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Fifth Circuit continues to take Second Amendment seriously
Arms and the Law ^ | 6 April 2005 | David Hardy

Posted on 04/07/2005 10:54:16 AM PDT by jdege

Fifth Circuit continues to take Second Amendment seriously

Posted by David Hardy · 6 April 2005 04:12 PM

In United States v. Everist, 368 F.3d 517 (5th Cir. 2004), the issue was a challenge to the Federal bar on felons in possession. The Circuit, citing its earlier ruling in Emerson, upheld the bar, noting:

The Second Amendment right is subject to "limited narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country." Id . at 261. It is not inconsistent with the Second Amendment to limit the ability of convicted felons to keep and possess firearms.

Irrespective of whether his offense was violent in nature, a felon has shown manifest disregard for the rights of others. He may not justly complain of the limitation on his liberty when his possession of firearms would otherwise threaten the security of his fellow citizens. See id. (noting that "it is clear that felons, infants and those of unsound mind may be prohibited from possessing firearms"). Accordingly, § 922(g)(1) represents a limited and narrowly tailored exception to the freedom to possess firearms, reasonable in its purposes and consistent with the right to bear arms protected under the Second Amendment.*fn1 Everist's constitutional challenge to § 922(g)(1) fails.*fn2

*fn1 We need not decide whether the Second Amendment's boundaries are properly defined through strict scrutiny analysis, though it remains certain that the federal government may not restrain the freedom to bear arms based on mere whimsy or convenience. See Emerson , 270 F.3d at 261.

To my thinking, jurisprudence like this is critical to establishing the Second Amendment as a viable legal force. It cuts off the argument that "well, if we do recognize a right to arms we'll have to let convicted bank robbers pack, or allow heat-seeking missiles and thermonuclear devices." Which is roughly equivalent to "If we recognize freedom of speech and press we'll have to protect blackmail (which is no more than accepting money for not speaking), extortion notes, and death threats to the president." (Though I once did have a law prof. who made an interesting argument that the last is first amendment protected.).

In future posts I intend to develop this further, but right now I've got to stop for a while and practice law.


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Thus the 5th Circuit makes the ruling that the 3rd Circuit should have made in Tot v. US (131 F.2d 261).

You don't need to declare that there is no individual right to keep and bear arms in order to forbid convicted felons from possessing firearms.

It was Tot that invented the idea that Miller declared that there was no individual right, and from which all subsequent case law has derived.

And it's Tot - not Miller - that needs to be reversed.

1 posted on 04/07/2005 10:54:19 AM PDT by jdege
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To: jdege

I'm not so sure this is a win. If a felon can't be trusted with his rights, then shouldn't that person still be imprisoned? I don't see any Constitutional provision for citizens with partial rights.


2 posted on 04/07/2005 10:58:32 AM PDT by thoughtomator ("The Passion of the Opus" - 2 hours of a FReeper being crucified on his own self-pitying thread)
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To: thoughtomator
What's your problem thoughtomator? Aren't you aware that some animals are more equal than others? Get with the program!

There should be a </sarcasm> tag somewhere around here...

3 posted on 04/07/2005 11:04:36 AM PDT by zeugma (Come to the Dark Side...... We have cookies! (Made from the finest girlscouts!))
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To: zeugma

I'm the evil libertarian that sides with criminals, of course. It's my designated role. We all know no good citizen would ever be caught afoul of the law.



P.S. If you find that sarcasm tag anywhere, please send me a link!


4 posted on 04/07/2005 11:06:11 AM PDT by thoughtomator ("The Passion of the Opus" - 2 hours of a FReeper being crucified on his own self-pitying thread)
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To: thoughtomator

What about Megan's Law?


5 posted on 04/07/2005 11:07:44 AM PDT by Huck (Unauthorized mp3 file sharing is THEFT.)
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To: jdege; All
Jdege,

You might be interested in the docs regarding the Miller decision. It has more information about the history of it than you'll find just about anywhere.

You also might be interested in U.S. v. Dalton, and U.S. v. Rock Island Armory.

