Posted on 05/12/2011 2:37:05 PM PDT by marktwain
May someone be barred from possessing a gun simply because he has been indicted for a felony? The U.S. Attorney’s office for the Southern District of Alabama so argues. Here’s their entire argument (citations to Heller omitted):
In Heller, the Supreme Court held that the Second Amendment provides an individual with a right to possess and use a firearm for lawful purposes, such as self-defense within the home. However, the Supreme Court also made clear that “the right secured by the Second Amendment is not unlimited.” The Supreme Court emphasized that “nothing in [its] opinion should be taken to cast doubt on the longstanding prohibitions of possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.[” These] regulatory measures provided by the Court were intended as examples of constitutional restrictions to the right guaranteed under the Second Amendment, and were not intended to be an exhaustive list. Thus, like other constitutional rights, the individual right protected by the Second Amendment is not absolute, but is subject to appropriate restrictions.
Restricting the ability to possess firearms by an individual under indictment for a crime punishable by imprisonment for a term exceeding one year is a constitutional restriction of that individual’s Second Amendment right. Nothing in Heller, or any subsequent binding opinion, suggests otherwise.
I think this argument is unpersuasive: That the Second Amendment right is not unlimited doesn’t tell us what the permissible limitations are, and that the Court specifically authorized restrictions on gun possession by felons and the mentally ill doesn’t tell us how the Second Amendment should be read with regard to people who are neither felons nor mentally ill. The argument gives no explanation for why people under indictment should be analogized to felons and the mentally ill.
And indeed, an indictment is a very different matter from a conviction, or even a finding in a temporary restraining order hearing. (Lower courts have concluded that the federal ban on gun possession by people who are under temporary restraining orders is unconstitutional, partly because the orders are supposed to be based on a preponderance-of-the-evidence finding that the target has engaged in violence or threat of violence, or seems likely to engage in it.) An indictment requires no finding of guilt beyond a reasonable doubt, or even by a preponderance of the evidence. Rather, it requires only (1) a prosecutor’s seeking the indictment, and (2) the grand jury concluding that there is probable cause to believe the defendant is guilty of the charged crime, based solely on the prosecutor’s statement of the incriminating facts, without hearing any exculpatory evidence or hearing from the defendant’s side at all. That’s all it takes for an indictment; and I don’t think that can be enough to deny the defendant a constitutional right.
Maybe an indictment plus a judicial finding of dangerousness, following an adversary hearing, might suffice; I can’t speak to that, though I should note that an indictment plus a judicial finding of sufficiently great dangerousness, following an adversary hearing, does suffice for denying the defendant bail and keeping him locked up for trial. But an indictment alone shouldn’t be enough. Nor can the prohibition be saved on the grounds that the indictment is only temporary, since the defendant will usually soon be either convicted or acquitted (or have the charges dropped against him). Denying someone the tools needed for effective self-defense for several months is still a substantial burden on the right to self-defense.
This having been said, I should note that lower courts are split on the subject. Two courts have held that a mandatory no-firearms condition for pretrial release of people accused of possessing child pornography was unconstitutional, in the absence of “an independent judicial determination” of “whether such a condition [was] reasonably necessary in his case to secure the safety of the community.” See United States v. Arzberger, Nos. 08 Cr. 894 (AKH), 08 Mag. 1876 (JCF), 2008 WL 5453739, at *10–11 (S.D.N.Y. Dec. 31, 2008), and United States v. Kennedy, No. CR08-354-RAJ-JPD, 2008 WL 5517643 (W.D. Wash. Nov. 25, 2008). On the other hand, two cases applying state constitutional rights to keep and bear arms have taken a different view, with regard to laws generally banning gun possession by people under indictment for any felony. See State v. In, 18 P.3d 500, 503 (Utah Ct. App. 2000), and State v. Winkelman, 442 N.E.2d 811 (Ohio Ct. App. 1981), though the latter case , upheld a ban on gun possession by people who have been indicted, though noting that it imposes only a “temporary limitation,” with provision for relief “[s]hould the temporary limitation work an undue hardship upon the indicted party”). Splitting the difference, State v. Spiers, 79 P.3d 30 (Wash. Ct. App. 2003), struck down a ban on ownership of guns while under indictment, but partly because other laws that allowed a ban on possession of guns under those circumstances were “sufficient to protect public safety”:
It should be kept in mind that, separate from the challenged ownership provision, the State may prohibit a defendant from possessing guns. RCW 9.41.040(1)(b)(iv) (contains prohibition on possession that is unchallenged here); CrR 3.2(d)(3) (on showing that defendant poses substantial danger). Thus, in analyzing Spiers’s rights, this court examines whether it is reasonably necessary to prohibit Spiers’s gun ownership rights in addition to his gun possession rights.
