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Colorado Courts Continue to Protect Felonsí Rights to Keep and Bear Arms
The Volokh Conspiracy ^ | 1 March, 2012 | Eugene Volokh

Posted on 03/02/2012 5:22:04 AM PST by marktwain

As I noted last Fall, Colorado courts have treated the Colorado Constitution’s right to keep and bear arms provision as substantially protecting felons’ rights to keep guns for self-defense — an approach quite different from that used by the U.S. Supreme Court in interpreting the Second Amendment, or by other states’ courts interpreting those states’ constitutions. Today’s State v. Carbajal (Colo. Ct. App. Mar. 1, 2012) reaffirms that. An excerpt:

In 1876, the new State of Colorado adopted a constitution that included a provision in its bill of rights establishing a right to keep and bear arms in defense of one’s home, person, and property:

The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called into question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons.

Colo. Const. art. II, § 13 (section 13) (emphasis added). This provision has never been amended.

During the twentieth century, the Colorado General Assembly enacted a statute making possession of a weapon by a previous offender (POWPO) unlawful. § 18-12-108(1), (2)(a), C.R.S. 2011. Although the POWPO statute does not refer to section 13, in People v. Ford, 193 Colo. 459, 462, 568 P.2d 26, 28 (1977), the supreme court held that a defendant may raise an affirmative defense to a POWPO charge under section 13 by presenting competent evidence that his or her purpose in possessing weapons was defense of home, person, and property.

Beginning in 1983, the stock jury instructions utilized by trial courts in Colorado have included an instruction following Ford:

It is an affirmative defense to the crime of [POWPO] that the defendant possessed the weapon for the purpose of defending his [home] [property] [person].

See COLJI-Crim. H:51 (2008). In recent years, however, some prosecutors have asked trial courts to alter the stock instruction by adding a requirement that the defendant’s purpose in possessing the weapons arises from a reasonable belief in a threat of imminent harm….

In this case, defendant, Joddy Leon Carbajal, appeals the judgment of conviction entered on jury verdicts finding him guilty of two POWPO counts. He argues that the trial court committed reversible error when it rejected his tender of the stock jury instruction regarding his affirmative defense to the POWPO charges and instead utilized a version provided by the prosecution, which added language concerning a reasonable belief of a threat of imminent harm. We agree, reverse the judgment of conviction, and remand for a new trial….

By virtue of section 13, a defendant presenting competent evidence that his or her purpose in possessing weapons was defense of home, person, and property raises an affirmative defense to a POWPO charge. Ford, 193 Colo. at 462, 568 P.2d at 28; People v. DeWitt, ___ P.3d ___, ___, 2011 WL 4089974, *4 (Colo. App. No. 10CA1271, Sept. 15, 2011). As long as the defendant presents some credible evidence, or a “scintilla” of evidence, in support of the affirmative defense, the jury decides whether the defendant possessed a weapon for a constitutionally protected purpose. If the defendant presents such evidence, the prosecution then has the burden of disproving the affirmative defense beyond a reasonable doubt….

The People argue that, without an “imminent threat” requirement, the POWPO statute would be unenforceable, in effect a “dead letter” allowing previous offenders to carry firearms. We are unconvinced for three reasons.

First, the verdict form asked only whether defendant possessed a weapon. There was no contention at trial that he used or carried the guns in his home.

Second, while a defendant need only present some credible evidence that his or her purpose in possessing weapons was for the defense of person, home, and property, the prosecution is not limited in the arguments it can make to disprove the affirmative defense. The arguments the prosecution made in this case could have been made under the stock jury instruction, as the jury ultimately chooses whether to believe a defendant’s assertion of purpose. Compare DeWitt, ___ P.3d at ___, 2011 WL 4089974, *6 (the defendant was entitled to the stock jury instruction where he presented some credible evidence of a constitutionally protected purpose for weapon possession), with People v. Barger, 732 P.2d 1225, 1226 (Colo. App. 1986) (the defendant was not entitled to affirmative defense instruction where he presented no evidence that public possession of weapon in a bar was based on any threat to his person, home, or property).