6 posted on 04/07/2005 11:09:16 AM PDT by zeugma (Come to the Dark Side...... We have cookies! (Made from the finest girlscouts!))
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To: jdege

A felon can lose access to his Rights via due process. It's in the Constitution. We don't need yet another ruling that someone can use to obfuscate the issue. Our judiciary and legislators just need to start taking the Constitution at face value. Period.


7 posted on 04/07/2005 11:10:05 AM PDT by Dead Corpse (Sooner or later, you have to stand your ground. Whether anyone else does or not. - Michael Badnarik)
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To: thoughtomator

Yeah, but criminals were different before the 1968 GCA. (/sarcasm)


8 posted on 04/07/2005 11:11:14 AM PDT by Dead Corpse (Sooner or later, you have to stand your ground. Whether anyone else does or not. - Michael Badnarik)
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To: jdege

"it is clear that felons, infants and those of unsound mind may be prohibited from possessing firearms"

Couldn't help but crack up at the infants part. I agree though.


9 posted on 04/07/2005 11:19:59 AM PDT by cotton1706
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To: thoughtomator

Absolutely!!

"Irrespective of whether his offense was violent in nature, a felon has shown manifest disregard for the rights of others. He may not justly complain of the limitation on his liberty when his possession of firearms would otherwise threaten the security of his fellow citizens."

If he is a threat to his fellow citizens with a firearm then he is also a threat to his fellow citizens with a knife, a baseball bat, and a motor vehicle. Why was he released from prison if he's a threat?


10 posted on 04/07/2005 11:21:53 AM PDT by logic ("All that is required for evil to triumph is for good men to do nothing......")
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To: thoughtomator
Why should the penalties of felonious conviction be limited to the inside of a prison? For me, the "public protection" aspect is secondary to retributivism. Part of the punishment, for instance, would be a set amount of time in a cell, and another part would be prohibition of arms ownership for a time when released from the cell.
11 posted on 04/07/2005 11:28:00 AM PDT by Tree of Liberty (requiescat in pace, President Reagan)
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To: logic
If he is a threat to his fellow citizens with a firearm then he is also a threat to his fellow citizens with a knife, a baseball bat, and a motor vehicle. Why was he released from prison if he's a threat?

That's an argument, but not one for this case. The legislature can vote to deprive a felon of any number of constitutional rights including the right to own a gun, the right to vote, the right to live outside of a prison. The prison sentence may be shorter than the amount of time it takes to fully restore his liberty. It is all part of the punishment.

12 posted on 04/07/2005 11:32:21 AM PDT by Texas Federalist (If you get in bed with the government, you'll get more than a good night's sleep." R. Reagan)
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To: Tree of Liberty

I don't disagree with the concept of non-prison penalties. I will simply note that the Second Amendment contains no such exception, and specifically states that there should be no law to abridge that right.


13 posted on 04/07/2005 11:42:03 AM PDT by thoughtomator ("The Passion of the Opus" - 2 hours of a FReeper being crucified on his own self-pitying thread)
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To: thoughtomator
I'm not so sure this is a win. If a felon can't be trusted with his rights, then shouldn't that person still be imprisoned? I don't see any Constitutional provision for citizens with partial rights.

The reason there is a problem is that there are too many felonies, especially non-violent felonies, which is what this case was about specifically. So it came down to this court not wanting to invent "felony lite." They took the safeest, least disruptive way out.

We are getting to the point, however, where too many people are felons for insufficent reason - mainly to scare the rest of us into complying with otherwise unenforceable laws.

14 posted on 04/07/2005 11:42:35 AM PDT by eno_ (Freedom Lite - it's almost worth defending.)
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To: thoughtomator
I will simply note that the Second Amendment contains no such exception

in being punished for a felony, a felon is deprived of a range of rights, none of which is made exception for in the BoR, starting with the basic deprivation of liberty in prison.

We just have to make sure we roll back "felony creep."

15 posted on 04/07/2005 11:46:11 AM PDT by eno_ (Freedom Lite - it's almost worth defending.)
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To: thoughtomator
I will simply note that the Second Amendment contains no such exception, and specifically states that there should be no law to abridge that right.

That is my thought as well.

The second Amendment, being part of the Constitution, is a enumerated, or POSITIVE right.

