Reply
 
Thread Tools Display Modes
  #1  
Old 09-19-2018, 02:16 PM
UltraVires UltraVires is offline
Guest
 
Join Date: Jul 2007
Location: Bridgeport, WV, US
Posts: 13,975
Person with gun in home, spouse is a felon, and Heller

It is pretty well known that in addition to actual possession of a firearm by a conviction felon, he can also be convicted for what is known as "constructive possession" in that he knew: 1) that the firearm was present, and 2) he had the ability to exercise dominion and control over it..

It is well established, for example, that a gun in the nightstand of a couple, one a felon, the other not, will be deemed in the constructive possession of the felon.

Further, when a spouse of a felon owns firearms, she is frequently advised to keep them locked up with the only key in her possession so that her spouse is not charged with this constructive possession.

If anyone dispute the above, I will be happy to provide cites. Here is my question/argument:

Has anyone ever argued the Second Amendment rights of the spouse/right to marry? Let's agree with these principles:

1. Spouse has a fundamental right to marry the person of her choice. See Loving, Obergefell, etc.etc.
2. Spouse has a Second Amendment right, per Heller, to own firearms.
3. Spouse further has the right to keep them loaded in the house in an area where they can readily be employed for self defense, again per Heller.

Given these as true, if she chooses to exercise her rights, she will be exposing her felon spouse to arrest and imprisonment despite no action being taken on his part.

Since Heller, has anyone argued that the constructive possession doctrine as applied is unconstitutional? If it has not been argued, is there a flaw in my argument?
  #2  
Old 09-19-2018, 02:20 PM
UltraVires UltraVires is offline
Guest
 
Join Date: Jul 2007
Location: Bridgeport, WV, US
Posts: 13,975
A secondary question/debate is the definition of "dominion and control." All of the cases speak of the "ability" to possess the firearm. Is this a possessory ability or a de facto ability?

For example, suppose we are roommates and you leave your grandfather's priceless pocket watch on the kitchen table. You leave for work. Do I have "dominion and control" over the watch?

In a way, I do. I have the ability to hold it, take it apart, look at it, even steal it and sell it at a pawn shop.

In a different way I do not, because any action I take with the watch is trespassory in nature and wrongful.

So do I have dominion and control over the watch?
  #3  
Old 09-19-2018, 02:22 PM
begbert2 begbert2 is offline
Guest
 
Join Date: Jan 2003
Location: Idaho
Posts: 11,397
Is it your opinion that keeping your weapons locked up sufficiently that, say, your five year old child can't get into them would be impossible to do without violating the 'ready access' rights granted by Heller?
  #4  
Old 09-19-2018, 02:28 PM
UltraVires UltraVires is offline
Guest
 
Join Date: Jul 2007
Location: Bridgeport, WV, US
Posts: 13,975
Quote:
Originally Posted by begbert2 View Post
Is it your opinion that keeping your weapons locked up sufficiently that, say, your five year old child can't get into them would be impossible to do without violating the 'ready access' rights granted by Heller?
Under the hypo I have no five year old child. If you think it is relevant, I'll add it in, but I'm not seeing it.
  #5  
Old 09-19-2018, 02:28 PM
Jasmine's Avatar
Jasmine Jasmine is online now
Member
 
Join Date: Jul 1999
Location: Chicagoland
Posts: 1,430
Your "flaw", as with many right wing conservatives when it comes to gun ownership issues, is that you repeatedly ignore the fact that any right, constitutionally mandated or not, can be curtailed if you break the law and show that it is dangerous or irresponsible for you to have that right.

To dispense with that rule is to create yet another gun ownership loophole that can be taken advantage of. "No, I don't have a gun, but the person sleeping with me has one unlocked and available only ten feet away."
  #6  
Old 09-19-2018, 02:31 PM
UltraVires UltraVires is offline
Guest
 
Join Date: Jul 2007
Location: Bridgeport, WV, US
Posts: 13,975
Quote:
Originally Posted by Jasmine View Post
Your "flaw", as with many right wing conservatives when it comes to gun ownership issues, is that you repeatedly ignore the fact that any right, constitutionally mandated or not, can be curtailed if you break the law and show that it is dangerous or irresponsible for you to have that right.