Third, the supreme court’s decision in Ford has been on the books for over thirty-four years. Our supreme court is the final arbiter of our state constitution, and we are bound by its precedent….

In District of Columbia v. Heller, 554 U.S. 570, 630, 635 (2008), the United States Supreme Court held that the Second Amendment to the United States Constitution protects a personal right to keep and bear arms for self-defense and “defense of hearth and home.” The Court concluded that “nothing in our opinion should be taken to cast doubt on the longstanding prohibitions of the possession of firearms by felons.” Heller, 554 U.S. at 626. Numerous federal courts have followed Heller in upholding the constitutionality of the federal counterpart to POWPO, 18 U.S.C. § 922(g)(1). See, e.g., United States v. Torres-Rosario, 658 F.3d 110, 113 n.1 (1st Cir. 2011) (collecting cases); United States v. McCane, 573 F.3d 1037, 1047 (10th Cir. 2009). [Footnote: Judge Tymkovich stated in his concurring opinion in McCane that the language in Heller regarding the constitutionality of felon in possession statutes was dictum, but also observed that “Supreme Court dicta bind[] us ‘almost as firmly as … the Court’s outright holdings.’” 573 F.3d at 1047 (quoting Surefoot LC v. Sure Foot Corp., 531 F.3d 1236, 1243 (10th Cir. 2008)). Other courts have concluded that the language was not dictum. See, e.g., United States v. Barton, 633 F.3d 168, 171 (3d Cir. 2011) (collecting cases).]



TOPICS: Constitution/Conservatism; Crime/Corruption; News/Current Events; US: Colorado
KEYWORDS: banglist; co; constitution; felon
Colorado protects the right of felons to possess arms for their own defense. Do any other states?
1 posted on 03/02/2012 5:22:13 AM PST by marktwain
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To: marktwain
I have a friend who, in his younger days, was arrested for drug possession. He foolishly accepted a plea deal where, in exchange for probation and no jail time, he plead guilty to felony possession. He now has to live with a conviction on his record and cannot possess a gun, even though he is a productive citizen and no danger to others.

My viewpoint is that if somebody is too dangerous to own a gun, then he's too dangerous to be loose on the streets.

2 posted on 03/02/2012 5:34:57 AM PST by PapaBear3625 (In a time of universal deceit, telling the truth is a revolutionary act. - George Orwell)
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To: PapaBear3625

I’ve always found it interesting that when you are convicted of a felony, you lose your ‘rights’,(if that were not so, you wouldn’t be incarcerated),but once your sentence is complete all of your rights are restored EXCEPT the ‘right to bare arms’.

Why is that?

It’s always been my belief that once you’ve done your time, ALL of your rights should be restored. Not just ‘some’ of them.

Otherwise your are still serving a ‘continued’ sentence unjustly.


3 posted on 03/02/2012 5:42:04 AM PST by Bigh4u2 (Denial is the first requirement to be a liberal)
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To: Bigh4u2

your = you’re

:(


4 posted on 03/02/2012 5:43:09 AM PST by Bigh4u2 (Denial is the first requirement to be a liberal)
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To: marktwain

This could trigger an avalanche of felons into Colorado.


5 posted on 03/02/2012 5:44:47 AM PST by chainsaw (Sarah Palin is still my first choice to save the USA. . .)
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To: marktwain

Many states have procedures whereby a felon can get his gun rights restored. Texas even goes so far as to make it automatic if the felony was committed in Texas and 5 years have passed after completion of sentence. They do limit possession to the home, however. The feds even recognize the restoration of rights and you can have your record cleared with the NICS check, allowing you to buy firearms from licensed dealers.


6 posted on 03/02/2012 5:51:15 AM PST by cbvanb
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To: chainsaw
"This could trigger an avalanche of felons into Colorado."

If an ex-felon has the intent to use a firearm for nefarious purposes, the laws of the respective state will be meaningless to him. If on the other hand, an ex-felon wants a firearm for the legitimate purpose of defending himself and his loved ones, then yes, he'll probably gravitate to CO or other state with similar rules on the books.