'Shall not be infringed' would mean the government cannot restrict anyone from exercising their NATURAL right to defend themselves, for any reason.

The media is always saying the phrase 'paid his/her debt to society' when someone is released from prison.

If they've already paid, why continue to punish them?

If they haven't paid enough, why release them?

16 posted on 04/07/2005 11:56:46 AM PDT by MamaTexan (Thank you Minutemen...you are true American HEROES!)
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To: cotton1706

Infants is a legal term, meaning those considered to be legally under-age (under 18, for example). It is a term often used in contract law indicating that one of the parties to the contract is unable to enter the contract due to the age of that party.


17 posted on 04/07/2005 12:26:54 PM PDT by Hardastarboard
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To: Hardastarboard

Oh, ok. Still funny, though.


18 posted on 04/07/2005 12:33:21 PM PDT by cotton1706
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To: Tree of Liberty
Why should the penalties of felonious conviction be limited to the inside of a prison? For me, the "public protection" aspect is secondary to retributivism. Part of the punishment, for instance, would be a set amount of time in a cell, and another part would be prohibition of arms ownership for a time when released from the cell.

I'm perfectly willing to entertain arguments concerning the utility of restrictions on firearms possession by felons. Or the futility of such restrictions, if you'd rather.

But I don't see grounds for an argument of right. We inflict punishment on indiduals who are found guilty of crimes. The only constitutional arguments against making a disability on firearms possession a part of that punishment would be that it violated due process, or constituted cruel and unusual punishment. That it would violate the RKBA simply makes no sense.

19 posted on 04/07/2005 1:03:01 PM PDT by jdege
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To: Texas Federalist
The legislature can vote to deprive a felon of any number of constitutional rights including the right to own a gun, the right to vote, the right to live outside of a prison. The prison sentence may be shorter than the amount of time it takes to fully restore his liberty. It is all part of the punishment.

No, it's *not* all part of the punishment. In fact, the reason that the courts allow these sorts of additional restrictions on felons--restrictions that were written into law long after many felons committed their crimes and served their sentences--is because these aren't considered punishments at all. They're considered public safety measures. As I'm sure you're aware, any ex post facto increase in a person's punishment is unconstitutional, hence we resort to redefining obvious punishment as a public safety measure. Voila! Nice easy Constitutional sidestep. Of course, as and added convenience to allowing the sidestep to continue, felons often aren't even allowed to vote to have these (un)-unconstitutional laws changed.

20 posted on 04/07/2005 5:02:23 PM PDT by Sandy
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To: jdege
limited narrowly tailored specific exceptions or restrictions

A loophole you could drive a truck through. If this court ever actually strikes down a particular restriction instead of just paying lip service to the 2nd Amendment, I'll shit a brick.

21 posted on 04/07/2005 5:06:37 PM PDT by Sandy
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To: Sandy
No, it's *not* all part of the punishment. In fact, the reason that the courts allow these sorts of additional restrictions on felons--restrictions that were written into law long after many felons committed their crimes and served their sentences--is because these aren't considered punishments at all. They're considered public safety measures. As I'm sure you're aware, any ex post facto increase in a person's punishment is unconstitutional

An ex post facto law is one imposing a punishment retroactively, i.e. applying to crimes committed before the law was passed. It has nothing to do with the situation we are discussing.

And while you are right that the law keeping felons from possessing firearms was passed largely because of a public safety rationale, I think it can be justified as part of a felon's punishment, like taking away their right to vote.

22 posted on 04/08/2005 8:18:15 AM PDT by Texas Federalist (If you get in bed with the government, you'll get more than a good night's sleep." R. Reagan)
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To: Texas Federalist

But he specifically referred to those whose felonies were committed before the passage of the gun-ban-life law, yet it is still applied to them. How is that not ex post facto?


23 posted on 04/08/2005 9:26:28 AM PDT by Still Thinking (Disregard the law of unintended consequences at your own risk.)
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To: Still Thinking; Sandy
But he specifically referred to those whose felonies were committed before the passage of the gun-ban-life law, yet it is still applied to them. How is that not ex post facto?

My bad Sandy. I read your post too quickly. It is ex post facto as applied to felonies committed before the passage of the gun-ban-life law. I would be interested to know when that law was passed. Do either of you know?

