Posted on 07/31/2008 5:19:13 AM PDT by marktwain
GUILDERLAND -- When Lou Matteo got his handgun collection back, town police averted a legal battle based on a new U.S. Supreme Court decision upholding an individual's right to own a gun.
Matteo, 75, turned over his firearms in March after a verbal spat with his wife led to an order of protection against him. Guilderland police refused to give the guns back, citing a federal law barring anyone under an order of protection from possessing firearms.
But on June 26, the nation's high court struck down a District of Columbia ban on handguns. The ruling also said long-standing provisions barring handgun possession by felons did not violate the Second Amendment.
Matteo has never been convicted of a crime, and his attorney, Tom Marcelle, said the Supreme Court ruling meant he was entitled to have his guns returned.
Matteo's case is the second locally and one of many expected nationwide in the wake of last month's decision, called District of Columbia vs. Heller, challenging legislation that bans or limits handgun ownership.
"Without the D.C. case, we have no case. 'Heller' basically was an invitation for people to test Second Amendment cases," said Marcelle, who won a 2001 Supreme Court case that allowed an after-school Bible study group in Otsego County.
In one of the first challenges under the landmark ruling, a Schenectady man is seeking dismissal of charges that he lied because he failed to disclose he was the subject of a protective order when he filled out a form used for background checks on people purchasing a firearm.
In March, Matteo was accused of ripping the phone from his wife's hand when she tried to call police to report his verbal abuse, according to court records. Guilderland police issued an order of protection, and he turned over the guns, which are registered and possessed legally.
A week later, however, the case was dismissed by Town Justice John Bailey, who ordered Matteo's guns be returned.
The Matteos said they no longer even remember what prompted their quarrel. Marisol Matteo signed statements that her husband had never threatened her with a weapon and she was not concerned about him ever doing so. The domestic dispute case was over.
But the order of protection remained. Marcelle said under the "Heller" decision, Matteo, a law-abiding citizen, was allowed to have his guns.
Town Attorney Dick Sherwood denied any link between the Matteo case and the Supreme Court ruling. He said the town must follow the existing federal law: Returning the guns requires an order from federal court, not a town court.
Matteo's guns were returned after he filed his case in federal court. Sherwood said a change in the law would eliminate an illogical legal process.
"You have the power to take the guns away, you don't have the power to give them back," Sherwood said. "Our hands were tied."
For Marcelle, it is only a matter of time before a town attorney somewhere tests the legal system by refusing to return guns to a person who has not been convicted of a crime, and that case will further define rights under the Second Amendment.
Scott Waldman can be reached at 454-5080 or by e-mail at swaldman@timesunion.com.
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I believe that the above statement is false. In fact, once the case was dismissed and the guns ordered returned, I believe the town was violating the law by not returning his lawfully owned firearms.
I do.
A restraining order isn’t a conviction.
You can get a restraining order fairly easily, especially when a spouse is involved.
The problem is that a liberal leaning judge will see this as a tool to remove guns in a prophalactic ruling rather than based on real evidence.
a TEMPORARY order is issued ex-parte without the other side without hearing usually with just written request.
These illiterate cops are saying the TEMPORARY without hearing ruling results in a permanent loss of fundamental rights?!!
It is not just plain wrong, it is vulgar and obscene for police to make that stand.
Yep.
That’s the best advice upon the first hint of marital problems.
A buddy signed his over to a friend on my advice.
And I have no problem with most restraining orders.
Ordering a person to stay away from you, as long as it doesn’t significantly impact their life, is an OK idea under most circumstances. Most people respect them, but they won’t even pause the hard-core crazies.
Just had a guy in Indy kill his wife, her boyfriend and then himself.
Restraining order didn’t do jack sh!t.
Taking away rights, however, is just wrong.
My ex-wife took my 9mm during our divorce and gave it to her lawyer. I discovered it gone about two weeks after she did it. I call her lawyer and told her she was in holding a stolen gun and I wanted it returned. It was locked in the lawyers desk. I told the female lawyer that she would return the gun or I will be in her office with the Fairfax County Police for keeping a stolen gun. I got the gun right back.
That is idiotic. Possession of the pawn ticket can be used to show “possession”. Any judge with a dime store law degree will not fall for that BS stunt.
The judge could order the monies turned over for support and direct the person to forfeit the ticket.
after a full and fair hearing.
We have judges using the Ex-parte window to essentially bypass the fundamental rights test.
Imagine an exparte gag order on free speech until a hearing two weeks later.
The adjectives just keep on coming when describing our "government run amok" that is so pervasive these days.
But it is an excellent opportunity for the police to go rummaging through your safe and decide what might look better in their safe.
Agreed.
Both parties should be represented.
Are you one of those people who spews his deep dark secrets to any authority figure? Then NONE of my advice on anything is for you.
Alternately you can rent a room from a trusted friend, and store your firearms there. It’s not a “transfer”, since they are stored in a space that you are renting.
“Most states you cannot transfer a gun without a dealer.”
A common misconception. The reality is the inverse. Most states do not require a dealer to be involved in a private transaction.
There are only a few nanny States like New Jersey, New York, Massachusetts, and California that require gun transactions to go through a dealer.
I don’t know since I’ve never had occasion to do it, but I’m told that, if a person pawns a gun, that person must undergo the same background checks to redeem it from pawn as if they were buying it for the first time. There is no recorded gun registration in my state so, even though I have a carry permit, the state has no way of knowing whether I have guns or not.
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