Hugh Damright
New member
Yes, I think so, but I didn't say it very well ... I understand this to be a 2 to 1 ruling, as if two people can change federal law.
The 2nd has not been incorporated.
Which Gun Laws do you think are susceptible to constitutional attack and why?
- Thread starter Wildalaska
- Start date
armoredman
New member
Eghad, we want to get rid of NFA andGCA 68, due to thefact that they unconsitutionally violate our prexisting, and now recognized individual right to keep and bear arms. Such arms allowable were wisley NOT specified by our Founding fathers, or we'd be debating the best powder for a particular musket ball.
There are states which do not permit thier subjects, er, citizens, to own NFA registered items, so yes, theNFA DOES cause citizens of thiscountry tobe unable to exercise thier individual rights. The entire National Registry needs to go away - why single out a class of firearm for a punitive taxation and registration scheme? It has nothing to do with crime control, but everything to do with people control.
As for Lautenberg, the first time a misdemeanor can cause a permanent revocation ofa fundamental right? Not good, especially since Congress defunded BATFE from restoring 2A rights to released felons. You get busted for a misdemeanor 30 years ago, and now you are a lifetime prohibited posessor, with no recourse. What will they add next, speeding tickets? Answer - anything they want. It needs to be repealed.
Of course, I am not a lawyer, nor do I play one on TV, so if my answers are not 100% in line with established law and policy as understood by those legal eagles on this board, sorry.
There are states which do not permit thier subjects, er, citizens, to own NFA registered items, so yes, theNFA DOES cause citizens of thiscountry tobe unable to exercise thier individual rights. The entire National Registry needs to go away - why single out a class of firearm for a punitive taxation and registration scheme? It has nothing to do with crime control, but everything to do with people control.
As for Lautenberg, the first time a misdemeanor can cause a permanent revocation ofa fundamental right? Not good, especially since Congress defunded BATFE from restoring 2A rights to released felons. You get busted for a misdemeanor 30 years ago, and now you are a lifetime prohibited posessor, with no recourse. What will they add next, speeding tickets? Answer - anything they want. It needs to be repealed.
Of course, I am not a lawyer, nor do I play one on TV, so if my answers are not 100% in line with established law and policy as understood by those legal eagles on this board, sorry.
Hugh Damright
New member
The Second Article of Confederation declared that each State retained its rights. The Federalist Papers refer to the rights of the State Governments. The Tenth Amendment is the "States' Rights Amendment". People love to say that government has only powers, but it defies our history.
Hey I wouldnt mind seeing the NFA go away and Lautenberg being changed. Wants and wished do not count very much before a court.
the state law may keep a person from purchasing a fully automatic weapon but it does not prohibit them from buying a firearm under the Second Amendment. The judges in Parker ruled that an entity may regulate firearms purchases as long as the as it does not prevent a qualified person from excersizing their SA rights. AS far as I know the NFA doesnt prohibit a qualified person from owning a NFA firearm. The prohibitive factor is the cost of owning one is what eliminates most people. If you had the same three judges from the Parker case I cant see them overturning the NFA on that basis. They would reccomend that it is best done by the legislature is my bet.
Lautenberg is a law of the land. It also does not prohibit a qualified person from buying firearms. Once again I dont see a win there yet. Lautenberg has been tried in Federal Court on the basis of the law and ex post facto. Lautenberg still exists. I do not see the same justices in Parker overturning Lautenberg. If a man has had due process and been convicted how could you aregue that Lautenberg violates his SA right? How I feel about a law has nothing to do with the practical application of a law.
maybe at a later date the arguments could be won but not today or the near future.