24 posted on 04/08/2005 1:27:42 PM PDT by Texas Federalist (If you get in bed with the government, you'll get more than a good night's sleep." R. Reagan)
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To: Still Thinking; Sandy

Here's another thing about the act which actually goes against my original argument that it is part of the punishment. The federal Gun Control Act of 1968 made it a crime for anyone convicted of a felony to possess a handgun. I am unaware of an instance where the federal government has the power to impose punishment for a crime convicted on the state level. So the statute would have to be based entirely on a public safety rationale.

So Sandy is right. This law is bogus, although I think you could justify a state law applying to state cases and a federal law applying to federal cases depriving a felon of his 2nd amendment rights for a period of time as part of the punishment.


25 posted on 04/08/2005 1:56:51 PM PDT by Texas Federalist (If you get in bed with the government, you'll get more than a good night's sleep." R. Reagan)
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To: Texas Federalist; Sandy
I am unaware of an instance where the federal government has the power to impose punishment for a crime convicted on the state level.

Excellent point. I should have caught that. Even more egregious in the same vein: treating people as felons for the purposes of this law for breaking the law of a foreign country. (ie, the Texas case of a gun dealer whose gun right were forfeited because he was charged in Mexico for driving across the border carrying a few rounds).

I think you could justify a state law applying to state cases and a federal law applying to federal cases depriving a felon of his 2nd amendment rights for a period of time as part of the punishment.

Okay, I'll go along, as long as the forfeiture is for a fixed period of time and proportionate to the severity of the felony (with life forfeiture OK for extremely serious crimes such as murder rape, kidnapping, etc.). If that's to be done, the states should be required to reclassify at least 70% of their felonies as misdemeanors, or we could create two classes of felonies, one of which would not count from a gun rights perspective.

26 posted on 04/08/2005 6:25:10 PM PDT by Still Thinking (Disregard the law of unintended consequences at your own risk.)
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To: Onyxx

bump for later discussion


27 posted on 04/08/2005 6:28:47 PM PDT by Unknown Freeper
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To: Texas Federalist
It is ex post facto as applied to felonies committed before the passage of the gun-ban-life law.

Except that it *isn't* being applied to the earlier-committed felonies, at least according to Congress and the courts. Nope, the person is only being punished for the crime of being a felon in possession. It only *looks* like he's being re-punished for the earlier crime. Of course it's insane imho that something that looks so obviously like a punishment can be considered by our government to be something completely different. We're seeing the same thing more recently where persons convicted years earlier of *misdemeanor* domestic violence are being required to give up their guns and/or can't buy new guns because of the prior convictions. And now there's stuff like Megan's Laws, where registering as a sex-offender years after a person has served a sentence isn't considered to be an added punishment. Nor is putting a sex-offender into a mental ward years after he served his time considered to be an increase in punishment. Call it anything, but don't call it punishment, because after-the-fact increases in punishment are exactly what the Ex Post Facto Clause forbids. That was really my only point.

28 posted on 04/09/2005 1:07:29 AM PDT by Sandy
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To: Dead Corpse
A felon can lose access to his Rights via due process. It's in the Constitution.

That's true, but the blanket ban on felons having the RKBA may not be proper due process, on two counts. First it may be that the removal of rights must be as part of the individual trial and sentence. Secondly, and related, is the "retroactive" nature of the "punishment". That is, people whose felony convictions predate the law banning felons from possessing firearms may have a good argument that it is an ex post facto law.

29 posted on 04/09/2005 10:00:37 AM PDT by El Gato (Activist Judges can twist the Constitution into anything they want ... or so they think.)
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To: Tree of Liberty
Part of the punishment, for instance, would be a set amount of time in a cell, and another part would be prohibition of arms ownership for a time when released from the cell

That's fine if it's part of the individual sentence arrived at after proper due process. Of course the current "punishment" is not "for a time", it's forever. Theoretically a felon can petition for restoration of the RKBA, but currently BATFE, and the rest of the federal government, is forbidden from spending any money on such restoration proceedings.

