Supreme Court Agrees on Taking Guns from Domestic Abusers

The lower courts have already been using just the word "dangerous", instead of "dangerous AND unusual" from Heller to justify their bans. More recently "commonly owned" has been perverted to be "commonly used" in documented self defense shootings. The 7th 3 judge panel upheld the Illinois AWB 2-1 stating that military rifles like the AR15 are not protected under the Second Amendment. All very frustrating.
 
What I took from the ruling is that there are, in fact, cases in which the Government can take a person's 2A rights (or any other rights) away so long as there is due process.
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This is our system. Always has been. When we (the system acting in our name) locks up ANYONE for ANYTHING, their rights are being "violated" from the point of view of the individual, but not the govt. As long as due process is followed, its legal, and inside the rules. And, its only wrong/illegal/unconstitutional when due process is NOT followed or the opportunity for such not given.

This is my major issue with the various "red flag" laws, their "due process" is almost completely opposite the due process for other laws and charges.

based solely on an accusation, guns are seized, the owner is not required to be notified until after the fact, and his "day in court" can be up to a calendar YEAR later.

With a restraining order, you are informed there will be a hearing BEFORE the order is issued, so that you can attend and present your side of the story as a defense. Quite different from the red flag laws.

Next point, a restraining order is legally a temporary thing. And like involuntary commitment to a mental facility for 72 hr observation, does not carry the same weight as conviction under the law, or adjudication by a court of mental incompetence.

As to the lower courts not following the direction of the Supreme Court, this is not something new, and not involving only firearms issues.

The Supreme Court generally does not have a "police function". They issue rulings, normally on very narrow legal matters, but they do not visit every lower court decision to ensure those rulings are complied with. IF a case where a lower court's non compliance with SCOTUS rulings brings a case before the high court, THEN they rule on it.

I disagree, it was about the speed or there would be no reason for it hence, the principal is the speed in which it fires .
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You are, of course, free to disagree, but it has never been about the rate the weapoin fires, that is NOT in the law, it is only endlessly coming out of the mouths of talking heads seeking an emotional response on a technical subject. Reporters, talkig heads, gun control activists, and politicians are talking about the rate of fire (and generally incorrectly) but that is NOT in the law. They want you to think it is, but it is not.

Don't drink their poisoned Kool-Aid, even if it seems to smell nice.
 
See , you weren’t thinking of the principal Of the law . Which makes me think you’re not understanding my point at all when he writes they have to look at the principal along with Text and tradition . You know what they say …. if it walks like a duck? Lol

I know it wasn’t the actual text or the legal definition . Are you saying that is not even the principal of the law? Why are they regulating machine guns? Maybe we should start there . Thought experiment , If it’s not about speed . If full auto firarms fired slower than semi automatics , would full auto firearm still have been regulated ? I remember long ago hearing that machine gun regulations came about because of the Saint Valentine’s Day massacre .
 
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Do you have the impression that the "antis" in NY or CA worry much about the wording of Sup Ct decisions when they pass ever more aggressive restrictions? I don't.
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Im clearly not making my point very well . Again you point out what Im trying to say . No I have no delusions, they will stop misrepresenting the facts. That has been my point , this ruling could’ve help shut down those types of arguments but instead, it seems to have left the door open to even more . .

On a side note, I’ve been doing dictation on my phone for these post and for some reason it keeps capitalizing words in the middle of sentences . I corrected this post, but if you see that in my post, I’m gonna stop correcting it because I’m tired of going back and correcting all these capital words . I don’t mean anything by If you see it .
 
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zukiphile said:
apply[ing] faithfully the
balance struck by the founding generation to modern circumstances.
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That's a word salad if I ever saw a word salad.

How can there be a "balance" between something that was created over 200 years ago and something not written or conceived until 200+ years later? The intent of the Constitution, and especially the Bill of Rights, is clear to anyone who has the intellectual honesty to read it objectively. There is no need to "balance" the Constitution against anything.
 
Thought experiment , If it’s not about speed . If full auto firarms fired slower than semi automatics , would full auto firearm still have been regulated ?
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Yes. Because the law defines machine gun by the way it works, NOT the speed it works at.

And, such a beast does (or did) exist. I'm sorry I don't remember the name, but I do remember seeing video about it several years ago. I believe it was made in Russia. Select fire 12ga, looks like an enlarged M16. In full auto mode, the gun's cyclic rate is retarded, down to very low for controllability.

People were actually able to fire rounds faster in semi auto mode.

That gun would not be legal in the US for private citizens (not licensed to do business dealing machine guns) to own, thanks to the Hughes Amendment.

The Hughes amendment "froze" the civilian machine gun registry in 1986, and no gun not in the registry at that time is allowed to be owned by the public. Also no new guns are allowed to be added to the registry.

The select fire shotgun I mentioned would only be allowed to be sold to law enforcement agencies, because it is legally a machine gun, and didn't exist at the time the registry was frozen.

Kind of like the select fire Glock pistol. Machine gun dealers can have "samples" but only LE organizations can buy them, because the gun was developed after 1986.

