Posted on 04/05/2011 5:21:54 AM PDT by marktwain
CLEVELAND, Ohio -- A Cuyahoga County judge's decision to allow a convicted drug criminal to own firearms for self-defense could pave the way for thousands of people with minor drug convictions to own guns.
At issue is whether an Ohio law prohibiting all drug criminals, among others, from owning guns is unconstitutional when applied to someone convicted of a misdemeanor drug charge.
Laws across the nation long have prohibited convicted criminals from owning firearms. In Ohio, the law denies gun ownership rights to all felons and fugitives, the mentally ill, chronic alcoholics and drug offenders of any kind.
In December, however, Cuyahoga County Common Pleas Judge Brian Corrigan interpreted two recent U.S. Supreme Court decisions to mean that state laws restricting gun rights are intended for those convicted of felonies -- not misdemeanors. Generally, misdemeanor charges involve possession of small amounts of drugs.
Corrigan dismissed a weapons charge against Marinko Tomas, a Cleveland man who pleaded guilty in 1991 to attempted drug trafficking, a misdemeanor for which he was ordered to pay a $150 fine. Prosecutors contended that the state gun prohibition applied to Tomas because of the drug conviction.
County Prosecutor Bill Mason filed an appeal last month in the 8th Ohio District Court of Appeals, arguing that Corrigan's interpretation of the Supreme Court decisions is off-base. The court reserved the right to bear arms for law-abiding citizens, the appeal says. Anyone convicted of a drug crime, regardless of the severity, has demonstrated an inability to follow the law, the appeal claimed.
The Brady Center to Prevent Gun Violence, which filed a brief in support of Mason's appeal, says Corrigan's decision, if not overturned, sets a dangerous precedent for the rest of the country.
Jon Lowy, director of legal action for the center, said in a recent interview that more than 250 challenges to firearms restrictions have been filed in state courts nationwide since the Supreme Court rulings in 2008 and last summer. But nearly every one of those appeals has been rejected, he said, and Corrigan might be the first judge to declare that a criminal, albeit one convicted of a misdemeanor, has a constitutional right to own guns.
Tomas, who runs a carpet installation business on St. Clair Avenue in Cleveland, has had no other convictions since the drug charge 20 years ago. In 2005, a confidential informant, whom Tomas now believes to be a disgruntled former employee, informed law enforcement officials that Tomas kept several large guns and many rounds of ammunition at the store.
Agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives searched the business, which was connected to Tomas' home, and discovered a thousand rounds of ammunition, two rifles, a handgun and what appeared to be a small bag of marijuana.
Tomas was charged with having weapons while under disability, a third-degree felony punishable by up to five years in prison. He was not charged with an additional drug offense.
The case dragged on for several years, during which the court held an evidentiary hearing to determine whether Tomas had kept the guns for self-defense in a dangerous neighborhood.
Tomas' girlfriend, who lived with him and their son in the adjoining apartment, testified that she often feared for her life while tending the store in Tomas' absence. Police officers who patrolled the area recounted the neighborhood's reputation for heavy gang activity and violence.
Tomas' attorney, John Parker, argued that his client's decades-old drug offense not only was a misdemeanor but also could be classified as a petty crime under Ohio law.
"It must be emphasized that the disability in question is a misdemeanor marijuana conviction from 1991 that resulted in a sanction of a fine only," Parker contended during the 2007 hearing. "Mr. Tomas is not a convicted felon."
Prosecutors shot back, arguing that Tomas could have applied to have his record sealed, which might have restored his ability to own guns, but he did not.
The weapons found in Tomas' home were not the kind typically used for self-defense, prosecutors argued. They were military-style assault rifles -- one with a functioning bayonet -- as well as clips storing 63 rounds of ammunition and a handgun with a scope.
"The rifles themselves are capable of cutting a tree down," Assistant County Prosecutor Bill Kaczmarek said during the hearing. "They're capable of stopping a bus. They're weapons that are used on the fields of war."
Drugs and guns are a dangerous combination, prosecutors said. So the Second Amendment right to bear arms should apply to law-abiding citizens only -- not drug criminals.
"It's not an absolute right," Kaczmarek argued. "It's a right that can be controlled by the state for the overall health, safety, morals and general well-being of the community."
But that assertion was challenged in 2008 when the U.S. Supreme Court, in a 5-4 decision, struck down a Washington, D.C., law that banned residents from keeping handguns in their home.
The court ruled in District of Columbia v. Heller (PDF) that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense -- the purpose claimed by Tomas.
Until that landmark decision, the U.S. Justice Department officially defined the right to bear arms as a "collective" right, protecting only the state's authority to maintain formal organized militias, rather than an individual's right to own guns for hunting or self-defense.
Despite the high court's new interpretation, however, the Second Amendment still applied only to federal efforts to regulate firearms, leaving states to control guns as they saw fit. It was unclear how the ruling would affect restrictive gun laws in the states, given that Washington, D.C., is a federal enclave.
Then residents in Chicago and the suburb of Oak Park challenged local laws that banned handgun ownership by prohibiting the most common types of guns private citizens use for protection.
In June, the U.S. Supreme Court, in another 5-4 decision, sided with the residents in McDonald v. Chicago and ruled that an individual's fundamental right to bear arms cannot be violated by state or local governments. The rulings in tandem altered the legal landscape for Tomas, whose case continued to linger on Corrigan's docket.