Another problem is that the prohibition is a federal one, but the felonies are most often state crimes. The crime not need even be defined as a felony in the state where it occurred, the federal law just says "punishable by more than one year in year", it also doesn't matter that a jury (in those states where the jury decides the punishment, within some limits) might only have required a fine.

Then there is the question of losing the RKBA due to a mere "domestic violence" restraining order, irregardless of whether any crime at all had taken place, and issued with a bare minimum of due process.

30 posted on 04/09/2005 10:15:51 AM PDT by El Gato (Activist Judges can twist the Constitution into anything they want ... or so they think.)
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To: jdege
And it's Tot - not Miller - that needs to be reversed.

I'd say they both need to be reversed. Miller stands for the notion that some sort of legislative "infringement" of the RKBA is allowed, based merely on the character of particular arms. It dealt with the National Firearms Act, and specifically with short barreled shotguns. Why should the right to keep and bear a perfectly good home defense firearm be subject to such legislative fiat? It's also fodder for those judges and justices who want to read "right of the people" as "right of the militia" and then, often as not, define the militia as the National Guard.

31 posted on 04/09/2005 10:21:19 AM PDT by El Gato (Activist Judges can twist the Constitution into anything they want ... or so they think.)
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To: MamaTexan
The second Amendment, being part of the Constitution, is a enumerated, or POSITIVE right

Actually it's not a positive right. If it were a postive right, the government would have to provide everyone with arms. Not a bad idea, perhaps, but not what the second amendment means or says. What it is a negative right, that is it forbids the government from infringing on a pre-existing natural right.

32 posted on 04/09/2005 10:25:57 AM PDT by El Gato (Activist Judges can twist the Constitution into anything they want ... or so they think.)
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To: Sandy
Except that it *isn't* being applied to the earlier-committed felonies, at least according to Congress and the courts. Nope, the person is only being punished for the crime of being a felon in possession. It only *looks* like he's being re-punished for the earlier crime

If it's not due process punishment for a crime, then it must be a public safety measure, but it's also then an infringement on the right to keep and bear arms.

The Congress and Courts just use whichever rational allows them to do what they choose, Constitution be damned.

33 posted on 04/09/2005 10:43:38 AM PDT by El Gato (Activist Judges can twist the Constitution into anything they want ... or so they think.)
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To: jdege
But I don't see grounds for an argument of right. We inflict punishment on indiduals who are found guilty of crimes. The only constitutional arguments against making a disability on firearms possession a part of that punishment would be that it violated due process, or constituted cruel and unusual punishment. That it would violate the RKBA simply makes no sense.

The argument of right comes in conjunction with the requirement for due process to remove that right. If it isn't a right, including a 9th amendment right BTW, then problems of ex post facto and/or due process don't come in....although it might be then be considered a bill of attainder directed at a particular class or group of people, but probably not.

34 posted on 04/09/2005 10:47:58 AM PDT by El Gato (Activist Judges can twist the Constitution into anything they want ... or so they think.)
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To: MamaTexan

'Shall not be infringed' would mean the government cannot restrict anyone from exercising their NATURAL right to defend themselves, for any reason.

This is why laws that a felon caught wearing a bullet proof vest is guilty of a felony are wrong.


35 posted on 04/09/2005 10:50:48 AM PDT by tet68 ( " We would not die in that man's company, that fears his fellowship to die with us...." Henry V.)
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To: El Gato
Actually it's not a positive right.

Yes, it is. A positive right is written under positive, or man made law:

law.com

positive law
n. statutory man-made law, as compared to "natural law," which is purportedly based on universally accepted moral principles, "God's law," and/or derived from nature and reason.

The right that anyone has to defend themselves is a natural right. Natural rights are given to us by natural law, or the law of Nature and Nature's God.

law.com
natural law
n. 1) standards of conduct derived from traditional moral principles (first mentioned by Roman jurists in the first century A.D.) and/or God's law and will. The biblical Ten Commandments, such as "thou shall not kill," are often included in those principles. Natural law assumes that all people believe in the same Judeo-Christian God and thus share an understanding of natural law premises.
2) the body of laws derived from nature and reason, embodied in the Declaration of Independence assertion that "all men are created equal, that they are endowed by their creator with certain inalienable Rights, that among these are Life, Liberty and the pursuit of happiness."
3) the opposite of "positive law," which is created by mankind through the state.