To dispense with that rule is to create yet another gun ownership loophole that can be taken advantage of. "No, I don't have a gun, but the person sleeping with me has one unlocked and available only ten feet away."
WTF? Where in the hell does the "conservative" attack come from? When doing research for a client, I'll argue the communist position if need be.

Anyways, the spouse has never committed a crime so her rights should not be "curtailed" in any way. Any freedom makes law enforcement harder. You might as well say that there should be no Fourth Amendment because felons can just hide guns in homes.
  #7  
Old 09-19-2018, 02:58 PM
x-ray vision's Avatar
x-ray vision x-ray vision is offline
Charter Member
 
Join Date: Oct 2002
Location: N.J.
Posts: 5,812
Quote:
Originally Posted by UltraVires View Post
Under the hypo I have no five year old child. If you think it is relevant, I'll add it in, but I'm not seeing it.
You're not seeing it? I don't see how it's any different. Many states have laws that make it illegal for an adult to store a gun in a manner that makes it easily accessible to a child. Several states have made it so they must be locked in a safe or container of some sort or have gun locks on them.
  #8  
Old 09-19-2018, 03:00 PM
begbert2 begbert2 is offline
Guest
 
Join Date: Jan 2003
Location: Idaho
Posts: 11,397
Quote:
Originally Posted by UltraVires View Post
Under the hypo I have no five year old child. If you think it is relevant, I'll add it in, but I'm not seeing it.
I'm just wondering how absurd it is to claim that requiring a person to lock their drawer is illegal under Heller.

And also to point out that nobody is actually requiring the non-felon spouse to lock the drawer, any more than anybody is required* to keep their loaded handguns out of the hands of children. If the parent gives a fuck about their child, then they will lock up their guns, Heller or not, and the fact that they care about their child is not a violation of any rights granted by Heller.

Their decision to aid their spouse in complying with the law is, similarly, their choice. Unless you think they could be charge as an accessory to commit constructive possession?

*ETA: Okay, maybe parents ARE required to lock up their guns if they have kids. What does this say about the rights granted by Heller?

Last edited by begbert2; 09-19-2018 at 03:01 PM.
  #9  
Old 09-19-2018, 03:05 PM
UltraVires UltraVires is offline
Guest
 
Join Date: Jul 2007
Location: Bridgeport, WV, US
Posts: 13,975
Quote:
Originally Posted by x-ray vision View Post
You're not seeing it? I don't see how it's any different. Many states have laws that make it illegal for an adult to store a gun in a manner that makes it easily accessible to a child. Several states have made it so they must be locked in a safe or container of some sort or have gun locks on them.
Heller seems to hold those laws unconstitutional:

Quote:
Originally Posted by Heller
In sum, we hold that the District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.
emphasis added.
  #10  
Old 09-19-2018, 03:09 PM
UltraVires UltraVires is offline
Guest
 
Join Date: Jul 2007
Location: Bridgeport, WV, US
Posts: 13,975
Quote:
Originally Posted by begbert2 View Post
I'm just wondering how absurd it is to claim that requiring a person to lock their drawer is illegal under Heller.

And also to point out that nobody is actually requiring the non-felon spouse to lock the drawer, any more than anybody is required* to keep their loaded handguns out of the hands of children. If the parent gives a fuck about their child, then they will lock up their guns, Heller or not, and the fact that they care about their child is not a violation of any rights granted by Heller.

Their decision to aid their spouse in complying with the law is, similarly, their choice. Unless you think they could be charge as an accessory to commit constructive possession?

*ETA: Okay, maybe parents ARE required to lock up their guns if they have kids. What does this say about the rights granted by Heller?
I'm not asking about best practices. Again, assume no children in the house so we don't have to deal with who is a responsible parent and who is not. That isn't the question.

Further, spouses are indeed charged with aiding and abetting a felon in possession and the courts are split regarding the level of knowledge required:

http://ia801407.us.archive.org/34/it...6847.144.0.pdf
  #11  
Old 09-19-2018, 03:10 PM
Enginerd Enginerd is offline
Guest
 
Join Date: Jun 2000
Posts: 5,788
Quote:
Originally Posted by UltraVires View Post
WTF? Where in the hell does the "conservative" attack come from? When doing research for a client, I'll argue the communist position if need be.