I could be very wrong....
but before anything else happens
The case needs to go to SCOTUS for a win.
the state law may keep a person from purchasing a fully automatic weapon but it does not prohibit them from buying a firearm under the Second Amendment. The judges in Parker ruled that an entity may regulate firearms purchases as long as the as it does not prevent a qualified person from excersizing their SA rights. AS far as I know the NFA doesnt prohibit a qualified person from owning a NFA firearm. The prohibitive factor is the cost of owning one is what eliminates most people. If you had the same three judges from the Parker case I cant see them overturning the NFA on that basis. They would reccomend that it is best done by the legislature is my bet.
Lautenberg is a law of the land. It also does not prohibit a qualified person from buying firearms. Once again I dont see a win there yet. Lautenberg has been tried in Federal Court on the basis of the law and ex post facto. Lautenberg still exists. I do not see the same justices in Parker overturning Lautenberg. If a man has had due process and been convicted how could you aregue that Lautenberg violates his SA right? How I feel about a law has nothing to do with the practical application of a law.
maybe at a later date the arguments could be won but not today or the near future.
I could be very wrong....
but before anything else happens
The case needs to go to SCOTUS for a win.
Wildalaska
Moderator
Hey Al is a supressor an "arm" within the meaning of the second amendment? 
Is a flash hider constituyionally protected?
WildimsuchabiyatchaintiAlaska
Is a flash hider constituyionally protected?
WildimsuchabiyatchaintiAlaska
MD_Willington
New member
Not a federal law...
Wa state has a law for immigrant and non-immigrant aliens where they issue a license afer a background check... one way they can prevent us legal law abiding green card holders is to stop issuing the licenses, as they did last year...
Wa state has a law for immigrant and non-immigrant aliens where they issue a license afer a background check... one way they can prevent us legal law abiding green card holders is to stop issuing the licenses, as they did last year...
Wildalaska
Moderator
and....?And?
WildifihadtimeiarguenoonbothAlaska
I think the NFA has some serious problems in an individual rights climate, and can probably be attacked on a number of fronts:
1. CLEO signoff having due process and equal protection issues.
2. 5320.20 forms: the Federal government needs to know dates and locations in advance every time you take a vacation with your NFA toys -- could be considered an undue burden on the exercise of an individual right.
3. The tax itself is questionable. In Minneapolis Star & Tribune, the Supreme Court ruled 8-1 that singling out a select number of publishers for a special tax violated the First Amendment even though there was no evidence that tax was intended to restrict freedom of speech.
The GCA is much more secure since the Supremes have signed off on so many similar broad regulatory schemes. Maybe the import ban and sporting purposes clause are suspect in an individual rights environment.
1. CLEO signoff having due process and equal protection issues.
2. 5320.20 forms: the Federal government needs to know dates and locations in advance every time you take a vacation with your NFA toys -- could be considered an undue burden on the exercise of an individual right.
3. The tax itself is questionable. In Minneapolis Star & Tribune, the Supreme Court ruled 8-1 that singling out a select number of publishers for a special tax violated the First Amendment even though there was no evidence that tax was intended to restrict freedom of speech.
The GCA is much more secure since the Supremes have signed off on so many similar broad regulatory schemes. Maybe the import ban and sporting purposes clause are suspect in an individual rights environment.
Sorry if this is off topic, but I wasn't sure if this question should start a separate thread or not.
Occasionally, a person is wrongfully convicted of a crime. If that person goes to court and gets it overturned at the state level, isn't that person still prohibited on the federal level for life? In other words, once on the list, never off, right? Lautenberg could be violative of the person's rights simply because there is no mechanism to regain 2nd amendment rights, while even a convicted felon can (theoretically) regain all of his rights.
Could this possibility gain a person standing to try and challenge the Lautenberg act?
Occasionally, a person is wrongfully convicted of a crime. If that person goes to court and gets it overturned at the state level, isn't that person still prohibited on the federal level for life? In other words, once on the list, never off, right? Lautenberg could be violative of the person's rights simply because there is no mechanism to regain 2nd amendment rights, while even a convicted felon can (theoretically) regain all of his rights.
Could this possibility gain a person standing to try and challenge the Lautenberg act?
