rape/mental heath/gun control?

[hermannr]

I do not know what the law states in the state that the OP (or should I say the rape victim) lives in,,,but in WA RCW 9.41.047(3)(e) states:

(e) When a person's right to possess a firearm has been restored under this subsection, the court shall forward, within three judicial days after entry of the restoration order, notification that the person's right to possess a firearm has been restored to the department of licensing, the department of social and health services, and the national instant criminal background check system index, denied persons file.

As the state has removed the restriction, as if the problem had never occurred, and has so notified the NICS...there should be no problem anymore. I do know this IS the way it works in WA, and do not know why it should be any different elsewhere.

 

[MLeake]

If we do not allow it in the first place, then we do not need to monitor for abuses.

Nobody has convinced me that NICS has done anything effective. Based on prosecution rates for violations, the system has disproportionate impact on the law abiding.

 

[Evan Thomas]

According to a 2012 study by the General Accounting Office, there were "only 16 states that had legislation as of May 2012 that allows individuals to seek relief from their federal firearms prohibition."

As MLeake noted above, this is largely because Congress has failed to fund the NIAA (or the NICS as a whole) at anything like the levels approved in the bill itself: from 2009-2011, Congress appropriated 5.3% of the amount authorized for the NICS; because of this lack of funding, the incentive program for states to implement the reversal procedures outlined in the NIAA has never been put into place.

So with a few exceptions, of which Washington appears to be one, the reversal process called for by the NIAA simply doesn't exist, either because individual states never established a system for it, or, if they did, the promised federal funding to maintain such systems never materialized.

 

[Come and take it.]

Take it for what it is worth, but if the state she resides in has cleared her, than if she never plans to leave that state with a firearm or transfer that firearm out of state or does not purchase the firearm from out of state, than I don't see a problem.

Another way to look at this is that in a state that has cleared you, which also is a shall issue state. If you pass the states background check (which may include the NICS check) and pass the course, you are given the ccwp. Of which in many states you can purchase a gun using your permit without having to take a background check.

In such a situation nothing illegal is done, so long as you remain in the state and do not commute out of the state with that gun.

The feds have a lot more to worry about these days, like going door to door smashing in doors for peoples safety in the police state than to go after someone who has an arguable right to keep and bear arms.

Anyways a right that can be taken away is not a right.... it is a privelage. This is a solid fact and until gunowners in general realize that they are conditioned into believing that a right is just another word for privelage they can expect to one day be totally disarmed for one thing or another.

A lot of this also depends on the state the individual leaves in as well.

 

[JimDandy]

Take it for what it is worth,

Not much. She may not be violating a state law(or she might be if they tie their law to include not breaking federal laws) she'd still be breaking a federal law via possession of a firearm without clearing up the NICS.

If she really has had her state rights restored, she SHOULD be able to appeal and denial, provide the records to the NICS as part of her appeal, and have her name removed. Assuming she has a record of the proceedings from the State. She may be able to circumvent the automatic reporting, but still get it in her file.

But any attempt to possess a firearm without both the state and fed approving will be breaking the law to my understanding. I'm sure that's not what you meant to do, but the staff around here are REALLY twitchy about that, for good reason.

 

[Evan Thomas]

Yes, we are "twitchy" about this...

But I'm guessing that what we have here on your part, Come and take it, is just a misconception about the applicability of federal laws. While interstate commerce is the basis on which the federal government regulates firearms transactions, that doesn't mean that federal law only applies to a transaction that involves crossing a state line. If someone is a prohibited person in the eyes of the feds, it's illegal for her to possess a firearm. It doesn't matter if she never leaves the state, or how she acquires it -- even if it's borrowed for a day's shooting, it's a federal crime.

We may not like it, but that's the law... and TFL is a community of law-abiding firearms owners.

 

[Spats McGee]

Take it for what it is worth, but if the state she resides in has cleared her, than if she never plans to leave that state with a firearm or transfer that firearm out of state or does not purchase the firearm from out of state, than I don't see a problem.

Another way to look at this is that in a state that has cleared you, which also is a shall issue state. If you pass the states background check (which may include the NICS check) and pass the course, you are given the ccwp. Of which in many states you can purchase a gun using your permit without having to take a background check.

In such a situation nothing illegal is done, so long as you remain in the state and do not commute out of the state with that gun.

The feds have a lot more to worry about these days, like going door to door smashing in doors for peoples safety in the police state than to go after someone who has an arguable right to keep and bear arms.

Anyways a right that can be taken away is not a right.... it is a privelage. This is a solid fact and until gunowners in general realize that they are conditioned into believing that a right is just another word for privelage they can expect to one day be totally disarmed for one thing or another.

A lot of this also depends on the state the individual leaves in as well.

This is utterly and wholly incorrect. The applicable code section, 18 U.S.C. 922(g), states as follows:

(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; . . . .

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.

At no point does it state that a prohibited person may possess a firearm "as long as he or she does not leave the state." The odds of prosecution may be low because "the feds have better things to do," but that does not make her possession of a firearm legal.

 

[JimDandy]

Yes, we are "twitchy" about this...

Yeah, I was trying to let him down easy.

or how she acquires it

In the interests of completeness I have come across an incredibly rare and difficult to achieve scenario where is is permissible, but it requires cooperating armed criminals, or "good guys" having a REALLY bad day in need of defense, an affirmative attempt to turn in the firearm immediately as soon as the prohibited person doesn't need it anymore. It's unlikely enough I doubt it happens more than once in a forever, but it's there.