Anyways, the spouse has never committed a crime so her rights should not be "curtailed" in any way. Any freedom makes law enforcement harder. You might as well say that there should be no Fourth Amendment because felons can just hide guns in homes.
Is it not a crime to make a firearm available to somebody who you know isn't allowed to possess one?
  #12  
Old 09-19-2018, 03:16 PM
UltraVires UltraVires is offline
Guest
 
Join Date: Jul 2007
Location: Bridgeport, WV, US
Posts: 13,975
Quote:
Originally Posted by Enginerd View Post
Is it not a crime to make a firearm available to somebody who you know isn't allowed to possess one?
That's the whole question in the OP. Yes the gun is technically "available" to the felon spouse, but the law says possession and not availability. It seems like it would be against public policy that if my spouse is convicted of a felony, I then have the choice of forfeiting my second amendment rights or divorcing my spouse.

That construction would also expose anyone in the house to possession of others' prescription medication. Let's say I have a prescription for oxycodone and the bottle is in the medicine cabinet. Is my wife in constructive possession of a controlled substance without a valid prescription? If I have beer in the fridge are my kids now minors in constructive possession of alcohol?

And I have no constitutional right to have oxycodone or alcohol.
  #13  
Old 09-19-2018, 03:22 PM
x-ray vision's Avatar
x-ray vision x-ray vision is offline
Charter Member
 
Join Date: Oct 2002
Location: N.J.
Posts: 5,812
Quote:
Originally Posted by begbert2 View Post
Their decision to aid their spouse in complying with the law is, similarly, their choice. Unless you think they could be charge as an accessory to commit constructive possession?
Good point. It makes the gun lock laws when children live in the house a better example for the OP, unless someone can find an example where both parties were charged.

Quote:
Originally Posted by UltraVires View Post
Heller seems to hold those laws unconstitutional:



emphasis added.
That's your opinion; the courts disagree with you. Which would you like to discuss?


Quote:
Originally Posted by Enginerd View Post
Is it not a crime to make a firearm available to somebody who you know isn't allowed to possess one?
With children, yes. I bet know one will find a case where one has been charged with a crime fitting the example in the OP. Here's an interesting case:

http://lawcenter.giffords.org/gun-la.../safe-storage/

Grice was not charged with anything.
  #14  
Old 09-19-2018, 03:31 PM
UltraVires UltraVires is offline
Guest
 
Join Date: Jul 2007
Location: Bridgeport, WV, US
Posts: 13,975
Quote:
Originally Posted by x-ray vision View Post
Good point. It makes the gun lock laws when children live in the house a better example for the OP, unless someone can find an example where both parties were charged.


That's your opinion; the courts disagree with you. Which would you like to discuss?



With children, yes. I bet know one will find a case where one has been charged with a crime fitting the example in the OP. Here's an interesting case:

http://lawcenter.giffords.org/gun-la.../safe-storage/

Grice was not charged with anything.
Post #10. If there was a law requiring "safe storage" in a home with a convicted felon, we could argue about the constitutionality, but I would agree with the analogy.

The analogy fails because in this instance it would be like having a state with no safe storage law, but finding that keeping a firearm in an unlocked nightstand provided "constructive possession" to a child and bringing a juvenile petition against the child for having a pistol while underage and charging the parent with aiding and abetting that possession.

The safe storage laws are not apt, nor are they constitutional. That's not my opinion. See the direct quote from Heller I provided in post #10?
  #15  
Old 09-19-2018, 03:38 PM
Folly's Avatar
Folly Folly is offline
Guest
 
Join Date: Aug 2004
Location: Chicago! (no more burbs)
Posts: 2,070
Jackson v. City & County of San Francisco, 746 F.3d 953 (9th Cir. 2014);

Supreme court denied Writ of Certiorari

Quote:
Section 4512 of the San Francisco Police Code provides that “[n]o person shall keep a handgun within a residence owned or controlled by that person unless” (1) “the handgun is stored in a locked container or disabled with a trigger lock that has been approved by the California Department of Justice” or (2) “[t]he handgun is carried on the person of an individual over the age of 18” or “under the control of a person who is a peace officer under [California law].” San Francisco Police Code, Art. 45, §§4512(a), (c) (2015)
Quote:
The Court of Appeals readily acknowledged that the law “burdens the core of the Second Amendment right” because “[h]aving to retrieve handguns from locked containers or removing trigger locks makes it more difficult ‘for citizens to use them for the core lawful purpose of self-defense’ in the home.” 746 F. 3d 953, 964 (2014) (quoting Heller, supra, at 630). But it reasoned that this was not a “severe burden” justifying the application of strict scrutiny because “a modern gun safe may be opened quickly.” 746 F. 3d, at 964. Applying intermediate scrutiny, the court evaluated San Francisco’s proffered “evidence that guns kept in the home are most often used in suicides and against family and friends rather than in self-defense and that children are particularly at risk of injury and death.” Id., at 965. The court concluded that the law served “a significant government interest by reducing the number of gun-related injuries and deaths from having an unlocked handgun in the home” and was “substantially related” to that interest. Id., at 966.
  #16  
Old 09-19-2018, 03:46 PM
x-ray vision's Avatar
x-ray vision x-ray vision is offline
Charter Member
 