A highly interesting conversation here. I like it!
What laws could/should we challenge?
I have to believe that if the 2A is defined as an individual right, the following could be challenged as infringement or denial of the exercise of a right;
- One-Gun-A-Month laws
- Required "gun owner" or "safety" cards for a fee, prior to purchase
- Permits to purchase, own or possess that require a fee.
- Waiting periods of any kind.
- Ammo capacity limits, especially on "militia rifles".
- Lautenberg's misdemeanor liability to arms
- The "Sporting use" definitions used in GCA68 and elsewhere.
- Prohibitions on owing or posessing handguns.
- "Gun Free Zones" where your rights are void - though certain exemptions apply such as jails & prisons.
- The NFA "tax" on Class III items or any tax specifically targeting firearms, ammunition or components of either.
- Loss of rights through restraining orders without a finding of fact (real danger) such as TRO's during a divorce.
With regard to Lautenberg:
Someone mentioned it requires a misdemeanor conviction and thus you have received your "due process". I disagree.
Lautenberg says that ANY misdemeanor "domestic violence" conviction applies, no matter how old. Suppose you were convicted of misdemeaor assault of your now ex-spouse 18 years before enactment of Lautenberg. At that time, a lawyer would have explained your options to you and the "liabilities" for each plea (guilty, not guilty, no-contest, etc.). He may have advised you to plead guilty because at that time the liabilities would be a fine, "X" days in jail, possibly both and a minor criminal record that would have minimal impact on your future.
Thus, you plead "no contest" and were "convicted". Then, 18 years later you find you can not own a firearm. Huh? The Lautenberg law, in effect, changes the impact of your plea to a prior charge.
Thus... the unintended consequence is that you can NEVER know what statutory liabilities a misdemeanor conviction will carry in the future. Substitute your right to vote or to hold elective office for firearms and you can see that the constitutionality of such a law would be suspect. Lautenberg may actually be an ex-post facto law in that it creates a "new" punishment for previously adjudicated acts and denies the person "due process" to fight the new punishment.
What laws could/should we challenge?
I have to believe that if the 2A is defined as an individual right, the following could be challenged as infringement or denial of the exercise of a right;
- One-Gun-A-Month laws
- Required "gun owner" or "safety" cards for a fee, prior to purchase
- Permits to purchase, own or possess that require a fee.
- Waiting periods of any kind.
- Ammo capacity limits, especially on "militia rifles".
- Lautenberg's misdemeanor liability to arms
- The "Sporting use" definitions used in GCA68 and elsewhere.
- Prohibitions on owing or posessing handguns.
- "Gun Free Zones" where your rights are void - though certain exemptions apply such as jails & prisons.
- The NFA "tax" on Class III items or any tax specifically targeting firearms, ammunition or components of either.
- Loss of rights through restraining orders without a finding of fact (real danger) such as TRO's during a divorce.
With regard to Lautenberg:
Someone mentioned it requires a misdemeanor conviction and thus you have received your "due process". I disagree.
Lautenberg says that ANY misdemeanor "domestic violence" conviction applies, no matter how old. Suppose you were convicted of misdemeaor assault of your now ex-spouse 18 years before enactment of Lautenberg. At that time, a lawyer would have explained your options to you and the "liabilities" for each plea (guilty, not guilty, no-contest, etc.). He may have advised you to plead guilty because at that time the liabilities would be a fine, "X" days in jail, possibly both and a minor criminal record that would have minimal impact on your future.
Thus, you plead "no contest" and were "convicted". Then, 18 years later you find you can not own a firearm. Huh? The Lautenberg law, in effect, changes the impact of your plea to a prior charge.
Thus... the unintended consequence is that you can NEVER know what statutory liabilities a misdemeanor conviction will carry in the future. Substitute your right to vote or to hold elective office for firearms and you can see that the constitutionality of such a law would be suspect. Lautenberg may actually be an ex-post facto law in that it creates a "new" punishment for previously adjudicated acts and denies the person "due process" to fight the new punishment.
