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Gun Rights Don't Apply In Domestic Violence Cases, Appeals Court Rules
cbs ^ | 14 August, 2009 | Declan McCullagh

Posted on 08/15/2009 9:06:28 AM PDT by marktwain

Last year's U.S. Supreme Court ruling on the Second Amendment did not, contrary to what you may have heard at the time, resolve very much.

Unanswered are questions about carrying firearms in public, gun sales on government property, firearm registration, guns in government housing, handgun restrictions that aren't exactly the same as the District of Columbia's, zoning and gun stores, and so on. And so far, at least, lower courts have been overwhelmingly hostile to gun owners' rights.

The latest example is a decision late Thursday by the U.S. Court of Appeals for the Tenth Circuit, which said that a criminal defendant may not be allowed to present a Second Amendment defense to a federal jury in Utah. It came after the appeals court granted an extraordinary emergency appeal, called a writ of mandamus, from the Justice Department after the district judge agreed to allow those jury instructions.

The defendant, Rick Engstrum, has an earlier misdemeanor domestic violence conviction and has been charged with possessing a firearm in violation of a federal law that applies to anyone "who has been convicted in any court of a misdemeanor crime of domestic violence." He has pleaded not guilty.


TOPICS: Constitution/Conservatism; Culture/Society; Extended News; News/Current Events
KEYWORDS: banglist; constitution; domestic; domesticviolence; heller; ruling
It is a travesty that judges are not allowing jurors to hear constitutional defenses. It is a prime part of what jurors are supposed to judge.
1 posted on 08/15/2009 9:06:28 AM PDT by marktwain
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To: marktwain

That’s certainly true as far as it goes, but a large part of the blame rests with the citizens themselves. Why would an educated, informed citizen need to be told by an employee what his role and rights are? Shouldn’t he know them better than the employee?


2 posted on 08/15/2009 9:12:18 AM PDT by Still Thinking (If ignorance is bliss, liberals must be ecstatic!)
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To: marktwain

That’s no big surprise for the tenth circus court of appeals. Obviously, we’re going to have to fight more cases before the USSC. Hopefully, before we have a stacked liberal court in the USSC too.


3 posted on 08/15/2009 9:18:05 AM PDT by NRA2BFree ("To sin by silence when they should protest makes cowards of men." Abraham Lincoln)
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To: marktwain
Infringement is infringement. Denying gun possession to ex-felons was only the first step to the travesty we have today, when "law-abiding" citizens (those who haven't yet fallen into the ever-increasing web of snares laid out by their government) are disarmed while criminals remain armed.

Allow ex-felons to possess guns (the ones they already have) and the silliness of background checks, one gun per month, licensed and regulated gun ownership and all the rest goes away.

When you infringe the rights of others, it's your own rights you are giving up.

"When they came for..."

4 posted on 08/15/2009 9:21:35 AM PDT by Clint Williams (Read Roto-Reuters -- we're the spinmeisters | America -- a great idea, didn't last.)
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To: marktwain

Making laws is one thing. Enforcing them is another. I think the FedGov has pushed the people just about as far as they can.


5 posted on 08/15/2009 9:38:56 AM PDT by TigersEye (0bama: "I can see Mecca from the WH portico." --- Google - Cloward-Piven Strategy)
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To: Clint Williams
Infringement is infringement. Denying gun possession to ex-felons was only the first step to the travesty we have today

Absolutely correct. I've had my arguments with some here who will cite the 13th as grounds for infringing on 2nd A rights for convicted felons, believe it or not.

6 posted on 08/15/2009 9:48:17 AM PDT by Las Vegas Ron (Americans, just reading the bills and doing the jobs their representatives won't do)
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To: Las Vegas Ron

Woah, how do they get from involuntary servitude for the punishment of a crime to loss of a fundamental right for life? By that rationale, it would also be Constitutional to permanently regulate what ex-felons say and where they go to church.