Join Date: Oct 2002
Location: N.J.
Posts: 5,812
Quote:
Originally Posted by UltraVires View Post
Post #10. If there was a law requiring "safe storage" in a home with a convicted felon, we could argue about the constitutionality, but I would agree with the analogy.

The analogy fails because in this instance it would be like having a state with no safe storage law, but finding that keeping a firearm in an unlocked nightstand provided "constructive possession" to a child and bringing a juvenile petition against the child for having a pistol while underage and charging the parent with aiding and abetting that possession.
Where is any party part of a couple getting charged with aiding and abetting?

Quote:
The safe storage laws are not apt, nor are they constitutional. That's not my opinion. See the direct quote from Heller I provided in post #10?
Quote:
The SJC determined that the Second Amendment does not restrict the right of the Massachusetts Legislature to regulate the possession of firearms and ammunition. Moreover, the Court found that the provisions of G.L. c. 140, § 131L (a) are distinguishable from those held unconstitutional in Heller. In Heller, a registered gun owner was prohibited in all circumstances from carrying or keeping a loaded firearm in the home. In contrast, G.L. c. 140, § 131L (a) does not require an individual with a valid firearms identification card to secure or render inoperable a firearm while the individual carries it or otherwise keeps it under his control. The legal requirement to secure the firearm arises only when it is stored or outside the owner's immediate control, thereby allowing a licensed person to use it for self-defense.
http://www.mass.gov/mdaa/court-decis...-v-runyan.html

That's at least one court that disagrees with you.
  #17  
Old 09-19-2018, 04:02 PM
Folly's Avatar
Folly Folly is offline
Guest
 
Join Date: Aug 2004
Location: Chicago! (no more burbs)
Posts: 2,070
Quote:
Originally Posted by x-ray vision View Post
That's at least one court that disagrees with you.
Heck, Heller disagrees with him about safe storage laws being constitutional.

Quote:
Nor, correspondingly, does our analysis suggest the invalidity of laws regulating the storage of firearms to prevent accidents. Heller, supra at 632, 128 S.Ct. 2783
  #18  
Old 09-19-2018, 04:08 PM
UltraVires UltraVires is offline
Guest
 
Join Date: Jul 2007
Location: Bridgeport, WV, US
Posts: 13,975
Quote:
Originally Posted by Folly View Post
Heck, Heller disagrees with him about safe storage laws being constitutional.
Okay. I stand corrected, although that seems as odds with Heller's fundamental holding. How can you pass a law mandating "safe storage" of firearms yet have them available for "immediate" self-defense?

No matter, we are far afield here of my question in the OP. There is no "safe storage" law for people who live with felons. The spouse further has the right to keep firearms in the house for ready self-defense.

How does one do that without subjecting herself or her spouse to arrest?
  #19  
Old 09-19-2018, 04:12 PM
Folly's Avatar
Folly Folly is offline
Guest
 
Join Date: Aug 2004
Location: Chicago! (no more burbs)
Posts: 2,070
Post 15 is a safe storage law for people who live with felons. And people who live with children. And people who live without children or felons. And people who live with polydactyl cats.
  #20  
Old 09-19-2018, 04:12 PM
Darren Garrison's Avatar
Darren Garrison Darren Garrison is offline
Guest
 
Join Date: Oct 2016
Posts: 8,645
I didn't know that there was a restriction on the gun ownership of spouses of convicted felons. I used to listen to G. Gordon Liddy's radio show occasionally, and he would openly brag about all of "his wife's guns."
  #21  
Old 09-19-2018, 04:19 PM
Little Nemo Little Nemo is offline
Charter Member
 
Join Date: Dec 1999
Location: Western New York
Posts: 78,864
Quote:
Originally Posted by UltraVires View Post
Okay. I stand corrected, although that seems as odds with Heller's fundamental holding. How can you pass a law mandating "safe storage" of firearms yet have them available for "immediate" self-defense?