Furthermore, in some jurisdictions, the fundamentals of due process are waived by statute in misdemeanor cases. Specifically, in Clark Co. NV you are not entitled to a lawyer or jury trial in misdemeanor cases.
There is no other fundamental right that can be removed in this manner. There are no so-called privileges that can be removed in this manner (you don't lose the privilege of driving for a single misdemeanor moving violation).
Lautenberg by definition is an ongoing punishment for an admittedly minor offense. If there were sufficient cause to prosecute for a felony you can bet your sweet bippy that they would.
I cannot see how this can be considered as anything other than a back-door gun grab.
thanks,
Jefferson
There is no other fundamental right that can be removed in this manner. There are no so-called privileges that can be removed in this manner (you don't lose the privilege of driving for a single misdemeanor moving violation).
Lautenberg by definition is an ongoing punishment for an admittedly minor offense. If there were sufficient cause to prosecute for a felony you can bet your sweet bippy that they would.
I cannot see how this can be considered as anything other than a back-door gun grab.
thanks,
Jefferson
We may be parsing something differently, or maybe I don't understand.
The only mention of rights in the constitution is (until the amendments):
However, there are quite a few mentions of "power." I'm of the opinion that the founders were quite careful in their use of words. This leads me to believe the words had different meanings.
I'm certainly no expert but there seems to me that the Federal government has only restricted "powers" and the states and their citizens have both rights and powers.
Regardless, this thread is not the place to argue over the meaning of States Rights/Powers.
Ken, I don't think it makes much sense in articulating complete arguments until such a time that the Parker case is solid precedent. That would be if the SCOTUS is not petitioned for cert and/or denies cert.
About all I am doing is making a generalized statement, not an actual argument. A lot more research would be required for an actual argument, I would think.
It may be that I'm completely wrong, or I could be partially wrong while being partially correct. I could also be completely correct. Sorta depends on the legal theory I would argue.
Ken, I don't think it makes much sense in articulating complete arguments until such a time that the Parker case is solid precedent. That would be if the SCOTUS is not petitioned for cert and/or denies cert.
About all I am doing is making a generalized statement, not an actual argument. A lot more research would be required for an actual argument, I would think.
It may be that I'm completely wrong, or I could be partially wrong while being partially correct. I could also be completely correct. Sorta depends on the legal theory I would argue.
Wildalaska
Moderator
Aw come on Al....lets roll on this one, one of my internet constituional debate bete noirs from way back:
Posit: The AWB as it reltaes to falsh hiders and pistol grips, which is merely cosmetic, does dont violate the 2nd in that it does not infringe on the right to bear arms, and if it does, the infringement is de minimus non jurat lex.
WildcolttimeAlaska
Thanks for that link Eghad.
The lesson here is that one should fight ANY misdemeanor charge and insist on full exercise of one's rights under the law. That means a lawyer and a trial to ensure that your rights are protected into the future.
Unfortunately, Latuenberg along with too many "domestic violence" laws are simply bad law. I know of at least two cases where a spouse deliberately provoked the other as part of a gambit to get the upper hand in later divorce proceedings. (In one case he blocked her exit from the house and told her she'd have to move him first -- she did. He then claimed to be a victim of "domestic violence" which was upheld. :barf
The lesson here is that one should fight ANY misdemeanor charge and insist on full exercise of one's rights under the law. That means a lawyer and a trial to ensure that your rights are protected into the future.
Unfortunately, Latuenberg along with too many "domestic violence" laws are simply bad law. I know of at least two cases where a spouse deliberately provoked the other as part of a gambit to get the upper hand in later divorce proceedings. (In one case he blocked her exit from the house and told her she'd have to move him first -- she did. He then claimed to be a victim of "domestic violence" which was upheld. :barf