So, to sum up, there is (at least) one full auto firearm, made intentionally to fire slower in full auto than it can be fired in semi auto, and in the US it would be classified as a machine gun and regulated as such.
 
apply[ing] faithfully the
balance struck by the founding generation to modern circumstances.
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Aguila Blanca said:
How can there be a "balance" between something that was created over 200 years ago and something not written or conceived until 200+ years later?
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I believe the balance to which that refers is the balance between the right inherent in being an englishman in the 18th century and how that population dealt with threats of violence.* There was the sense that every land owning english man has an inherent right to speak, worship and be armed as he sees fit, a sense that arose from those same englishmen having those rights abused by the state. Those rights might not also be held by religious minorities within a state, women, minors, slaves, indentured servants, lunatics, violent felons or hostile indians. That would describe the balance struck by the founding generation.

Faithful application of that balance isn't possible with our generally different views of women, indians and involuntary servitude, but we can still look to their treatment of minors, lunatics and violent felons. Not extending or protecting the full array of rights to members of those groups still seems to be on the table.

Applying that balance now does not involve prohibiting possession and use of stocks, magazines or types of personally borne weapons to populations who retain their rights. This is where Thomas' dissent is important. His analysis is consistent with that language, but his critique is that faithful application can't include an expansion of federal power to prohibit arms to an adult non-felon by virtue of a restraining/protective order where the government's offered analogue is substantially different.

In the progression of case law on this narrow subject, this seems a necessarily intermediate step.

__________________________
* One of the dispute resolution mechanisms available to free men of the period is one that has faded into our history. Formal and ritualized duelling enforced by society almost certainly served to curb behavior we now address with restraining orders or criminal prosecution.
 
Originally posted by 44 AMP
This is our system. Always has been. When we (the system acting in our name) locks up ANYONE for ANYTHING, their rights are being "violated" from the point of view of the individual, but not the govt. As long as due process is followed, its legal, and inside the rules. And, its only wrong/illegal/unconstitutional when due process is NOT followed or the opportunity for such not given.

This is my major issue with the various "red flag" laws, their "due process" is almost completely opposite the due process for other laws and charges.

based solely on an accusation, guns are seized, the owner is not required to be notified until after the fact, and his "day in court" can be up to a calendar YEAR later.
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I agree with all of that. The point I was trying to make was that "red flag laws" and similar are really only 2A issues peripherally, but more directly they're 5A and 14A issues and I think we'd be wise to attack them as such. I would be equally disgusted if any of a person's other rights were stripped away without due process like 2A rights are through "red flag" laws.

Honestly, the fact that it's 2A rights that are specifically stripped away by "red flag" laws is beside the point, the crux of the issue is that someone's Constitutionally guaranteed rights are being stripped away without due process. The only way that 2A really enters into it, in my mind, is that 2A is being specifically targeted and treated, as Justice Thomas would put it, as a "second class right" while the persons other rights remain intact unless/until they can receive due process. While we may not be entirely happy with the result of Rahimi, I'm inclined to believe that the correct decision was made as Rahimi's challenge was based solely on his 2A rights being violated, which they were not. As I understand it, Rahimi did not bring up 5A or 14A challenges so SCOTUS did not rule on those issues. Likewise, even if Rahimi had argued that his 5A and 14A rights were violated, he may still have lost as, in this particular case at least, it seems that he was afforded at least some due process prior to his 2A rights being removed and he failed to even bother to contest the restraining order.

As I said before, Rahimi really wasn't a good test case because, as you pointed out, he was a bad actor. In my brief read-through of the opinion, I have to ask why, given the seriousness and multitude of his crimes, that Rahimi wasn't already in jail which would have rendered the entire issue moot. At the very least, it seems he'd already committed battery, assault with a deadly weapon, terroristic threats, and criminal recklessness if not attempted murder. Any of these crimes, if charged and convicted, would have made him eligible for a lengthy prison sentence and almost certainly made him a prohibited person.

Now, the problem that I have with denial of rights due to a restraining order is the burden of proof required to get a restraining order can be, depending on the jurisdiction, rather low. In California for example, Cal. Fam. Code § 6300 states that a domestic violence protection order may be issued if "reasonable proof of a past act or acts of abuse" can be demonstrated. This is actually a lower standard than " clear and convincing evidence of harassment" required to issue a Civil Harassment Restraining Order under Cal. Code Civ. Proc. § 527.6(i) and well below the threshold of "beyond a reasonable doubt" required to secure a criminal conviction.

Likewise, in some states it is possible to get an emergency protective order with only the person asking for the order present. While these emergency orders are typically very short in duration as they're intended to give immediate relief/protection to the petitioning party until a more formal hearing in which both parties are present can be arranged, 18 U.S. Code § 922(g)(8)(C)(ii) makes no such distinction and thus, someone who is placed under an emergency protective order in which they have not yet had the opportunity to argue the case or defend themselves is just as much a prohibited person as Rahimi was.

While I would rather see the due process issues resolved, Rahimi didn't try to do that and probably wouldn't have been a good case to try with. While it's disappointing that these due process issues couldn't be resolved here, I'm thankful that SCOTUS chose to rule narrowly and leave the due process issues open to later revisit rather than make an unfavorable ruling based on a poor case.
 