7 posted on 03/02/2012 5:56:54 AM PST by Joe 6-pack (Que me amat, amet et canem meum)
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To: marktwain

I’m probably jumping into a snake pit here, but my belief is that once a man has served his time (and parole, if any), all his rights should be restored.

If he is still a danger to the community, maybe the crime should require a longer sentence. For instance, sex offender registries. Wouldn’t it be better to keep real sex offenders in prison until they can be carted out feet-first, and leave 18-year old boys who have sex with their 16-year old girlfriends out of it?

Just my opinion, fire away. I will answer as I get the chance.


8 posted on 03/02/2012 6:01:39 AM PST by chesley (Eat what you want, and die like a man. Never trust anyone who hasn't been punched in the face)
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To: marktwain

Don’t like it much. I have always thought that it should be possible to have an ex-con’s RKBA restored, but it should not be easy. Still, this is FAR better than restricting gun ownership by law-abiding folks.


9 posted on 03/02/2012 6:07:50 AM PST by Little Ray (FOR the best Conservative in the Primary; AGAINST Obama in the General.)
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To: marktwain

People in Idaho can petition to have their gun right restored five years after their final release if their crime did not involve a gun.


10 posted on 03/02/2012 6:08:24 AM PST by bigheadfred
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To: Bigh4u2

“It’s always been my belief that once you’ve done your time, ALL of your rights should be restored. Not just ‘some’ of them.”

I agree with you.

In fact, I was kicked out of a jury box for stating your exact point. Left the poor couple facing gun possesion charges with a jury of gun grabbers and second amendment infringers.


11 posted on 03/02/2012 6:11:13 AM PST by TauntedTiger (Keep away from the fence!)
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To: marktwain

The right of self defense is one of the inalienable rights. The only people who should be denied this right are those who have committed violent crimes.

We have allowed government to conduct warfare against citizens in many ways. One way is that the scope of crimes that are defined as “felonies” is constantly being expanded. Long ago we have covered all crimes of violence as felonious. Now we define white collar crimes as such. In the case of the government’s complaint against Gibson Guitars, we have allowed the allegation of the violation of foreign law to be the basis for a potential felony charge here in the US.

Further, many felony-level laws in the US define a dollar amount. I believe that in US code generally if the penalty is more than $10,000, it is considered a felony. Thanks to inflation, the number of crimes which would reach this limit are slowly expanding as the Federal Reserve Corporation dilutes our currency.

All this works to bring Ayn Rand’s prediction to pass:

“There’s no way to rule innocent men. The only power 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.”


12 posted on 03/02/2012 6:11:59 AM PST by theBuckwheat
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To: theBuckwheat; marktwain
If we use your reasoning The only people who should be denied this right are those who have committed violent crimes. We have the law as it is now, government gets to decide what they consider as violent.

I think your statement should be expressed in this way. The only people who should be denied this right are those who are incarcerated.

We either have god given rights or we do not. A person in society has rights or he/she should not be in s society.

13 posted on 03/02/2012 6:26:32 AM PST by Ratman83
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To: marktwain

Many things are now felonies that shouldn’t be. Riding a bicycle in a wilderness area is one example.


14 posted on 03/02/2012 6:34:14 AM PST by poindexters brother
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To: TauntedTiger
In fact, I was kicked out of a jury box for stating your exact point. Left the poor couple facing gun possession charges with a jury of gun grabbers and second amendment infringers.

I think in that situation you're supposed to keep your mouth shut till deliberating with the other jurors after the trial. Even then all you do is vote to acquit unless a substantial number of your fellow jurors strike you as sufficiently intelligent/unsheepleized to grasp and accept a Constitutionally-based argument. IOW, people capable of forming the thought that their "official government instructions" might be erroneous, and if so, are not to be considered binding.

15 posted on 03/02/2012 6:56:32 AM PST by Still Thinking (Freedom is NOT a loophole!)
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To: poindexters brother
Many things are now felonies that shouldn’t be. Riding a bicycle in a wilderness area is one example.