But while the first cited provision covers anyone “free on bond or personal recognizance pending trial, appeal, or sentencing for a serious offense as defined in RCW 9.41.010,” Wash. Rev. Code Ann. § 9.41.040(1)(b)(iv) (West 2003) (current version at Wash. Rev. Code Ann. § 9.41.040(2)(a)(iv) (West Supp. 2009)), the second is limited to situations where there is “a showing that there exists a substantial danger that the accused will commit a violent crime or that the accused will seek to intimidate witnesses, or otherwise unlawfully interfere with the administration of justice,” Wash. Sup. Ct. Crim. R. 3.2(d)(3) (West Supp. 2009). It is therefore not clear to what extent the Spiers court approved of bans on possession by all indictees, only by those indicted for serious offenses (a fairly large category defined in Wash. Rev. Code Ann. § 9.41.010(12) (West 2003), which covers both violent offenses and some nonviolent offenses), or only by those who “pose[] substantial danger.”
Considering that you can be held in jail after an indictment, this is a no brainer.
“shall not be infringed” simply does not leave room for these mythical restrictions. Until someone crosses the line with a firearm and endangers someone elses freedom or well being then the right IS UNLIMITED.
We need to put the justice system back on the constitutional leash. The role of SCOTUS is to READ THE WORDS OF THE CONSTITUTION and apply the law based on the direct meaning of those words. If it ain't there you can't make it up.
I don’t think you’ll find many people who would believe that restricting firearms for those out on bail is unreasonable.
Even if that argument were correct (I happen to think it's absurd on its face but lets call it "arguable" just for the sake of this discussion), that doesn't mean that it's the law today. It means that should such a law be passed, it would survive constitutional review, not that you can imagine such a law into existence today and start enforcing it.
To keep someone in prison without bail generally requires a fairly strong showing that the person would either be a flight risk or would be a danger to the community.
The Second Amendment applies to any and all free persons; to deny someone's Second Amendment rights is to deny them of their liberty; there are times that may be legitimately be done on a temporary basis without a criminal conviction, but the Constitution makes clear it's not legitimate as a blanket policy.
When you’re out on bail, you aren’t free. There are many restrictions placed on you, and this is but one.
The 5th Amendment Says:
Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Note that there is a restriction against “be[ing] deprived of life, liberty, or property, without due process of law” — but if one is denied a right [that is, a liberty] solely because of indictment, then the presence an indictment could be used to bar Habeus Corpus.
Furthermore, it presupposes that the defendant is guilty and that they must, in a court of law, prove their own innocence in order to have these liberties restored.
This leads to a legal catch-22; if the government indicts you but refuses to prosecute you then they have ALL IMMUNITY FROM HABEUS CORPUS, meaning that they can ‘detain’ you indefinitely until the matter becomes a moot point: your death.
This is particularly potent when the Government would know it would lose the “case” that it would bring against you... and in this way it could prevent any of that nasty ‘precedent’ stuff from getting in it’s way.
>Considering that you can be held in jail after an indictment, this is a no brainer.
But what of Habeus Corpus?
>When you’re out on bail, you aren’t free. There are many restrictions placed on you, and this is but one.
Those restrictions are the de facto equivalent of saying you must prove your innocence [to regain your liberties].
The ONLY legitimate “restriction” for someone out on bail is that they appear in court at the appointed time. Period.
Huh? One would presume that if you're out on bail post indictment that you've been properly charged and are awaiting trial. I don't see where Habeus Corpus comes into play here.
Says you. In Texas the following are not only "legitimate" restrictions, but are common ones as well.
Surrender of passport
Surrender of firearms
Must abstain from alcohol
Confined to home
Curfew
Electronic monitor
>Huh? One would presume that if you’re out on bail post indictment that you’ve been properly charged and are awaiting trial. I don’t see where Habeus Corpus comes into play here
My bad for not explaining fully.
If the possession [or more accurately receipt] of a firearm may be restricted due an indictment contrary to the Constitution’s prohibition against firearm infringements THEN why can’t an indictment ALSO be used to restrict Habeas Corpus which the Constitution also protects?
