Felons and Guns

My youngest daughter is a civil engineer, who is also very civil, and I hadn't heard the water glass joke, either. Sending it along to her.
 
A little drift...

so there is a law that in theory says you can have your rights restored after a felony conviction, providing that you have a lot of money to fight the system. however, a misdemeanor conviction of domestic violence without having committed violence still bans somebody for life?
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If you only knew how hard it was to get someone convicted of DV these days. Even before Lautenberg it was tough. Getting the witness to show up and give testimony is hard.

Most states have a number of pre-trial and pre-prosecution diversion programs that require very little for the offender to overcome. In Alabama it is practically impossible to get someone convicted of DV on their first offense unless they are committed to fighting the system.
 
In Georgia, a law went into effect on July 2014 that allows felons to posses guns inside of their homes for self defense but does not allow them to carry outside of their home. This is a fair and reasonable law.
 
Kind of begs the question how do they get the guns to the house? They can't carry them there. If someone brings them one then they are transferring a gun to a felon. I guess if they owned one beforehand it might work.
 
Yeah, probably gives the ATF fits but they claim they've got better things to do than chasing down or prosecuting felons for gun violations.
 
I do find that the federal government refusing to recognize the fact that a state has restored someone's right in rather dark light. :mad: I'm sure the state that do restore rights know a lot better whether an individual is a danger or not. I also think that if a state does restore a felon's rights, they should notify the FBI/NCIS people of that fact, that is if they don't already.
Paul B.
 
RangerHAAF said:
In Georgia, a law went into effect on July 2014 that allows felons to posses guns inside of their homes for self defense but does not allow them to carry outside of their home. This is a fair and reasonable law.
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First, cite the law. We should all have a chance to verify that it is what you say it is.

Second, it's largely irrelevant because under federal law a prohibited person can't possess a gun or ammunition at all. So even if the felon isn't violating Georgia law, he is violating federal law. Thus he gets arrested by federal agents, rather than state or local LEOs, is tried in federal court instead of state court, and goes to federal prison instead of state prison.

Note that under the Constitution federal law supersedes state law (Article VI, Clause 2):
...This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding....
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Let's look at federal law (18 USC 922(g)), emphasis added):
(g) It shall be unlawful for any person—

(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;

(2) who is a fugitive from justice;

(3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));

(4) who has been adjudicated as a mental defective or who has been committed to a mental institution;

(5) who, being an alien—

(A) is illegally or unlawfully in the United States; or

(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(26)));​

(6) who has been discharged from the Armed Forces under dishonorable conditions;

(7) who, having been a citizen of the United States, has renounced his citizenship;

(8) who is subject to a court order that—

(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;

(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and

(C)

(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or

(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or
​
(9) who has been convicted in any court of a misdemeanor crime of domestic violence,
​
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
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Let's see what some courts have said:

  1. In U.S. v. Chesney, 86 F.3d 564 (C.A.6 (Tenn.), 1996), the Sixth Circuit affirmed, against a Commerce Clause challenge Chesney's conviction for being a felon in possession of a firearm.

    In rejecting Chesney's assertion that the 18 USC 922(g) is unconstitutional, the court of appeal noted, at 568 -- 569:
    ...another panel of this court has held § 922(g)(1) to be constitutional. In United States v. Turner, 77 F.3d 887 (6th Cir.1996), a unanimous panel held that " § 922(g)(1) represents a valid exercise of legislative power under the Commerce Clause." Id. at 889. As this court wrote in Turner, "Every court of appeals that has been faced with this question since Lopez has held that the jurisdictional element of § 922(g) provides the requisite nexus with interstate commerce ....
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    In rejecting Chesney's assertion that the statute can not be applied in his case, the court of appeal noted, at 570 -- 571:
    ...Chesney, unlike the defendant in Turner, also challenges § 922(g)(1) as applied to him by arguing that his conviction is unconstitutional because the government failed to prove any "substantial nexus between the crime charged and interstate commerce." Chesney stipulated that the gun had moved in interstate commerce, and such a stipulation is sufficient evidence to support Chesney's conviction pursuant to § 922(g)(1). See United States v. Lee, 72 F.3d 55, 58 (7th Cir.1995) (stipulation that gun was in or affecting commerce sufficient evidence to support a conviction under § 922(g)(1)). ...

    The Supreme Court has held that proof that a firearm moved in interstate commerce at any time is sufficient to meet the government's burden of proving the "in commerce or affecting commerce" element of § 1202(a), the predecessor to § 922(g)(1). Scarborough v. United States, 431 U.S. 563, 566-67, 97 S.Ct. 1963, 1964-65, 52 L.Ed.2d 582 (1977). Although Scarborough was decided as a matter of statutory construction, the Court noted that Congress knew how to assert " 'its full Commerce Clause power so as to cover all activity substantially affecting interstate commerce,' " and that Congress intended to exercise the full extent of its Commerce Clause power when enacting § 1202(a). Id. at 571-72, 97 S.Ct. at 1967-68 ...