You could cure this particular effect of this felony definition-creep by prohibiting possession not by any "felon" but picking a fixed date, say 1950, and only prohibiting persons convicted of an act that was considered a felony on that date. This would do a couple things, both good: It would give the law legitimacy by restricting the definition of felony to one more people could consider sane, and two, it would remove one incentive to criminalize anything and everything. How do we know this isn't one reason for the explosion in the definition of felonies in the first place?

16 posted on 03/02/2012 7:03:11 AM PST by Still Thinking (Freedom is NOT a loophole!)
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To: marktwain
Colorado protects the right of felons to possess arms for their own defense. Do any other states?

None that I'm aware of. A shame really. If you're a free man, you have the inalienable right to self defense.  If the supreme court intepreted the 2nd amendment the way they do the first, you'd be legally required to carry an M-16 all the time unless you were a concientious objector.

17 posted on 03/02/2012 7:25:06 AM PST by zeugma (Those of us who work for a living are outnumbered by those who vote for a living.)
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To: marktwain

“Do any other states?”
Texas. I think it’s 5 years after completion of sentence.


18 posted on 03/02/2012 8:02:43 AM PST by Slambat (The right to keep and bear arms. Anything one man can carry, drive or pull.)
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To: TauntedTiger; Bigh4u2

Child molester should be able to go back to running his day care? The Drug Pharmacist back to his Pharmacy, the corrupt cop back to the force after he is ‘purified’ from prison?


19 posted on 03/02/2012 8:15:11 AM PST by ansel12 (Newt Gingrich knows how to deconstruct Obama in a head to head race, and that is what it will take.)
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To: ansel12

Child molester shouldn’t be let out to begin with or at the very least his ‘sentence’ should be ‘indeterminate’.

Drug Pharmacist can have his ‘state license’ revoked. That’s not a ‘right’.

The bad cops ‘job’ is also not a ‘right’.


20 posted on 03/02/2012 8:18:53 AM PST by Bigh4u2 (Denial is the first requirement to be a liberal)
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To: Bigh4u2

So you admit that we really can restrict these guys lives, tell them what kind of work they can’t do, which businesses they can’t run, perhaps where they cannot live, who they can associate with, I would say that the MS-13 gang enforcer who we suspect of countless crimes but only convict for a 2nd degree murder, could be released from prison with some restrictions, like not being caught carrying weapons again.

I don’t want them voting either.


21 posted on 03/02/2012 8:38:27 AM PST by ansel12 (Newt Gingrich knows how to deconstruct Obama in a head to head race, and that is what it will take.)
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To: chesley

I agree. If we need to take someone’s rights away longer, then we ought to keep them in prison longer. And yes, I believe a former felon has the right to self-defense.


22 posted on 03/02/2012 8:47:35 AM PST by Mr Rogers ("they found themselves made strangers in their own country")
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To: ansel12

“So you admit that we really can restrict these guys lives, tell them what kind of work they can’t do, which businesses they can’t run, perhaps where they cannot live, who they can associate with”

It’s done all the time, whether you are a convicted ex-felon or not.

People are stopped from opening businesses all the time, either by town ‘restrictions’ or city ordnances.

Job restrictions are done all the time by either not ‘qualifying’ or ‘choice’ of the employer.

So, we either restrict the rights of everyone or of none...

“I would say that the MS-13 gang enforcer who we suspect of countless crimes but only convict for a 2nd degree murder, could be released from prison with some restrictions, like not being caught carrying weapons again.”

I never said the law was ‘fair’, I merely pointed out the possibilities ‘within’ the law.

If you want the law to be ‘fair’ then you have to apply them consistently across the board.

If you wouldn’t want your rights taken away, then why would you want others rights taken?

You may not like it, but if you’ve paid your ‘debt to society’ then all or your rights should be restored.

“I don’t want them voting either”.

Then lobby your Senator or Congressman to change the law because an EX-cons voting rights are restored once their sentence is completed.


