US Can't Ban Non-violent Offenders From Owning Guns: Appeals Court

[indyblue]

Maybe merge this with my original thread?

US Can't Ban Non-violent Offenders From Owning Guns: Appeals Court

https://www.newsmax.com/newsfront/guns/2023/06/06/id/1122602/ Circuit Judge Thomas Hardiman wrote for the majority on Tuesday that the government had failed to point to any laws from the United States' founding establishing a tradition of disarming non-violent criminals. Four judges dissented...

www.indianagunowners.com

 

[JAL]

I'm not a legal eagle. Help me understand how this applies to 2a.

Those convicted of felonies or domestic abuse crimes go into the NICS system and if they attempt to buy a firearm from an FFL, their 4473 will be denied. The individual can be prosecuted in Federal Court for lying on the 4473 if they answered "NO" to the felony conviction or domestic abuse crime conviction question. In addition, such a "Prohibited Person" can also be prosecuted under Federal Law for simply possessing a firearm or having "constructive possession" of one by being in its presence in a location under their control (aka having "dominion" over it) and having unfettered access to it. Example of "constructive possession" is a gun in an unlocked desk drawer where the Prohibited Person also resides when its (lawful) owner isn't there in the residence to prevent access to it -- whether or not the Prohibited Person even knows it's in the desk drawer. It's fundamentally about non-violent felony conviction 2A rights restoration and not making them a Prohibited Person for life.

Legal geek-speak:
There is a distinction between crimes which are "malum in se" -- basically self-evident they are (or should be) crimes, such as unprovoked physical assault, armed robbery, or shoplifting, and crimes that are "malum prohibitum" -- an illegal act subject to criminal penalty only because a law makes it a crime, such as jaywalking, or leaving a trash bin out by the curb for two days after weekly trash pickup occurred (there are places with such laws). Willfully lying on a food stamps application would be "malum in se" but one would also acknowledge it's a non-violent one compared to robbing a bank using a handgun. Felony drug possession convictions are mostly "malum prohibitum" as there was no violent act committed, and if there is any potential harm, it's self-inflicted from using the drugs.

My thought . . .
Be careful what you make a plea deal on to make a criminal charge go away, and never plead guilty to anything if you didn't commit a crime you're being charged with, just to end the ordeal, as the ordeal of a legal confession made in court via allocution persists for a lifetime.

 

[Kirk Freeman]

Maybe merge this with my original thread?

US Can't Ban Non-violent Offenders From Owning Guns: Appeals Court

https://www.newsmax.com/newsfront/guns/2023/06/06/id/1122602/ Circuit Judge Thomas Hardiman wrote for the majority on Tuesday that the government had failed to point to any laws from the United States' founding establishing a tradition of disarming non-violent criminals. Four judges dissented...

www.indianagunowners.com

Sorry, blue.

Mods, move as you desire please.

 

[Kirk Freeman]

A Harvard professor named Harvey Silverstein wrote a book years ago about how most professionals unknowingly commit three felonies a day.

"In Three Felonies a Day, Harvey A. Silverglate reveals how federal criminal laws have become dangerously disconnected from the English common law tradition and how prosecutors can pin arguable federal crimes on any one of us, for even the most seemingly innocuous behavior. Jan 5, 2019"

View attachment 280259

Great book. I urge all of those on INGO who are interested in criminal justice, or, more importantly, reforming criminal justice read this.

 

[Kirk Freeman]

So the entire 3rd Circuit will overturn the en banc decision... then on to SCOTUS?

High percentage shot that SCOTUS takes this. Wait and see if .gov seeks cert.

 

[JAL]

. . . Wait and see if .gov seeks cert.

Two observations:

DoJ may not seek cert, hoping to limit 922(g)(1) damage and cut their losses. If the 3rd Circuit's majority decision was narrowly limited to this one case, aka "as applied", to plaintiff Bryan Range, it could be allowed to pass by with DoJ not wanting SCOTUS to overturn the 922(g)(1) apple cart more broadly, or completely. I read through much of the majority opinion, and then skimmed through the concurrences and dissents. It's my conclusion the intent of he court's majority is 922(g)(1) is only "unconstitutional as applied to Bryan Range". Whether or not it is to anyone else is left undecided for other litigation to determine on their specific merits.