No matter, we are far afield here of my question in the OP. There is no "safe storage" law for people who live with felons. The spouse further has the right to keep firearms in the house for ready self-defense.

How does one do that without subjecting herself or her spouse to arrest?
I think the question has been answered. The courts have not found a conflict between the right to have access to a firearm and restrictions on denying access to people that shouldn't have access, such as minors or felons. The courts seem to feel that if firearms are stored in a locked container that's uninfringed enough for Second Amendment purposes.
  #22  
Old 09-19-2018, 04:22 PM
x-ray vision's Avatar
x-ray vision x-ray vision is offline
Charter Member
 
Join Date: Oct 2002
Location: N.J.
Posts: 5,812
Quote:
Originally Posted by UltraVires View Post
Further, spouses are indeed charged with aiding and abetting a felon in possession and the courts are split regarding the level of knowledge required:

http://ia801407.us.archive.org/34/it...6847.144.0.pdf
I didn't read all of that, but skimming through it I found this (bolding mine):
Quote:
At defendant Hall‟s guilty plea hearing, which is a matter of public record, government counsel stated that:
Mr. Hall lived with . . . Melissa Huet, (who) had no prior record of which we are
aware, but . . . bought firearms in her name for (sic) Morgan Jones, who on the side sold firearms. . . Miss Huet would allow Mr. Hall to have access to those firearms. In essence, that‟s the very basis of the charge against Mr. Hall to which he is pleading guilty today.
It doesn't seem relevant to the OP.
  #23  
Old 09-19-2018, 04:23 PM
Little Nemo Little Nemo is offline
Charter Member
 
Join Date: Dec 1999
Location: Western New York
Posts: 78,864
Quote:
Originally Posted by UltraVires View Post
Further, when a spouse of a felon owns firearms, she is frequently advised to keep them locked up with the only key in her possession so that her spouse is not charged with this constructive possession.
Quote:
Originally Posted by UltraVires View Post
There is no "safe storage" law for people who live with felons.
This seems to be a contradiction.
  #24  
Old 09-19-2018, 05:27 PM
Quercus Quercus is offline
Guest
 
Join Date: Dec 2000
Location: temperate forest
Posts: 6,962
I'm not sure that making a 2nd Amendment right argument is necessarily a winner. One can analogize to other rights, e.g. the Fourth amendment, too. In general, if there's no probably cause that I'm involved in a crime, I have my 4th Amendment right to not have my nightstand searched by the police. But if I'm married to, and living with, someone where there's a mountain of probable cause that they possess evidence of a crime, my own innocence isn't going to keep my nightstand from being searched (absent evidence that it's locked and my spouse never had access to it... but that gets back to the key part of the OP, doesn't it?).

Or, in general, I have the right to travel within the United States and hang out with whomever I want. But if my spouse is a convicted felon (particularly on parole), their rights to do so may be limited. I don't think it's a violation of my right to marry if we can't travel together anywhere we wish.
  #25  
Old 09-19-2018, 09:07 PM
x-ray vision's Avatar
x-ray vision x-ray vision is offline
Charter Member
 
Join Date: Oct 2002
Location: N.J.
Posts: 5,812
Quote:
Originally Posted by UltraVires View Post
Let's say I have a prescription for oxycodone and the bottle is in the medicine cabinet. Is my wife in constructive possession of a controlled substance without a valid prescription? If I have beer in the fridge are my kids now minors in constructive possession of alcohol?
I doubt there are any cases where there have been charges like that. I know that there are cases where someone under 21 has been charged with constructive possession of alcohol, but not when they're apparently as innocent as the oxycodone and beer examples above.

You wrote in the OP:

Quote:
It is pretty well known that in addition to actual possession of a firearm by a conviction felon, he can also be convicted for what is known as "constructive possession" in that he knew: 1) that the firearm was present, and 2) he had the ability to exercise dominion and control over it..

It is well established, for example, that a gun in the nightstand of a couple, one a felon, the other not, will be deemed in the constructive possession of the felon.

...