23 posted on 03/02/2012 8:54:07 AM PST by Bigh4u2 (Denial is the first requirement to be a liberal)
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To: TauntedTiger

>>“It’s always been my belief that once you’ve done your time, ALL of your rights should be restored. Not just ‘some’ of them.”
>
>I agree with you.
>In fact, I was kicked out of a jury box for stating your exact point. Left the poor couple facing gun possesion charges with a jury of gun grabbers and second amendment infringers.

Wait, kicked off after already having been selected as a juror? Or during the selection process?


24 posted on 03/02/2012 9:15:41 AM PST by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
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To: OneWingedShark

I have always wondered why the justification of “all but one” restored rights.

civil rights are civil rights period. no some more equal than others.


25 posted on 03/02/2012 9:18:29 AM PST by longtermmemmory (VOTE! http://www.senate.gov and http://www.house.gov)
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To: Bigh4u2

I don’t know what you were calling fair or unfair, why should an MS-13 gang enforcer be allowed to pack on release, and when did this 1960s liberal agenda become part of conservatism, is this the corroding effect of the so called libertarianism?

The left (and libertarians) has been busy since I was a kid, the left has managed to make being a felon more respectable and mainstream, I’m pretty sure that felons couldn’t vote in most states when I was a kid. Personally I want voting more restricted, and more difficult.

From wiki-”As of July 2007, fourteen states, eleven of them in the South, ban anyone with a felony conviction from voting for life, even after the person has served the sentence”


26 posted on 03/02/2012 9:29:53 AM PST by ansel12 (Newt Gingrich knows how to deconstruct Obama in a head to head race, and that is what it will take.)
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To: Still Thinking

“I think in that situation you’re supposed to keep your mouth shut till deliberating with the other jurors after the trial.”

I agee. FYI - We were in voir dire and I was young.


27 posted on 03/02/2012 9:32:42 AM PST by TauntedTiger (Keep away from the fence!)
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To: Still Thinking
You could cure this particular effect of this felony definition-creep by prohibiting possession not by any "felon" but picking a fixed date, say 1950, and only prohibiting persons convicted of an act that was considered a felony on that date.

It would be easy enough to create categories of felonies, and a system for restoring rights after a certain period.

28 posted on 03/02/2012 9:35:33 AM PST by ansel12 (Newt Gingrich knows how to deconstruct Obama in a head to head race, and that is what it will take.)
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To: ansel12

That would still leave the current crowd with too much say-so, and it has to be presumed they’d use it wrongly. Therefore the only trustworthy solution is one they physically CANNOT overturn, because it’s based on things in the past.


29 posted on 03/02/2012 9:41:08 AM PST by Still Thinking (Freedom is NOT a loophole!)
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To: longtermmemmory

>I have always wondered why the justification of “all but one” restored rights.

If you’ll indulge in a little bit of “conspiracy theory” mentality, consider this: when Obamacare comes into effect it will be a felony not to have ‘qualifying’ coverage; with the economy in the slumps, the number of those who can afford insurance must needs decrease (as unemployment and time to employment go increase); add to this that the government defines what ‘qualifying’ is for terms of insurance... and you have the perfect conditions in-place for making large portions of the population into ‘felons.’

Now, you might think that people would be outraged (risking the spark of rebellion) but consider what would happen if they went the “administrative” route and, for all intents and purposes, made you a felon conditioned upon your compliance (which would stay on-file ready to be reinstated if/when you step out of line)... they could strip you of freedom and rights and make you thank them for “giving” them back.


30 posted on 03/02/2012 11:48:09 AM PST by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
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To: ansel12; TauntedTiger; Bigh4u2

>Child molester should be able to go back to running his day care? The Drug Pharmacist back to his Pharmacy, the corrupt cop back to the force after he is ‘purified’ from prison?

The short answer is: Yes.
The longer answer is that if there is no way the person can “pay their debt to society” then the only humane thing to do is execute them, as to do otherwise is to degrade their humanity either by locking them in a cage for [most of] their life OR make them second-class citizens whose freedoms are utterly at the whim of the government.