Now, the problem that I have with denial of rights due to a restraining order is the burden of proof required to get a restraining order can be, depending on the jurisdiction, rather low.
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Restraining orders are "local" things. County judges can issue them, and therefore there can be as much difference in requirements as there are differences in judges.

Do we really WANT a comprehensive top down from the Federal level set of rules for what does and does not qualify? Yes, without that there will be inequalities and differences but we can have that even with a Fed "guideline".

IF a 'fix" is needed, it is the responsibility of the people who elect the judge.

In the Rahimi case, I wonder why it was even accepted, as my understanding is that he was already in jail, convicted on other charges, when he filed the suit. Seems kind of like closing the barn door after the horse is miles down the road...

Seems to me that the high court simply upheld the law, and the existing practice of judges being legally able to prohibit arms possession via a restraining order when there is sufficient evidence to show it is in the public interest. To my way of thinking, Rahimi demonstrated that multiple times, before the order was issued and after, in violation of the order.
 
44 AMP said:
In the Rahimi case, I wonder why it was even accepted, as my understanding is that he was already in jail, convicted on other charges, when he filed the suit. Seems kind of like closing the barn door after the horse is miles down the road...
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As I understand the history on this case, Rahimi objected to consecutive sentences for both the violation of the state restraining order and the 922g8 violation.

Apparently there is a criminal rule that disallows conviction and sentencing for both a crime and a lesser included offense, and since the one was included within the other he was effectively sentenced twice for the same act. Maybe someone smarter about criminal law will do a better job of shedding light on this.
 
He still would have the 922g8 facial challenge, but he wouldn't have had the same incentive to pursue the challenge. Essentially, he accepted the sentence for the violation of the restraining order and only contested the replicated additional sentence for the federal violation.

Yes, he was already in a cage, but the issue for him was how long he should be in one.
 
was just rereading this and one thing stood out to me.

"The 7th 3 judge panel upheld the Illinois AWB 2-1 stating that military rifles like the AR15 are not protected under the Second Amendment."

i thought and still believe that "military rifles" was and is exactly what A-II is about.

correct me if i'm wrong but didn't the battle of concord (or was it lexington) start because the british came to get the "military rifles" that the civilians owned?

and wasn't that the main reason the A-II was added to the constitution ?
 
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There are "historians" who view it differently, but I believe the British were primarily after the militia arms and, most importantly the powder stored there.

Also as a show of force and British dominancy to teach "the rabble" to mind their betters!! Didn't quite work out the way the British intended.

I do wonder if there is anything more hypocritical than supporting a ban on a "weapon of war" by claiming it is not protected by the laws that protect weapons of war??

The 2nd Amendment, like the others in the Bill of Rights, grants no rights, they are a listing of restrictions on what they govt may legally (and not do) regarding our natural rights.

That judge certainly can read English, but is choosing his ideals over the short, clear, declarative language of the Constitution.

If his is doing this because he does not, and cannot understand then it is misfeasance of office and he should be removed from office. IF he is intentionally doing it, (and I believe he must be) then that is malfeasance of office, the deliberate act to cause harm. He should be removed from office and prosecuted, in my opinion.

The big problem with our system is that it does rely on democracy, and the honesty and integrity of those who hold public office. There are others...
 
On top of that the AR-15 is not a military rifle. The AR-15 is a civilian semi automatic version of the M16 rifle used by the military. The 7th really did their homework on that decision but hey if it keeps those of us in Illinois from buying any more, at least for a while what's the harm?? In the mean time a lot of FFLs and gun stores are going out of business. It is also illegal for them to sell any accessories/parts for the AR15 other than 10 round magazines. No one will ship parts to us either as the law is so vague they don't want to take the chance. If my AR15 firing pin breaks or pistol grip cracks I guess I would have to ship it back to Colt for repair to stay legal.
 
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georgehwbush said:
was just rereading this and one thing stood out to me.

"The 7th 3 judge panel upheld the Illinois AWB 2-1 stating that military rifles like the AR15 are not protected under the Second Amendment."

i thought and still believe that "military rifles" was and is exactly what A-II is about.

correct me if i'm wrong but didn't the battle of concord (or was it lexington) start because the british came to get the "military rifles" that the civilians owned?

and wasn't that the main reason the A-II was added to the constitution ?
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You're missing the bigger problem: The AR-15 is not a military rifle.
 
You're missing the bigger problem: The AR-15 is not a military rifle.
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That's not even the real problem. The Second Amendment says "arms" and does not further specify.

An Illinois court ruled on an Illinois law. I don't live there, so I have no standing in the matter, but I think it is a bad, horribly flawed decision, and it defies logic in the process.
But, that's just me....:rolleyes:
 
44 AMP said:
That's not even the real problem. The Second Amendment says "arms" and does not further specify.
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Also true. I'm one of those people who think the 2A says I should be able to own a fully functional tank, howitzer, and F-16, complete with appropriate ammunition for the same. But I can't afford any of those things, so it's a highly theoretical issue (to me).
 
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