Posted on 04/07/2005 10:54:16 AM PDT by jdege
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.
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.
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!
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.
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.
Except punishments FOR crime.
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".
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.
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.
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.
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.
After reading this I went to read Tot. I guess I don't follow you here. First the Court seemed to draw a distinction between interstate and intrastate commerce, which would be a good thing it seems if they were saying that a gun is not forever "in or affecting" interstate commerce. Still, they upheld one part and overturned the other and didn't find a major difference in the two cases.
Also I found no Miller reference. Could you comment more about this case?
Try this:
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=319&invol=463
Also, why was one upheld and the other not since both men were felons who were found to possess pistols?
Thanks
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.