31 posted on 03/02/2012 11:53:49 AM PST by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
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To: OneWingedShark
The longer answer is that if there is no way the person can “pay their debt to society” then the only humane thing to do is execute them, as to do otherwise is to degrade their humanity either by locking them in a cage for [most of] their life OR make them second-class citizens whose freedoms are utterly at the whim of the government.

Great, that goofy nonsense that some people dream up in their heads, when the drugs wear off try again.

32 posted on 03/02/2012 11:58:27 AM PST by ansel12 (Newt Gingrich knows how to deconstruct Obama in a head to head race, and that is what it will take.)
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To: Ratman83

Great point.

I am very concerned about “government power creep”, which we have experienced in spades of late.


33 posted on 03/02/2012 12:51:26 PM PST by theBuckwheat
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To: ansel12

>Great, that goofy nonsense that some people dream up in their heads, when the drugs wear off try again.

What are you talking about?
If one cannot “pay one’s debt to society” by serving their sentence, and required to submit their rights to the government’s approval, how is that different from forcing them into a second-class of citizenship? (And how can such be considered just?)

And “life in prison” is utterly dehumanizing (read humiliating, stripping them of dignity) because it forces people to spend their life, or a significant portion thereof, in a cage.

I’m of the opinion that it would be more just to have no term of imprisonment greater than 10 years. (If the average lifespan is 80-years that’s an eighth of their life.)
In the stead of lengthy sentences we should have capital- (for rapists, murderers, etc) and corporal- (for the non-violent) punishments.


34 posted on 03/02/2012 2:15:16 PM PST by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
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To: OneWingedShark

Good luck with your everyone is to be considered 100% rehabilitated and released after short sentences, or execute them, reform.


35 posted on 03/02/2012 2:24:45 PM PST by ansel12 (Newt Gingrich knows how to deconstruct Obama in a head to head race, and that is what it will take.)
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To: ansel12

>Good luck with your everyone is to be considered 100% rehabilitated and released after short sentences, or execute them, reform.

First off, you are failing to realize that many of our laws are based not on legitimate powers, but on RESPECT MY AUTHORITY.
This is exactly what the “War on Drugs” is, especially when you consider that in order to regulate a substance the Constitution has to be amended to allow it (this WAS done with respect to alcohol, the 18th Amendment to be precise) of which no such amendment exists to legitimize the use of authority in those areas. So, even using the fundamentally flawed system of “precedence” — which fundamentally assumes that all (judicial) decisions are correct — the war on drugs is ULTIMATELY illegitimate.

Consider gun laws as well, the GCA is wholly illegitimate as it is an ex post facto law — it is by virtue of imposing the “prohibited person” status on felons who had already served their sentence — which is prohibited to both the States individually and the United States (federally). Yet there are thousands who consider it to be a good law, and base laws/court-decisions on it.

Or that the BATF’s authority comes from TAXATION, and their removal from the Treasury Department and placement under the Department of Justice is the removal of their legitimate authority.
(See: http://www.constitution.org/2ll/court/fed/us_v_rock_island.htm )

Also, consider this point which illustrates the whole. New Mexico’s Constitution says, in Art II, Sec 6: “[...] No municipality or county shall regulate, in any way, an incident of the right to keep and bear arms.” And no state law exists prohibiting firearms in courthouses, yet every municipal and county courthouse I’ve seen posts “no weapons.” This prohibition extends even to people who have not been so much as accused of a crime, and who may be arrested for not showing up: the jurors. Furthermore, the US Supreme Court has repeatedly ruled that the police have no affirmative obligation to ensure the safety of a private citizen: meaning that the presence of a police officer (or security guard) cannot be held as an assurance/guarantee of safety.

Last, a person need not be “reformed” to be released, only to have served their sentence. In terms of commerce it would be the equivalent of having paid one’s debt. (And, like commerce, these illegitimate “laws” are the equivalent of the government’s fiscal/regulatory policies: applying more and more cumbersome burdens to the people.)


36 posted on 03/02/2012 4:20:13 PM PST by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
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