    All of the courts of appeals to consider the issue since Lopez have concluded that § 922(g)(1), as construed to require only the minimum nexus to commerce approved in Scarborough, is constitutional. See, e.g., McAllister, 77 F.3d at 390; Sorrentino, 72 F.3d at 296; Shelton, 66 F.3d at 992; Hanna, 55 F.3d at 1462 n. 2.,...
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  2. In U.S. v. Singletary, 268 F.3d 196 (3rd Cir., 2001), the Third Circuit affirmed a conviction for being a felon in possession against an attack on the constitutionality of 922(g), at 197:
    ...Singletary contends that the felon-in-possession statute is unconstitutional because the conduct it proscribes -- the intrastate possession of a firearm -- does not have a substantial effect upon interstate commerce, and thus does not constitute a valid exercise of Congress' authority under the Commerce Clause. Specifically,...
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    In rejected Singletary's assertion, the court of appeal noted, at 200:
    ...the Court in Scarborough v. United States had the opportunity to address squarely "whether proof that the possessed firearm previously traveled in interstate commerce is sufficient to satisfy the statutorily required nexus between the possession of a firearm by a convicted felon and commerce." 431 U.S. 563, 564 (1977). The Court accepted the Government's contention that it only need prove that "the firearm possessed by the convicted felon traveled at some time in interstate commerce." Id. at 568. Thus, the Scarborough Court established the proposition that the transport of a weapon in interstate commerce, however remote in the distant past, gives its present intrastate possession a sufficient nexus to interstate commerce to fall within the ambit of the statute. Because S 1202(a) is the predecessor to the current felon-in-possession statute, this statutory construction applies equally to S 922(g)(1)....
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  3. In United States v. Hoyle, 697 F.3d 1158 (10th Cir., 2012), the Tenth Circuit affirmed Hoyle's conviction for being a felon in possession. In doing so the court of appeal noted, at 1165:
    ... “Section 922(g) requires that the firearm be possessed ‘in or affecting commerce.’” United States v. Williams, 403 F.3d 1188, 1195 (10th Cir.2005) (quoting 18 U.S.C. § 922(g)). The Supreme Court has affirmed the Fourth Circuit's holding that: “[T]he interstate commerce nexus requirement of the possession offense was satisfied by proof that the firearm [defendant] possessed had previously traveled in interstate commerce.” Scarborough v. United States, 431 U.S. 563, 566, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977)...
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  4. Let's see also what courts have said about what constitutes unlawful possession:

    • See U.S. v. Barron-Rivera, 922 F.2d 549 (C.A.9 (Wash.), 1991) in which Barron-Rivera's conviction for being an alien in possession of a firearm was affirmed without him even having had to touch a gun. Barron-Rivera's claimed reversible error in that the government failed to prove the necessary intent.

      The court of appeal noted, at 551:
      ...Barron-Rivera argued that the gun was in his wife's residence at the time he re-entered the United States and moved back into that residence. Accepting that contention, the district court, nonetheless, found that Barron-Rivera's possession of the firearm was voluntary because he permitted the firearm to remain in the house after he acquired knowledge of its presence....
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      In affirming the conviction, the court of appeal found, at 551 -- 552:
      ...In other words, by continuing to reside in the apartment in which the gun was located, he voluntarily and knowingly possessed the gun...
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    • See, also, United States v. Huet, 665 F.3d 588 (3rd Cir., 2012), in which the gun a prohibited person was charged with illegally possessing was not secured against the prohibited person's access, supporting both the prohibited person's conviction for unlawful possession of a gun and the indictment of his cohabitant. From the opinion (at pg. 593, emphasis added):
      ...on June 6, 2008, a valid search warrant (the “search warrant”) was executed on the couple‟s Clarion County home. Agents seized an SKS, Interordnance M59/66 rifle (“SKS rifle”) from an upstairs bedroom.

      Although Huet is legally permitted to possess a firearm, Hall was convicted in 1999 of possessing an unregistered firearm, in violation of 26 U.S.C. § 5861(d), and is therefore prohibited from owning or possessing a firearm. After being informed of the raid, Huet allegedly told investigators that the guns in the house belonged to her and that it was not illegal for her to purchase weapons. Despite Huet‟s assertions that she alone possessed the SKS rifle, the Government sought and obtained an indictment charging Hall with illegal possession of the weapon, and Huet with aiding and abetting Hall‟s possession....
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      So the gun Hall, a convicted felon, was indicted for unlawfully possessing, belonged to his cohabitant, Huet. It appears to have been undisputed that Huet could lawfully possess firearms. Nonetheless, she was indicted for aiding and abetting Hall's unlawful possession of gun because Huet's gun wasn't secured against access by Hall.