If anyone dispute the above, I will be happy to provide cites.
Can you provide cites where someone has been found to be in the constructive possession of a firearm in equally innocent situations?
  #26  
Old 09-19-2018, 09:38 PM
Grestarian Grestarian is offline
Member
 
Join Date: Aug 2011
Location: Garage & Lab
Posts: 1,408
Quote:
Originally Posted by UltraVires View Post
Okay. I stand corrected, although that seems as odds with Heller's fundamental holding. How can you pass a law mandating "safe storage" of firearms yet have them available for "immediate" self-defense?

No matter, we are far afield here of my question in the OP. There is no "safe storage" law for people who live with felons. The spouse further has the right to keep firearms in the house for ready self-defense.

How does one do that without subjecting herself or her spouse to arrest?
The final quotes for #15 and #16 above would suggest the felon's spouse must either keep the firearm in direct bodily possession or, when choosing not to have direct control of the owned firearm(s), store it (them) in a container which is not accessible by the felon. There are plenty of storage devices constructed and sold specifically to limit access to firearms either via key, digital combination, or biometric sensor locks. The felon's spouse would be advised to purchase one or more of such storage devices and utilize it, with further admonition to keep the key, code, or biometric programming set-up unavailable to the felon.

- - - -

My mother-in-law's neighbor had such a situation to deal with: Her younger son went to jail and she bought a gun fearing his 'friends' might come around to harass her. When the son got out of jail, he insisted on living 'at home again' until he could get on his feet with a job and his own place. She could not divorce him and would not force him to live homeless in the mountainous regions of New Mexico. In fact, she was worried he would be sent back to jail just for living in a house where there was a gun present. She started noticing that, whenever she came home from work, a different box in the garage seemed to have been opened (years of dust was no longer covering it). She told her son she no longer had the gun and that she had lied when she told him she had bought it, knowing he would tell his friends -- who never did come around to harass her -- but he spent months picking through the garage before moving out on his own.

--G!
  #27  
Old 09-19-2018, 10:57 PM
Sloe Moe Sloe Moe is offline
BANNED
 
Join Date: Jul 2018
Posts: 380
"If that be the eyes of the law then the Law's a bachelor!"
  #28  
Old 09-20-2018, 12:34 AM
Ambivalid's Avatar
Ambivalid Ambivalid is online now
Guest
 
Join Date: Jun 2011
Location: In my head
Posts: 13,232
Quote:
Originally Posted by UltraVires View Post
Okay. I stand corrected, although that seems as odds with Heller's fundamental holding. How can you pass a law mandating "safe storage" of firearms yet have them available for "immediate" self-defense?

No matter, we are far afield here of my question in the OP. There is no "safe storage" law for people who live with felons. The spouse further has the right to keep firearms in the house for ready self-defense.

How does one do that without subjecting herself or her spouse to arrest?
It sounded like they said that while the "right to keep firearms in the house for ready self-defense" was burdened by these "safe storage" laws, the burden of their legality wasn't catastrophic and was outweighed by the greater good coming from it. The fact that the laws allow on-the-person posession of guns to be ready for immediate use seemed to be the justification for upholding the legality sufficient not to infringe upon 2nd Amendment rights.

(This is actually responding with the understanding that there are in fact safe storage laws in place for spouses of felons)

ETA: IAdefinitelyNAL

Last edited by Ambivalid; 09-20-2018 at 12:37 AM.
  #29  
Old 09-20-2018, 10:03 AM
UltraVires UltraVires is offline
Guest
 
Join Date: Jul 2007
Location: Bridgeport, WV, US
Posts: 13,975
Quote:
Originally Posted by Little Nemo View Post
This seems to be a contradiction.
It's not. There are no affirmative laws which require "safe storage" from felons. There is a mish mash of court decisions which seem to, at times, allow a spouse to keep firearms in a house with a convicted felon so long as certain ill-defined procedures are followed, but you may end up having to argue to a jury that what spouse did was okay.

That is different than an affirmative law which says that if you do X, then you are legit. To analyze it to the First Amendment, such ill-defined standards cause a "chilling effect" on Second Amendment rights because a spouse must temper her Second Amendment rights in an unknown fashion.