{In this question the state of being “out on bail” is tangential/irrelevant.}
So then in Texas while you are “Out on Bail” you are little more than a prisoner in “Ultra Low Security.”
That about sums it up.
>That about sums it up.
So then you are forced to prove your innocence to regain your liberties rather than the State having to prove your guilt.
F— Texas.
Why should a perpetrator of a felony that involved no use of a lethal weapon or bodily harm or threat of same to any person be treated the same in regard to owning a firearm for personal protection as a perpetrator of a felony that actually consisted in the use of a lethal weapon and/or caused bodily harm to a person or persons?
And why should an ex-felon who has served the sentence that had been imposed by a court (i. e., paid the penalty owed society for his acts) be denied forever thereafter his/her fundamental right to possess a lethal weapon for personal protection? I just do not get it.
And you never will as it is a direct infringement.
What is occurring is a cherry-picking of which rights you are allowed to have, i.e., which ones are "allowed" to be unalienable by the nanny state.
Example... You are a hot headed little you-know-what in your early 20's and caused a commotion and bit of a panic at the movies. Lots of folks leave "immediately" and as a result a kid gets a twisted ankle. Theater management calls for medical assistance to cover their liability, paramedics see what happened, call the local cops, cops arrest hot head for incitement to riot, public endangerment, injury to a minor, etc, etc.
End result, felony.
Does the hot head get a lifetime infringement of their FIRST Amendment rights or their SECOND Amendment rights?
The crime committed was one of vocalizing a false statement as factual.
But does that prevent said hothead from making a political speech? Ten, twenty, thirty years after the fact?
It is the very same tool used to commit the original crime, right?
Or for that matter does the hot head get a lifetime infringement (banishment) for ANY of their enumerated constitutional rights OTHER than the Second?
Nooooo, not that! The ranks of slimy politicians would be decimated by such equal justice.
No no no, only the Second Amendment Right to be A-R-M-E-D is the recipient of such blatant un-American and un-Constitutional attack.
The attack (infringments under color of law) on American Citizens Second Amendment Rights in which it is clearly and specifically stated "do not infringe here" is about as an un-American act as any I can think of, be it perpetrated by a thief stealing a citizens firearms or a thief depriving an American Citizen of their Unalienable Rights "under color of law."
Both should be the ones in prison, not the poor smuck that flipped a coin in order to determine who will pay the bill at a restaurant. Or to hold a yard sale without first obtaining a business license. Or put an incorrect date or salary of a home loan application.
Or on a subject a bit closer to us all, not forking over piles of cash for ObamaCare.
If the Founding Fathers meant for there to be laws restricting an American Citizen of their right to freely and without restraint posses arms they would have clearly written it into the text of the Amendment just like they did in these...
Amendment I
Congress shall make no law
Amendment III
but in a manner to be prescribed by law.
Amendment XII
no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
Amendment IX The enumeration in the Constitution, of certain rights, shall not be construed to deny
And these...
AMENDMENT XIII
AMENDMENT XIV
AMENDMENT XV
AMENDMENT XVI
AMENDMENT XVIII
AMENDMENT XIX
AMENDMENT XXIII
AMENDMENT XXVI
The Second Amendment is absolutely clear here.
It is:
"shall not be infringed"
Not according to the rules of the common law
Not but in a manner to be prescribed by law.
Not but upon probable cause, supported by Oath or affirmation
Not without due process of law
Not Congress shall have power to enforce this
Not The Congress shall have the power to enforce, by appropriate legislation
Not unless they shall by law
Not Congress may by law
Not and shall not prevent
Not No law
Yeah, the Founding Fathers had every single opportunity for YEARS to put such a stipulation in the Second Amendment.
What do we see there?
It is a quite futile effort to convince me that what I see in front of me is not what was meant.
However, I am confident that some mealy-mouthed, smiley-faced BS artist of various occupation will be firmly convinced that I am wrong or that they can change my mind.
.
There is some slight ambiguity in a few cases, since the "People" of the Second Amendment are free persons; nothing in the Second Amendment was ever intended to apply to persons who are not free. In certain cases where it legitimate to deprive a person of his freedom, it is also appropriate and legitimate to disarm him). The question is the extent to which the state may legitimately deny a person's freedom by means other than a jury-trial criminal conviction.
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