Old Bill Dibble said:
Kind of begs the question how do they get the guns to the house? They can't carry them there. If someone brings them one then they are transferring a gun to a felon. I guess if they owned one beforehand it might work.
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First, someone who provides a gun to someone knowing or having reasonable cause to believe he is a prohibited person commits the federal crime of aiding and abetting the prohibited person's violation of federal law. See 18 USC 2:
(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.

(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.
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Second, even if the prohibited person possessed the gun prior to becoming a prohibited person, his continued possession thereafter would be a federal felony.

RangerHAAF said:
...probably gives the ATF fits but they claim they've got better things to do than chasing down or prosecuting felons for gun violations....
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Where do you get the idea that the federal government doesn't prosecute prohibited persons for unlawful possession of a gun. The federal government does successfully prosecute such crimes. See the cases cited by me above.

Paul B said:
I do find that the federal government refusing to recognize the fact that a state has restored someone's right in rather dark light....
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What makes you think that the federal government doesn't recognize a state restoration of rights? That is, in fact, not true. See 18 USC 921(a)(20) as quoted my me in post 9.

Paul B said:
...I also think that if a state does restore a felon's rights, they should notify the FBI/NCIS people of that fact, that is if they don't already. ....
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States are supposed to do so. It's my understanding that some States have been criticized for not being diligent about doing so.
 
Doesn't the BATFE classify cap & ball and flintlocks as non-firearms? If so, it stands to reason that a felon (preferably one who has regained his or her civil rights) could possess a Ruger Old Army or an Uberti Colt Civil War replica.

Is that correct, or would I be wrong?
 
It's not "irrelevant" if they won't be prosecuted in state court. Your assertion presumes state prosecutors are going to refer violators to federal prosecutors; Outside of NYC or California I've never heard of or seen it happen except the most public and egregious cases. Not only can they posses them but they can claim SYG when killing an attacker. Georgia also has a law that was quietly passed authorizing licensed gun owners to carry onto and inside public schools.http://politics.blog.ajc.com/2014/0...ld-let-felons-claim-stand-your-ground-status/Looking at things from California and thinking they apply universally in a practical legal sense is short sighted.

So you see, in Georgia everybody has legal access to guns. The thing that makes this possible is that it is ILLEGAL for a cop to stop someone openly carrying a weapon(any weapon) in public to ID them, to do so authorizes a lawsuit in state court where a $25,000 dollar fine will be assessed against the controlling police department, that was in the bill also.

So, that's how we roll in Georgia where the BATF HQ is also located.
 
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Armybrat said:
Doesn't the BATFE classify cap & ball and flintlocks as non-firearms? If so, it stands to reason that a felon (preferably one who has regained his or her civil rights) could possess a Ruger Old Army or an Uberti Colt Civil War replica.

Is that correct, or would I be wrong?
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It's a gross oversimplification for the purposes of this thread. Antique forearms as defined in the Gun Control Act are not subject to various provisions of federal law relating to the possession, interstate transfer, shipment and transfer by an FFL of firearms.

But antique firearms might still be classified under various state laws as firearms or dangerous weapons for the purposes of state laws relating to possession, carrying, transportation or use of firearms or dangerous weapons. And for someone who has been convicted of a crime, his rights with respect to the possession, carrying, transportation or use of firearms or dangerous weapons, including antique firearms, could be subject to terms of his probation of parole.

So there is no simple answer.
 
RangerHAAF said:
It's not "irrelevant" if they won't be prosecuted in state court.....
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It is irrelevant because they would still be violating federal law and subject to up to 5 years in federal prison.

RangerHAAF said:
...Your assertion presumes state prosecutors are going to refer violators to federal prosecutors; Outside of NYC or California I've never heard of or seen it happen except the most public and egregious cases....
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I'm presuming nothing. There are any number of ways a person could wind up being prosecuted by the federal government for a federal crime.

Furthermore, what yo might have heard or seen is also irrelevant. I'm sure a great many things have happened in the world without your having heard of, or seen, them.

The fact remains that a felon in possession of a firearm is committing a serious federal crime no matter what Georgia law is and is subject to federal prosecution no matter how federal authorities find out about it.

RangerHAAF said:
http://politics.blog.ajc.com/2014/0...ld-let-felons-claim-stand-your-ground-status/
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That link is not a citation to the law. It is an article about a bill being considered. Nothing in the article says anything about the bill having actually been enacted.
 