What the second amendment does is to give us a SPECIFIC means to defend ourselves (firearms) that cannot be taken away by government.

shall not be infringed

Now the phrase negative right seemed contradictory on its face. Just to be sure, I checked for it, and it isn't listed in any of these On-line Legal Dictionaries, nor is it a phrase I've ever come across.

36 posted on 04/09/2005 5:02:20 PM PDT by MamaTexan (Minutemen.....the REAL American heroes!!)
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To: tet68
This is why laws that a felon caught wearing a bullet proof vest is guilty of a felony are wrong.

Is it really? I didn't know that!

37 posted on 04/09/2005 5:03:08 PM PDT by MamaTexan (Minutemen.....the REAL American heroes!!)
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To: MamaTexan

Not in all states.


38 posted on 04/09/2005 5:07:30 PM PDT by tet68 ( " We would not die in that man's company, that fears his fellowship to die with us...." Henry V.)
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To: thoughtomator
I'm not so sure this is a win. If a felon can't be trusted with his rights, then shouldn't that person still be imprisoned? I don't see any Constitutional provision for citizens with partial rights.

Here is one.

Amendment XIII

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

The part that says "except as a punishment for crime whereof the party shall have been duly convicted" means that a convicted criminal can be judicially enslaved (made a slave).

If a convicted criminal can have all rights removed, by being reduced to the status of property, that criminal can have any and all other rights selectively removed.

39 posted on 04/09/2005 5:18:26 PM PDT by LibKill (Beer is proof that God loves us and wants us to be happy.)
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To: El Gato
You can "petition" to get your Rights restored. Personally, I feel that if you are too dangerous to be allowed back on the streets, you shouldn't be let out.

I didn't say I agreed with the policy, only what the Constitution states. Used to be, Sheriff let you out of the pokey, you got your six guns back. Of course, more good guys were "allowed" to ventilate the bad guys back then as well.

40 posted on 04/09/2005 7:59:05 PM PDT by Dead Corpse (Sooner or later, you have to stand your ground. Whether anyone else does or not. - Michael Badnarik)
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To: LibKill

Guess you're right. If a person can be convicted of a crime, they become the slave of the state.

Amazing how widespread that has become.


41 posted on 04/09/2005 8:49:49 PM PDT by thoughtomator ("The Passion of the Opus" - 2 hours of a FReeper being crucified on his own self-pitying thread)
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To: LibKill

On second thought... if someone's 2nd Amendment rights can be taken away upon conviction of a crime, why can't their 8th Amendment rights be similarly removed? Yet if the 8th Amendment rights can be removed upon conviction of a crime, then the entire amendment is meaningless!


42 posted on 04/09/2005 9:19:40 PM PDT by thoughtomator ("The Passion of the Opus" - 2 hours of a FReeper being crucified on his own self-pitying thread)
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To: Dead Corpse
You can "petition" to get your Rights restored.

You can "petition" but current law requires that petition to go through the BATFE. They are forbidden by law, although not the US Code, but rather the budget, from spending any money to act on your petition. The law, US Code, provides that if your petition is turned down, you can appeal to a federal court. However, in the worst Catch 22 to come down the pike in some time, the federal Courts have ruled that not acting on your petition is not the same as turning it down, and will not hear your case either. So you are screwed blued and tattooed. This even applies in cases where folks have been pardoned by the executive branch of state government. It also applies if the "crime" you've committed was in a foreign country and would not have been a crime here and if the crime is no longer punishable by more than a year in jail, which is the threshold for the loss of RKBA, except for "domestic violence misdemeanors", which have no threshold.

As you can see, the basic tenets of Justice do not apply in our courts when the case involves those nasty icky guns.

43 posted on 04/10/2005 7:13:20 AM PDT by El Gato (Activist Judges can twist the Constitution into anything they want ... or so they think.)
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To: El Gato
I finally found a reference for 'negative right'.

It seems we were both talking about the same thing, just with a different names.

Negative right (From Wikipedia

The problem with this along with almost ALL encyclopedias/dictionaries/reference books)is that the description 'is a right, either moral or decreed by law', is actually a LEGAL impossibility. The two different types of law (positive law / natural law) CANNOT be mixed (see post #36). They are like oil and water.

