Catch .22LR, or "No Guns For You!"

Great Debates
21

Just to be clear, you’re saying that the courts should treat every gun/ammunition law–every encroachment on the right to bear arms–with the same scrutiny[sup]*[/sup] as First Amendment issues?

I don’t need a license or permission to publish a work.
Are you saying all licensing/registration laws should have been deemed unconstitutional?

I can write or say virtually anything (save very limited exceptions).
Are you saying that I should be able to own any type of firearm, and any type of ordinance?

Blah blah blah…

I’m not trying to hijack this, but that sounded like you took a rather severe position and wanted to either clarify or understand that that’s what you really meant.

[sup]*Note: layman’s idea of scrutiny, not the legal term of art.[/sup]

22

No, no – I’m simply saying that the Second Amendment is not less important than the first. There are constitutionally-permissible restrictions on speech, but we start with the proposition that speech is constitutional and force the government to justify any ban to the contrary. I’m saying we treat the Second in the same deferential way. This doesn’t compel the result that no restrictions are permitted; it merely elevates the concept of the Second Amendment to the same lofty plane enjoyed by the First.

23

What would that entail?

24

They are completely different amendments and I find your suggestion specious at best.

Your suggestion might have merit if the first stated something along these lines:

Or maybe if the second said something like this:

You see the difference?

25

No, because the Second Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.

Guess who said that? (Hints: “black robes” and “Article III.”)

26

IIRC, simple domestic violence is only a misdemeanor conviction, no?

If so, how would some of you feel about a law saying that if you are convicted of a misdemeanor, you can never go to church again, or publish a book, or speak in public?

I won’t speak for Bricker, but that is where I see this gun prohibition forever because of conviction of a misdemeanor to be heavy handed and egregious. Especially now since SCOTUS has said that we have a fundamental right to keep and bear arms.

27

The idea behind the regulation is plainly that someone who has committed domestic violence is reasonably likely to do it again, and the target of that violence needs a chance to survive the experience. There is a wide variety of people who do not qualify for gun licenses on the basis of their behavior; why should domestic attackers not be one of them? The “analogies” you raise do not include such a causal connection and are therefore simply spurious.

Why were the charges dismissed - merely because of a procedural matter, or because the facts did not support them? That is critical to assessing what justice consists of here - a consideration that, once again, and lamentably, can nowhere be found in Bricker’s framing of the question.

28

I don’t have any heartburn in seeing the penalty applied for a misdemeanor conviction of domestic assault.

In this case, he was not convicted; he never had any opportunity to defend himself against the charge. THAT is what can’t stand when balanced against a constitutional right.

29

You convinced me. I have mused over your argument all afternoon and I have to agree with you.

Regarding the OP (which I wasn’t initially responding to, just you desire for parity between the 1st and 2nd amendments), I think the guy should get his guns on constitutional grounds. He was never convicted of a crime and thus I don’t believe his rights should be curtailed on these grounds (I don’t think that rights should be permanently taken away due to crime, if people pay their court mandated debt, they should be full citizens with full rights).

I probably don’t disagree with you on this general issue anyway. I see no reason why a person’s right to own a firearm should be curtailed, even in the case of assault weapons. I don’t have any problems with licensing, waiting periods, simple testing (like hunter safety), child locks, etc… These I don’t see as an undue burden for firearm ownership.

30

I am not sure this should be important. If the charges were dismissed, he is innocent of the crime in the eyes of the law and that is what matters. Unless you are saying that we should punish people without due process?

31

When was the relevant law passed? Assuming it was on the books when M signed the consent decree then I’d say he’s obligated to abide by the terms of it. The decree apparently only stated that he was not admitting wrongdoing and was not found guilty of a crime. But it did not return physical possession of his firearms to him and that invoked the future prohibition on buying new firearms. If M thought that was worth keeping he had the option of taking his case to court. If he had won that case, his firearms would have been returned to him and this case wouldn’t have arisen. But he chose to avoid a trial by making an agreement and this is part of that agreement.

32

One more comment on your post. I understand that there are laws prohibiting felons from buying firearms and I am not really questioning the constitutionality of those laws, but I do question their wisdom: they take away a constitutionally enumerated right on the basis that it will prevent violence when studies have shown that less than 20 percent of criminals obtained their guns in a legal transaction*. Guns are too plentiful in this country for these type of regulations to be successful and the entire thing leaves a bad taste in my mouth… Similarly, the habit of some states to taking away the voting rights of felons even after they have paid their debts to society is, IMHO, anathema to what this country is about (YMMV).

  • For a cite, see:
    [ul]
    [li]J. Ludwig, P. Cook, “Homicide aand Suicide Rates Associated with the Implementation of the Brady Handgun Violence Preevention Act,” Journal of the American Medical Association 284, 5 (2000), 585-591.[/li][li]J.D. Wright, P.H. Rossi, Armed and Considered Dangerous: A Survey of Felons and Their Firearms, Hawthorne, N.Y. 1986.[/li][/ul]
33

Actually, the relevant law wasn’t passed until some years after the consent decree was signed.

34

Not guilty /= innocent. Don’t confuse the two.

The law has purposes beyond simply assessing criminality. Social order, and protection of innocents such as the victims of domestic violence, are included. So, for that matter, is justice, a concept which is distinct from the letter of the law and is pointedly being ignored.