Further, as noted above, the law is not applied like a safe storage law for children. I am not charged as an aider and abetter nor are my children charged with constructive possession of my guns, alcohol, and prescription medication even though they can access them.
  #30  
Old 09-20-2018, 03:33 PM
x-ray vision's Avatar
x-ray vision x-ray vision is offline
Charter Member
 
Join Date: Oct 2002
Location: N.J.
Posts: 5,812
Quote:
Originally Posted by Folly View Post
Heck, Heller disagrees with him about safe storage laws being constitutional.
Quote:
Nor, correspondingly, does our analysis suggest the invalidity of laws regulating the storage of firearms to prevent accidents. Heller, supra at 632, 128 S.Ct. 2783
That's not "Heller" disagreeing with the OP; that's a dissenting judge making a claim regarding "our analysis" and not judgement. I'm not so sure all the other judges would agree with him.

Quote:
Originally Posted by UltraVires View Post
There is a mish mash of court decisions which seem to, at times, allow a spouse to keep firearms in a house with a convicted felon so long as certain ill-defined procedures are followed, but you may end up having to argue to a jury that what spouse did was okay.
Can you post examples? Court decisions don't allow anything. They do, however, set examples for future court cases regarding how laws are interpreted. It is the laws that allow or disallow things. Let's take a look at these court cases so we can discuss.
  #31  
Old 09-20-2018, 03:39 PM
Folly's Avatar
Folly Folly is offline
Guest
 
Join Date: Aug 2004
Location: Chicago! (no more burbs)
Posts: 2,070
Quote:
Originally Posted by x-ray vision View Post
That's not "Heller" disagreeing with the OP; that's a dissenting judge making a claim regarding "our analysis" and not judgement. I'm not so sure all the other judges would agree with him.
Incorrect. It is in section E IV of the main opinion as delivered by Scalia. In that section he is talking about the dissenting opinions.
  #32  
Old 09-20-2018, 07:51 PM
kaylasdad99 kaylasdad99 is offline
Charter Member
 
Join Date: Sep 1999
Location: Anaheim, CA
Posts: 30,122
Quote:
Originally Posted by UltraVires View Post
That's the whole question in the OP. Yes the gun is technically "available" to the felon spouse, but the law says possession and not availability. It seems like it would be against public policy that if my spouse is convicted of a felony, I then have the choice of forfeiting my second amendment rights or divorcing my spouse.
You're delimiting your options either too narrowly or too broadly (I'm not a law-talking guy, so I don't really know which adverb applies). A marriage does not have to be dissolved in order for the partners to domicile separately. Conversely, it does not have to remain intact in order for them to remain domiciled together.

As to the "forfeiture" of your second amendment rights per Heller, maybe this "gotcha" you seem to believe you've discovered is more of an indicator that the decision handed down in Heller was too narrowly (or broadly) written.
  #33  
Old 09-20-2018, 10:48 PM
Little Nemo Little Nemo is offline
Charter Member
 
Join Date: Dec 1999
Location: Western New York
Posts: 78,864
Quote:
Originally Posted by UltraVires View Post
It's not. There are no affirmative laws which require "safe storage" from felons. There is a mish mash of court decisions which seem to, at times, allow a spouse to keep firearms in a house with a convicted felon so long as certain ill-defined procedures are followed, but you may end up having to argue to a jury that what spouse did was okay.

That is different than an affirmative law which says that if you do X, then you are legit. To analyze it to the First Amendment, such ill-defined standards cause a "chilling effect" on Second Amendment rights because a spouse must temper her Second Amendment rights in an unknown fashion.

Further, as noted above, the law is not applied like a safe storage law for children. I am not charged as an aider and abetter nor are my children charged with constructive possession of my guns, alcohol, and prescription medication even though they can access them.
Are you saying people have been arrested for having a gun in the house when there are no laws prohibiting this? Because I find that surprising and would like to see some cites.
Reply

Bookmarks

Thread Tools
Display Modes

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is Off
HTML code is Off

Forum Jump


All times are GMT -5. The time now is 08:33 AM.

Powered by vBulletin® Version 3.8.7
Copyright ©2000 - 2018, vBulletin Solutions, Inc.

Send questions for Cecil Adams to: cecil@straightdope.com

Send comments about this website to: webmaster@straightdope.com

Terms of Use / Privacy Policy

Advertise on the Straight Dope!
(Your direct line to thousands of the smartest, hippest people on the planet, plus a few total dipsticks.)

Copyright © 2018 STM Reader, LLC.

 
Copyright © 2017