I'm thru citing; We carry our guns whenever and however the hell we want to. I openly carry my AK-47 down to the Atlanta airport riding public transportation with no problems; A lot of side looks from both cops and civilians but no words exchanged.

The law went into effect on July 1st 2014. You may have heard it referred to as the "guns everywhere" law, that is an accurate description.
 
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RangerHAAF said:
I'm thru citing;...
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Then we can not and will not accept any assertion you make regarding what the law is. Clearly you don't understand the law or how things work in the legal system. Your claims without the backup of appropriate citation to legal authority are worthless and need to be disregarded.

RangerHAAF said:
...The law went into effect on July 1st 2015.
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Then prove it and show us the actual law as adopted.
 
I don't get caught up in the details of federal law and could care less about it since it doesn't apply to me unless I'm buying a gun from an FFL, which I haven't done in a long time since I got my own FFL. I'm only concerned with the gendarmes and court officers of my state. Attached is a video of our governor signing the bill into law. and my mistake, it was signed in April not May. https://www.youtube.com/watch?v=0gPzS4Sqlz8
 
RangerHAAF said:
don't get caught up in the details of federal law and could care less about it since it doesn't apply to me....
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Of course federal law applies to you. It applies to everyone present anywhere in the United States.

RangerHAAF said:
...I got my own FFL....
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So federal law also applies to you as a federal firearms licensee.

RangerHAAF said:
...I'm only concerned with the gendarmes and court officers of my state....
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Which only means that as a result of your ignorance you might very well be creating federal law problems for yourself. Be that as it may, it's your problem and not ours.

However, others reading this thread should understand that you don't know what you're talking about. Folks who might be foolish enough to pay any attention to your opinions on legal matters might wind up getting themselves into a lot of trouble.

RangerHAAF said:
....Attached is a video of our governor signing the bill into law. and my mistake, it was signed in April not May. https://www.youtube.com/watch?v=0gPzS4Sqlz8
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Phooey!

It shows the governor signing a bill into law, but it doesn't tell us exactly what that law say. Certainly we can't rely on you to give us accurate information.
 
Well I really don't care about your opinion relative to our laws in Georgia. You can cite yourself for all I and the world cares and bend your knee to whatever federal law or agency that you want to, that's your business and your prerogative.

I haven't encouraged or discouraged anyone to violate federal law, I've merely explained how it is or is not applied practically as I've seen it done here; You apparently have a different perspective living in California, which is typical of a lot of people from your state and Virginia, interjecting yourselves nationally into state gun control issues outside of your region and then scratching your collective heads and throwing tantrums in confusion when nobody votes your way. Well that's the practical everyday world we live and it's gonna be a very long time, if ever that the ATF and the rest of it's sister agencies can ever cover and more importantly "enforce" the federal law that you seem to have such a slavish devotion to.
 
RangerHAAF said:
Well I really don't care about your opinion relative to our laws in Georgia. You can cite yourself for all I and the world cares and bend your knee to whatever federal law or agency that you want to,...
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Of course you don't care. You are apparently determined to remain ignorant about what the law is and how it works. That's your prerogative, and the consequences of your intransigence will be yours alone.

The point of my comments, as I've mentioned, is to attempt to ensure that others who might read this thread don't take you seriously. You simply don't know what you are talking about.

RangerHAAF said:
...I've merely explained how it is or is not applied practically as I've seen it done here....
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What one sees, or thinks he sees going on is a lousy basis for an opinion about legal matters.

RangerHAAF said:
...You apparently have a different perspective living in California....
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No, I have a different perspective because I'm a lawyer. I am educated in the law and successfully practiced law for 30+ years before I retired.

RangerHAAF said:
...interjecting yourselves nationally into state gun control issues outside of your region and then scratching your collective heads and throwing tantrums in confusion when nobody votes your way.....
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That is, of course, preposterous.
 
I'm thru citing
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Well, that's unfortunate. Allow me to pick up the ball. The 2014 bill you seem to be referencing is HB 60 [pdf]. There is a poorly-worded provision that might allow exemption from prosecution if a felon picks up a gun to use in self-defense. However, it hasn't been tested in the courts, and it in no way applies to routine ownership.

The law went into effect on July 1st 2014. You may have heard it referred to as the "guns everywhere" law, that is an accurate description.
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No, it isn't, and it plays right into the playbook the opposition used when they called it that. College campuses and secured government buildings are still off-limits.

We carry our guns whenever and however the hell we want to. I openly carry my AK-47 down to the Atlanta airport riding public transportation with no problems; A lot of side looks from both cops and civilians but no words exchanged.
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The "whenever and however" part is untrue, and you need to stop advising people that it's the law.
 
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