Surely you yourself can think of a variety of examples of restrictions the law places on individuals based on administrative rather than criminal findings, or on simple presumptions based on certain objective facts. A 15-year-old cannot obtain a driver’s license, for example - is that being deprived of due process? A mental patient typically cannot obtain a gun license - is that, either? In this case, the law presumes that someone who has been arrested on a charge of domestic violence has provided probable cause to be considered to have a predilection for committing domestic violence, even if the charge was later dismissed for reasons not directly related to the facts of the case. The law’s intent is plainly to proactively help protect the probable target of future domestic violence of the person who was arrested for it.

The point of asking about the reason for the dismissal of the charges was to ask if the subject really did commit domestic violence, or if he was really innocent and the dropping of the charges was simply a matter of the state’s priorities or a procedural error. The police did get called out, they did do an investigation (however brief), and they did decide he needed to be arrested based on the facts they found, and did remove his ready access to firearms. So that’s the point - is this guy or is he not someone who has shown a predilection for domestic violence, and whose domestic partner has a right implicit in the law to be protected from it by limiting his access to deadly weapons?

The wording of the law recognizes that cases can often be dropped for reasons other than the facts, and it effectively leaves the issuing of gun licenses up to local police departments and their own judgment of the person in question, something that is also quite common. Is that a deprivation of due process?

Your discussion about legality of gun possession is irrelevant. The key data you should consider is the number of domestic violence killings made possible by the perpetrator’s ready access, during a heated argument, to weapons which can readily kill.

You also take it for granted that gun possession is a “constitutionally enumerated right”. You must surely be aware that that point is seriously debated.
So, Bricker. can you provide any insight into that key fact, the reason for the dismissal, or are you withholding that as part of your gameplaying?

35

“Five days? But I’m angry NOW!” - Homer Simpson

36

Forgive me if any of this is repetitive of other posters’ arguments; I’ve only been able to skim the thread past the post quoted immediately below.

Yeah, it’s sloppy drafting, and this particular result was almost certainly not intended by the New Jersey legislature. But for those judges who are chary to impute legislative intent beyond the plain meaning of the statutory text, this is an easy one: his firearm was seized pursuant to the act, it wasn’t returned, and so he doesn’t get a firearms card. Scalia would say that if the legislature thinks that this is an absurd result, then they’re perfectly free to revise the statute, but that he’s not going to stand in their shoes and do it for them, and that this isn’t so facially absurd an outcome as to countenance judicial intervention. At least, I hope he would.

Now, there are other judges – including the one I clerked for, who, while Republican-appointed and personally conservative, adopted a generally common-sense approach to statutory interpretation in the face of possible ambiguity – who would say something like:

“Look, it’s a badly worded statute, and like any other statute, its terms should be applied to the specific facts of the case before the court. Here [and I’m going to assume for our purposes, Bricker, that there aren’t any salient portions of the record that have not been laid out in this thread], because the confiscated firearms have been sold, they cannot be returned to M. by the state. It’s perfectly possible that the state would have returned the firearms to M. had they not been sold, but we can never know. The statute thus requires M., through no fault of his own, fulfill an impossible condition in order to obtain a firearms card. Whatever the legislative intent, it’s not in the interests of justice or public policy to interpret statutory text in this sort of way when there is a plausible alternative reading. Thus, M. should not be foreclosed from applying for a firearms card on the basis of this provision. On the other hand [and again, in the absence of contrary statutory language not laid out in this thread], in considering M.'s application for the card, the state is perfectly free to take into account whatever legitimate factors relating to the circumstances of M.'s 1997 domestic violence charge as it wishes, in order to assess whether he meets all statutory and regulatory criteria for the issuance of a firearms permit. If, having considered the evidence available to it in connection with M.'s application, the state denies the application and refuses to issue M. a firearms card on some basis other than the statutory provision discussed above, then M. is free to seek review of that decision through whatever judicial or administrative channels are available to him, as prescribed by the laws and regulations of New Jersey and the Constitution of the United States.”

Something like that. :slight_smile:

And, of course, there are potential federal constitutional questions about a state’s ability to permanently deprive its citizens of the ability to own a gun simply for being accused of a crime. But that gets into substantive due process, so… :stuck_out_tongue:

37

But this would be true even if the “intent” had been fulfilled – the firearms had been seized pursuant to the DV report, he had been convicted of DV, and the firearms then forfeited to the state.

In other words, what the state intended was once that happened, you would be forever after ineligible for a firearms card. The sequence of events never contemplated by the drafters of the law was something in this vein, where the firearms are seized, and never returned for reasons having nothing to do with a DV conviction or finding.

So no, I don’t see this “impossible condition” as the gravamen of the problem here.

38

Then I’d say he could argue he’s having an ex post facto penalty imposed. If losing the right to own firearms was not part of the law at the time he signed the consent agreement, it shouldn’t be added after the fact.

39

shrug Impossibility isn’t the crux of that paragraph; take it out and the reasoning is just as viable. And I’m kind of on your side on this one.

40

Someone who shoves his wife will reasonably kill her if he has a gun? I think that connection is slight at best.

Why only domestic violence? Is it somehow better if a man walks up and punches a random stranger? He can keep his guns through the whole trial in that circumstance.

What about misdemeanor DUI? That is potentially more dangerous to society as a whole, why no lifetime ban there?

What other misdemeanors should result in a lifetime punishment? I thought that this was a key factor that separated misdemeanors from felonies