Both Supreme Court decisions vaguely acknowledged that states may prohibit guns in places such as schools or government buildings and may take reasonable measures to keep weapons out of the hands of "felons and the mentally ill." But the court did not specifically mention misdemeanants or drug abusers.
Corrigan, in his opinion, ruled that Tomas' decades-old misdemeanor drug conviction does not negate his right to own guns for the purpose of self-defense and that the state has no compelling reason to strip him of that right.
Prosecutors disagree and say Corrigan has made a grave error that must be reversed.
"Courts, including the Ohio Supreme Court, have continued to recognize that drug trafficking and firearms go hand in hand," Assistant Prosecutor Thorin Freeman said in a recent interview. "When this search warrant was executed, Tomas had a small bag of dope on him. He lives in an area that he says is dangerous because of drugs and violence, yet he's part of the problem."
Freeman said Tomas' conviction for attempted drug trafficking was a misdemeanor only because prosecutors cut him slack and offered a lenient plea for what should have been a felony charge.
Larry Pratt, executive director of the gun-rights advocacy group Gun Owners of America, said prosecutors have lost sight of what should be their main goal -- keeping truly dangerous criminals in prison and out of society, where they will manage to find guns regardless of state laws.
Tomas, on the other hand, is unlikely to be a threat to public safety 20 years after his conviction, Pratt said.
"To have a blanket prohibition on an entire class of people who are not a danger to society is wrong," he said. "This case underscores how thoughtless such laws are and helps us recognize what we're doing wrong in our criminal justice system."
Somebody spent too much time at Hyperbole School.
I agree, something that is increasing rare amongst our judiciary.
Personally, I believe that once a person has fully finished his sentence he should have all his rights restored. It’s not like laws banning convicted felons from owning guns ever stopped a felon from getting one.
So is a chainsaw but he can pick that tool up at any hardware store without anyone batting an eye. He doesn't even have an amendment to the constitution preserving his right to do so. What part of "The right of the people to keep and bear arms shall not be infringed" do you not understand?
Face, that was directed at the Ass. County Persecutor, not you.
OMG, a "functioning bayonet"!
Heck, I have a functioning steak knife.
Not a huge difference.
Yeah. I have to keep them under lock and key, less they start clear cutting on my property. Especially my Russkie SKS with a functioning bayonet...
Prosecutors need to get their heads out of the collective government rectum.
Funny how the Left works hard to have felons voting rights automatically restored but felon gun rights...not so much. Makes sense since a person with lawless tendencies will gravitate towards the lawless party. (Here in Richmond we have many felons who get arrested again in possession of a firearm...go figure.)
“”Well he is a danger to society!”
I definitely disagree with this.
Once his sentence has been fulfilled, he or she should have ALL rights returned. Not ‘some’.
If he/she is a danger to society, then why would they be released? Obviously, they aren’t, unless they commit another crime. In which case they will have another ‘punishment’ to fulfill.
So each and every person that has ever broken the speed limit has "demonstrated an inability to follow traffic laws"?
B...b...but I thought liberals LIKED drugs?
Rectum? Hell, damn near killed him!
Don’t get me wrong, I was saying that phrase, “He is a danger to society,” is what other people state as an excuse to limit one’s rights! You and I are in 100% agreement: once they have paid their debt to society, they should have ALL of their rights returned to them - PERIOD!!
It is PC crap that got us into these situations in the first place. Pedophiles are a PERFECT example! Used to, if someone was a pedophile, they were required to have MEDICAL treatment to help them control and hopefully correct their MENTAL DISEASE! Instead, we now simply mark all people who were EVER convicted of a “pedophile offense” (which could be as simple as a 19 year sleeping with his 16 girlfriend) as a LIFE LONG REGISTERED SEX OFFENDER! Should they be having sex out of wedlock, at such a young age? NO! Should what they did be a crime for which the 19y/o must REGISTER as a sex offender for the entirety of his life? ABSOLUTELY NOT!!!!!
If we would simply use the tools to treat people for their ailments instead of being so PC and/or politicizing everything, we would be MUCH better off!
Yep. And it’s only going to get worse.
“Georgia Supreme Court Says It’s Okay To Put Non-Sex Offenders On The Registered Sex Offender List”
http://www.techdirt.com/articles/20100317/2252148611.shtml
There are even articles stating that some legislatures want to put people on Sex Offender lists for urinating in public?
Well, it's only fair if I do. I mean, I feel pretty violated by the "standards", so I should get to do some violating too.
I think I read here on FR once, that Alinsky wrote that the best way to break down society is to make a criminal out of everyone, then you will second guess when you should "judge" others! I am definitely paraphrasing (and from really bad memory!!)!
Wouldn't be surprised if Alinsky did say that, or you might be thinking of this scene from Atlas Shrugged, where Dr. Ferris lets Hank Reardon in on the big gubmint scam they had going:
"Did you really think we want those laws observed?" said Dr. Ferris. "We want them to be broken. You'd better get it straight that it's not a bunch of boy scouts you're up against... We're after power and we mean it... There's no way to rule innocent men.The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What's there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced or objectively interpreted – and you create a nation of law-breakers – and then you cash in on guilt.
Now that's the system, Mr. Reardon, that's the game, and once you understand it, you'll be much easier to deal with."
Some Freeper even has it as the beginning of his profile page.
Personally, I believe that once a person has fully finished his sentence he should have all his rights restored.
Charles Manson and Ted the uni bomber agree.
Good thing they aren’t allowed those rights because naturally when Manson is released he will obey those laws.
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