That is the problem with the *legal* system. They have attempted to blend the different types of law in to one generic kind of law with everything defined by government. The two types of law is precisely what MAKES a *Republic*.

A quick check of the Constitution shows government does not and has never had the authority or legal right to *define* anything.

44 posted on 04/10/2005 7:24:21 AM PDT by MamaTexan (Minutemen.....the REAL American heroes!!)
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To: MamaTexan
has never had the authority or legal right to *define* anything.

Except punishments FOR crime.

45 posted on 04/10/2005 7:26:42 AM PDT by MamaTexan (Minutemen.....the REAL American heroes!!)
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To: MamaTexan
What the second amendment does is to give us a SPECIFIC means to defend ourselves (firearms) that cannot be taken away by government.

shall not be infringed

Now the phrase negative right seemed contradictory on its face. Just to be sure, I checked for it, and it isn't listed in any of these On-line Legal Dictionaries, nor is it a phrase I've ever come across.

The second amendment does not give us anything, it protects an existing natural right. It does not say "The people shall have the right to keep and bear arms.". It says the "right of the people to keep and bear arms shall not be infringed", implying that the right exists. And in fact the Supreme Court itself, in Cruikshank has ruled that the right was not created by the Constitution in their ruling that said that because it wasn't, it's not applied by the 14th amendment to the states. (The same ruling indicated that the first amendment is also not applied. That part is no longer "good law".

It's termed, by some at least, a negative right, because what the amendment really does is forbid the government from doing something. A positive right, which is not the same as a positive law but almost, would be one created by law (which includes the Constitution in this context.

Oh and the second amendment says "arms" not "firearms", so keeping and bearing knives and swords, along with "every other terrible implement of the soldier", is also protected.

I suspect that the term "negative right" was coined in contrast to "positive right" which would be similar to a "positive law".

46 posted on 04/10/2005 7:44:59 AM PDT by El Gato (Activist Judges can twist the Constitution into anything they want ... or so they think.)
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To: LibKill
The part that says "except as a punishment for crime whereof the party shall have been duly convicted" means that a convicted criminal can be judicially enslaved (made a slave).

I do believe that phrase applies to involuntary servitude, not to slavery. Almost the same thing, but an involuntary servant is not property, a slave is.

47 posted on 04/10/2005 8:04:31 AM PDT by El Gato (Activist Judges can twist the Constitution into anything they want ... or so they think.)
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To: El Gato
I do believe that phrase applies to involuntary servitude, not to slavery. Almost the same thing, but an involuntary servant is not property, a slave is.

" Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

The article explicitly lists slavery.

As a practical matter the courts and the public would not stand for it, but technically a convicted criminal could be judicially enslaved. Permanently. He could thereafter be bought and sold like any other chattel.

48 posted on 04/10/2005 8:40:46 AM PDT by LibKill (Beer is proof that God loves us and wants us to be happy.)
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To: LibKill
but technically a convicted criminal could be judicially enslaved. Permanently.

That's wrong on SO many levels.

I cannot believe the Founders intended for our legal system to have the ability to punish someone with such a secondary prohibition.

200 years ago, forbidding someone the use of a weapon to defend themselves would be tantamount to a death sentence.

Today, the reams of paper covered with the legalistic contortions of government do NOTHING to stop the convicted criminal from committing another crime......

and prevents the ones who truly DO wish to start anew the most basic right of defense for ones self and ones family.

49 posted on 04/10/2005 10:01:38 AM PDT by MamaTexan (I am not a *legal entity*, nor am I a 'person' as defined and/or created by law.)
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To: MamaTexan
That's wrong on SO many levels.

Personally, I abhor slavery. But the article means what it says in english. It does not mean what someones likes or dislikes would have it mean.

Liberals hate the second amendment, but their emotions do not invalidate the right to keep and bear arms.

Re-read the article:

Amendment XIII

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

It means what it says, not what you or I would have it mean.

50 posted on 04/10/2005 10:23:04 AM PDT by LibKill (Beer is proof that God loves us and wants us to be happy.)
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