Skip to comments.Gun Rights Don't Apply In Domestic Violence Cases, Appeals Court Rules
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.
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?
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.
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..."
Making laws is one thing. Enforcing them is another. I think the FedGov has pushed the people just about as far as they can.
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.
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.
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.
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.
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.
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.