I've no doubt it will precipitate an enormous number of federal lawsuits from anyone who can afford to mount them that believes they're "like Bryan Range" in being classed "Prohibited Persons", at least in the 3rd Circuit (something Kirk Freeman alluded to in his cat cartoon). It will clog District Court dockets with them. Also no doubt similar cases elsewhere will see motions for their courts to "take notice" of this en banc 3rd Circuit Court decision, and the majority opinion that goes with it.

Let the fun begin.

 

[Gingerbeardman]

Shall not be infringed is getting infringed upon and we're arguing about it?

 

[HK45Lefty]

I'm not a legal eagle. Help me understand how this applies to 2a.

Since the 2nd was incorporated under the 14th amendment in the Heller case, the equal protection clause applies. Basically you cannot deprive anyone of their 2nd amendment rights without due process, and a compelling reason. Banning non-violent felons from owning guns is punitive and not reflecting the nature of the crime they committed. Banning violent felons is more relevant to public safety.

 

[Ingomike]

Shall not be infringed is getting infringed upon and we're arguing about it?

Have you read the thread?

 

[xwing]

That's a good decision. The thing that bothers me the most is completely abridging people's firearm right forever for non-violent offences. At the very least, there should be an achievable process for them to restore their rights. (Currently the only process for federal crimes is if the President of the USA issues a pardon, and IMO that is not an "achievable" process for more than a very select few.)

 

[woodsie57]

I'm in agreement with this ruling.
If a person has a non violent felony they should not be deprived of their 2nd Amendment right.

Trouble is, he was stealing money from the government that the politicians wanted to steal for themselves.

 

[cosermann]

Adding a link to the decision (worthwhile reading) as I didn't see it included in the thread yet (apologies if I missed it):

https://www2.ca3.uscourts.gov/opinarch/212835pen.pdf

 

[JAL]

Adding a link to the decision (worthwhile reading) as I didn't see it included in the thread yet (apologies if I missed it):

https://www2.ca3.uscourts.gov/opinarch/212835pen.pdf

Be forewarned . . . it's gets down into the weeds very quickly . . . examining every stalk, blade and leaf, and has very lengthy footnotes. Some of the concurring opinions and dissenting opinions are more lengthy than the original majority opinion and decision. For those that take the time to sort out how to read one of these without getting lost in it, and read this one in the main, it's an interesting dive into how the Bruen decision has reshaped the 2A federal judicial landscape, and gives some insight on it. The upending and abrogation of the "two part interest balancing test" by the collective decisions in Heller, McDonald, Caetano and Bruen is repeated many times in the majority, concurring and dissenting opinions, with emphasis on Bruen.

EDIT: As an aid to those reading it, the majority opinion and decision is in the first 24 pages. When the page numbering starts over, you're into another opinion, with all the separate concurring ones coming first, and then the dissenting ones, with each having its own page numbering. Total document is well over 100 pages total.

 

[indyblue]

A Harvard professor named Harvey Silverstein wrote a book years ago about how most professionals unknowingly commit three felonies a day.

"In Three Felonies a Day, Harvey A. Silverglate reveals how federal criminal laws have become dangerously disconnected from the English common law tradition and how prosecutors can pin arguable federal crimes on any one of us, for even the most seemingly innocuous behavior. Jan 5, 2019"

View attachment 280259

TY for this, I am reading it online via imcpl.org using my library card.

 

[Tripp11]

Here is a pretty good summary of the Bruen vs. Garland issue if anyone is interested in reading:

Court Rules Government Can’t Strip Second Amendment Rights From Those Convicted of Minor, Nonviolent Offenses

The U.S. Court of Appeals for the Third Circuit held this week in Range v. Garland that the government cannot disarm people convicted of minor, nonviolent offenses.

www.heritage.org

If the Supreme Court takes this up in the near future, which I believe they will at some point, it might mean those non-violent felons would have a path back to gun rights restoration and their 2nd Amendment rights would not be infringed upon.