A friend of mine was helping represent a man here in North Carolina who had had his gun rights terminated due to a marijuana conviction from when he was 19. Never mind that he is in his 50s now and a successful, productive, and law-abiding member of society, and never mind that the crime he committed is today only a misdemeanor

I’ll have to check up on how that’s going. He was drafting the brief for the N.C. Supreme Court about a year ago.


7 posted on 08/15/2009 2:20:39 PM PDT by The Pack Knight (Duty, Honor, Country)
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To: marktwain
I wonder what line of argument the person used. I would like to see the issue framed in very simple terms:
  1. Is the Constitution the supreme Law of the Land throughout the United States?
  2. Is a jury required to follow the Constitution? (If not, how can the Constitution be regarded as the supreme Law of the Land?)
  3. Can there be any legitimate reason to require that a jury not know the supreme Law of the Land that they are required to follow?
IMHO, a lot of judges know full well that they, along with prosecutors, routinely subvert the Constitution, and that a jury which was informed of its rights and duties would call them on it. For example, judges who keep juries in the dark regarding mandatory sentencing do so because they know that juries would likely recognize the sentences as excessive and uphold their duty to uphold the Constitution (particularly the prohibition against cruel and unusual punishments) by refusing to convict. Such judges need to be impeached and removed from office, but unfortunately many so-called "law and order" Republicans support totalitarian anarchists over the Constitution.

Note: While jurors are ethically required to put the Constitution over their own consciences, they have a right and duty to judge whether the sentence that would result from a conviction would be excessive based upon their interpretation of the facts of a case. Some cases of nullification would be entirely appropriate; others would not.

8 posted on 08/17/2009 3:58:27 PM PDT by supercat (Barry Soetoro == Bravo Sierra)
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To: The Pack Knight
By that rationale, it would also be Constitutional to permanently regulate what ex-felons say and where they go to church.

If part of the statutory punishment for a particular crime would be that the defendant would for the next 500 years have to report to the government prior to publishing anything, and if a jury decided that such a punishment was appropriate given the defendant's actions, what would be the problem with it, especially if the crime was one that would have justified keeping the defendant in prison for 500 years and not letting him publish anything?

There is no justification for the present statutory scheme by which the federal government has decreed a federal lifetime ban on firearms possession by people who have convicted in state courts of crimes for which those state courts would not otherwise disarm them. On the other hand, I don't see that the Second Amendment would apply to parolees whose continued ability to walk around outside prison is contingent upon the will of the state. Such people could opt to remain in prison if they didn't want to walk around outside unarmed.

9 posted on 08/17/2009 4:04:03 PM PDT by supercat (Barry Soetoro == Bravo Sierra)
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To: supercat

The problem is that the ban on ex-felons owning firearms is not part of their sentences at all. It applies even to those who committed their felonies before the statute was enacted. If it’s a punishment, then that runs afoul of the Ex Post Facto clause, since it increased the penalty for the crime after the crime was committed.

If it was somehow an implied part of the sentence, then I’d say it would violate the 8th Amendment, as would your hypothetical denial of the felon’s freedom of speech. The denial of a fundamental right for life even for comparatively minor felonies is certainly unusual and disproportionate to the crime.

Instead, those who enacted the statute don’t view it as a punishment at all, but rather a “reasonable restriction” of the right to keep and bear arms. If that right can be restricted to felons without that restriction being a lawful part of the felon’s sentence, then it can be restricted to anyone else the state deems unsafe or unfit to own a firearm.


10 posted on 08/17/2009 5:14:41 PM PDT by The Pack Knight (Duty, Honor, Country)
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To: The Pack Knight
The problem is that the ban on ex-felons owning firearms is not part of their sentences at all. It applies even to those who committed their felonies before the statute was enacted. If it’s a punishment, then that runs afoul of the Ex Post Facto clause, since it increased the penalty for the crime after the crime was committed.

Correct. My point was not that GCA'68 and other abominations have any validity as they are implemented. My point was rather that disarmament could legitimately be imposed as part of a person's punishment, if laws imposing such a punishment were properly written and administered.

11 posted on 08/19/2009 3:44:51 PM PDT by supercat (Barry Soetoro == Bravo Sierra)
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