 

[Spats McGee]

In the interests of completeness I have come across an incredibly rare and difficult to achieve scenario where is is permissible, but it requires cooperating armed criminals, or "good guys" having a REALLY bad day in need of defense, an affirmative attempt to turn in the firearm immediately as soon as the prohibited person doesn't need it anymore. It's unlikely enough I doubt it happens more than once in a forever, but it's there.

Have you actually found a case in which this occurred, where the defendant was charged but acquitted? If not, I suspect that this scenario really requires a sympathetic prosecutor, a credible-sounding defendant, and a decision not to prosecute. :skeptical:

 

[JimDandy]

No, it was more of an Affirmative defense in the legislation or something. It was a while ago I saw it. Basically they had to pick up someone else's firearm during a bona fide emergency, use it, and turn it over to LEO's ASAP. I got the impression they had to basically call 911, tell the operator they needed an officer to come take possession right the heck now to prove they wanted to get rid of it.

 

[Spats McGee]

Was it federal or state legislation?

 

[JimDandy]

I don't remember. It distracted me while I was reading something else. I finished reading one thing, saw this, and then went back to what I was after in the first place....

 

[Spats McGee]

A State would be perfectly within its rights to create a "safe harbor" of that sort. It would not automatically create a safe harbor from federal law, though.

 

[Evan Thomas]

There have been such cases -- it seems to be pretty well established in Michigan, for example, that self-defense trumps a felon-in-possession charge.
For example:

In People v. Goree, the defendant presented evidence that he shot his neighbor in self-defense, and the jury found him not guilty of two assault charges. But after the trial court instructed the jury that self-defense cannot excuse a felony-firearm offense, the jury found the defendant guilty of the felony-firearm charge. Felony-firearm prohibits possession of a firearm during the commission of a crime. The Court of Appeals reversed and remanded, concluding that the trial court erred when it instructed the jury that self-defense cannot excuse a felony-firearm offense. The Court of Appeals relied on Michigan Supreme Court precedent that held that self-defense applies to the charge of being a felon in possession of a firearm – in that case the defendant took the weapon from an assailant and then shot him in self-defense. In this case, because the defendant presented evidence from which a jury could conclude – and in fact did conclude – that he acted in self-defense when he used his weapon, the trial court’s erroneous instruction was prejudicial.​

 

[Come and take it.]

So this woman (who according to federal law can no longer bear arms) will do what? when someone enters her home to attack her.

It will come down to a person to decide whether they wish to protect their life or submit to authority. The jews in the Warsaw Ghetto had to make those choices too.

Maybe we have finally come to the day when we can really say we don't need a weapon to protect our life... because the government can take care of us.

I mean if a person who has never went through due process in court before having her "privelage" removed doesn't need a firearm to protect her life, why should we need one to protect ours?

But of course none of us here do anything illegal. We all submit to authority.

 

[JimDandy]

She has had due process. She was adjudicated mentally deficient, and involuntarily committed, according to the OP. That's due process.

She MAY have an appeals process to go through.

Until she does, There are other avenues of personal defense other than firearms.

Everyone here breaks a law somewhere. Be it Jaywalking, or "pinking" a red light or whatever. We just don't advocate it to others on the forum.

 

[Come and take it.]

Will her options protect her as well or better than a gun?

 

[Spats McGee]

I actually recently had a discussion about a common law right of SD vs. felon-in-possession charges. I will try to find time to dig around later and see if I can uncover cases of that nature. However, I'm not sure People v. Goree says what you think it does, Vanya. The actual opinion can be found here, and I gave it a very quick read this morning. It appears that the charge was not "felon in possession of a firearm," but rather "possession of a firearm during the commission of a felony." MCL 750.227b. Specifically, the alleged felony of shooting his neighbor, which the jury found to be SD.

Come and take it., we started with a discussion of what this woman may legally do. You took the following position:

. . . . if the state she resides in has cleared her, than if she never plans to leave that state with a firearm or transfer that firearm out of state or does not purchase the firearm from out of state, than I don't see a problem. . . . .If you pass the states background check . . . .and pass the [cwp] course, you are given the ccwp. . . . .In such a situation nothing illegal is done, so long as you remain in the state and do not commute out of the state with that gun.

First of all, that's entirely incorrect. Second, the OP has stated that his sister was initially denied her CWP because of the commitment. (It appears that subsequent thereto, the sister had her state-level rights restored.)

The new position that you've taken appears to be one that her possession of a firearm is justifiable or defensible, based on a possibility of future harm.

So this woman (who according to federal law can no longer bear arms) will do what? when someone enters her home to attack her.

The proposition that "a prohibited person might justifiably possess a weapon, taken from an intruder, long enough to defend herself," is entirely different from the proposition that "a prohibited person may justifiably go purchase a firearm, and keep it at home or on his or her person, so long as she doesn't leave the state in which she resides."

Do you have any legal basis for the proposition that it would be legal for her to keep a firearm? Statute? Caselaw?

 

[MLeake]

Well, this really tears up the proposition that the NICS system does not interfere with rights, since due process will fix all problems.... The state which put her on the list in the first place has restored her rights, but the feds have no working mechanism for restoration.

And people think this is ok?

 

[JimDandy]

I'm still not sure she has to have the Feds "restore" her rights, so much as go through the appeals process, and have the NICS team check with her state.

As has been mentioned previously,- the State of residence applied and removed a firearms disability. The reason it's apparently not updated in the NICS database is the state not reporting to NICS. That's a problem with the State government, not the Feds.