterity, a state of relationship against the government that is worthy of the label "freedom."
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The other point being that if the spectra of safe/dangerous and protective/disrespectful (as to rights) run "in proportion" with the number or rate of arms, the US is at the dangerous and disrespectful end.
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But the reality is opposite. How can this be? Culture has a large part to play, but too, the formation of US as a unique and special event in human history. For the first time in history, government was declared to be the servant, not the master.
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Too much philosophy on this thread - my fault in large part! But I failed to resist the temptation to respond to the contention that fewer guns results in more freedom and less danger.
6.20.2009 9:07pm
pintler:

But a single individuals loss of RKBA might result in that individual losing his life, or failing to protect the life of a loved one.

I'd put the probability at roughly the same level as a single vote affecting an election.


Just for a verrrrrry rough estimate, a quick google says the 2007 population is a little over 301 million, and there were a little over 1.4 million violent crimes. That works out to a raw probability of not being a violent crime victim in a given year of .995...; raising that to the 72nd power gives a probability of living a 72 year life without being a violent crime victim of .71, or a 29% chance of being a victim of a violent crime at some time in your life.

Of course, your risk is much, much higher if you are a crack dealer, much lower if you live in a nice neighborhood and avoid bars, etc. And I am including all violent crime, not just murder. Working the same numbers shows a raw lifetime risk of being murdered of about a half percent. Not much, maybe, but still quite a bit higher than the chance your vote is going to decide an election.

When you think about the policy tradeoffs for RKBA, it's worth remembering that some people's risk is much higher than others, e.g. the battered wife who finally threw the bum out probably faces a risk that exceeds that of an average police officer or even a soldier in Iraq. I imagine there are specific cases where being a judge, prosecutor, witness or juror has non trivial risks. Heck, I've heard of cases where the defense attorney was threatened. Any policy you consider should allow for those people. Look how society (rightly) bends over backwards to accommodate the disabled, and the effort we put into defending the rights of probably guilty crooks. People at risk for whom a little RKBA might reduce the risk need the same consideration.
6.20.2009 9:39pm
Clayton E. Cramer (mail) (www):

Just for a verrrrrry rough estimate, a quick google says the 2007 population is a little over 301 million, and there were a little over 1.4 million violent crimes. That works out to a raw probability of not being a violent crime victim in a given year of .995...; raising that to the 72nd power gives a probability of living a 72 year life without being a violent crime victim of .71, or a 29% chance of being a victim of a violent crime at some time in your life.
Makes sense to me; I've been the victim of battery (wrist broken by three thugs who beat me up); robbbery (relatively minor item stolen with the threat that if I resisted, I would be beaten to a pulp by the robber's "brothas," so I guess it was a hate crime too); attempted robbery (threat of a gun). And I've been much more lucky (or careful) than many people that I know, who have been robbed, raped, murdered, beaten, and maimed.
6.20.2009 11:22pm
David M. Nieporent (www):
This is different than a taxpayer protest mainly because both the framers, newspapers and early courts left a well documented trail of what the words mean.
First, they don't get to decide what the words mean.

Second, it's exactly what tax protesters do: pick random quotes out of context and claim that these quotes "prove" what the words mean. Bingham explicitly said that the 14th amendment was intended to apply the BoR to the states. Explicitly. But you ignore that, and pull out random quotes about the words "citizen of the United States," in a speech not about the Bill of Rights or its application to the states at all, but about whether women have the right to vote.
6.21.2009 11:35am
David M. Nieporent (www):
Yes, but no more then with any other expressed nugatory against the states. The fourteenth's first section is a negative provision only.
What's your point? Don't you understand that this is damning to your argument (*)? All of the BoR are "negative provisions."

(Moreover, the 5th section of the 14th, of course, is a positive grant of power to Congress.)





(*) That is, to the extent that any speech of an individual legislator can be damning, which of course isn't the case since John Bingham had no authority to determine the meaning or application of the 14th amendment.
6.21.2009 11:42am
Jon Roland (mail) (www):
David M. Nieporent:

John Bingham had no authority to determine the meaning or application of the 14th amendment.

No, nor does any framer of constitutional content, but citing the words of such framers is not about invoking them as authority. The meaning it had for the ratifiers is what counts, and they acquired their understanding from the words of such framers as Bingham. They were swimming in the sea of the framers' words.

So Binghams's words are not law, but they are legislative history, and evidence of the common understanding of the ratifying process.
6.21.2009 1:53pm
Jon Roland (mail) (www):
troll_dc2:

You claim that the presumption exists for the convenience of the Court. I am not sure how you know this.

It is a matter of historical linguistic analysis of the Constitution as a whole, the essense of which is a right to a presumption of nonauthority. Officials don't have power unless or until it is delegated to them. The evidence of this is most clearly stated in the Ninth and Tenth Amendments, in Madison's introduction of the Bill of Rights in Congress, and in such ancient Latin maxims as

In dubiis, non præsumitur pro potentia. In cases of doubt, the presumption is not in favor of a power.




... society cannot function efficiently if citizens cannot assume that a legislative measure is constitutional unless otherwise demonstrated. Court cases take years. What are people supposed to do in the meantime?

The same thing they were doing before the legislation was allegedly enacted. Society doesn't need legislation to function. It doesn't even need government if people are cooperative.


Moreover, most constitutional challenges fail.

That doesn't mean the challenges lacked merit, especially if the courts presume constitutionality.


Yet virtually any bit of legislation can be made to raise a federal constitutional issue. Opponents of specific legislation can sabotage it by finding someone to serve as a party and taking it to court.

The Constitution was designed to enable people to disable unconstitutional legislation in just that way.

Or are you arguing that the country can't survive without unconstitutional legislation. If so, I disagree.
6.21.2009 2:09pm
David M. Nieporent (www):
No, nor does any framer of constitutional content, but citing the words of such framers is not about invoking them as authority. The meaning it had for the ratifiers is what counts, and they acquired their understanding from the words of such framers as Bingham. They were swimming in the sea of the framers' words.

So Binghams's words are not law, but they are legislative history, and evidence of the common understanding of the ratifying process.
I don't disagree with that, but Aldridge doesn't treat them as mere "evidence" of how the amendments were understood. He treats them as binding authority. Even when he's citing -- as here -- Bingham's words from several years after the amendment was ratified.
6.21.2009 9:55pm
Melancton Smith:
ArthurKirkland wrote:

(5) In what circumstances might an effective right to keep and bear arms be used to secure "a voice at the table" in the context of today's United States of America? Do (or should) Americans commonly rely on firearms to arrange an agenda position at municipal meetings? Does walking up state capitol steps with an armed posse secure a seat at a committee hearing? Is a loaded machine gun the ticket to being heard in Congress? I suppose I could understand that thinking in a whacked-out white nationalist militiaman's mind, but outside that context it seems strange.


Of course this if figurative not literal. Wearing a gun doesn't literally gain one 'a seat at the table'. But having a well-armed populace generally leads to a form of government in which one is granted a seat at the table.
6.22.2009 10:33am