Would Incorporation effect the Lautenberg Amendment?


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usmarine0352_2005
July 18, 2009, 07:21 PM
.We know that no state shall "deprive any person of life, liberty, or property, without due process of law." because of Incorportation, which hasn't yet been applied to the 2nd Amendment.




Since with Lautenberg you lose your weapons before you've gone to trial, wouldn't this negate this?

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cbrgator
July 18, 2009, 07:22 PM
It might... but not automatically. It would have to be challenged as being unconstitutional.

Right Wing Wacko
July 18, 2009, 07:33 PM
Challenging Lautenberg should not require incorporation. It's a Federal Law and the 2nd Amendment Already applys to the Federal Government.

usmarine0352_2005
February 27, 2010, 05:15 AM
Challenging Lautenberg should not require incorporation. It's a Federal Law and the 2nd Amendment Already applys to the Federal Government.


Well, obviously it hasn't changed yet.


Will a win in McDonald v. Chicago nullify the Lautenburg Amendment or will it need to be challenged?



Or will even a win in McDonald v. Chicago not nullify Lautenburg?
.

wishin
February 27, 2010, 08:52 AM
As I understand Lautenberg, it prohibits the transporting, shipping, ownership and use of guns and ammo by those convicted of domestic violence, or are under a restraining order for domestic abuse.

McDonald really doesn't change anything in that regard, since government restrictions are, and will continue to be, allowed.

Radagast
February 27, 2010, 09:52 AM
The McDonald case is essentially about the right to keep firearms in the home and wether the second ammendment is incorporated against the states, preventing them from banning the keeping of firearms in the home, just as Heller was about the right to keep firearms in the home in a Federal enclave.

If SCOTUS incorporates the 2nd against the states and sets a standard of review this would have a future impact on a challenge to Lautenberger.

Currently no judicial standard of review has been set for the 2nd. If SCOTUS runs with strict scrutiny then in a future case the govt. would have to argue for a pressing need to keep Lautenberger and that the infringement is not broad, which would be unlikely to hold up in court. If SCOTUS doesn't set a standard of review in McDonald then a future case, potentially a Lautenberger, challenge will do so.
Even if SCOTUS doesn't incorporate the second ammendment against the states the Heller ruling will still hold against the Federal govt. and a future challenge to Lautenberger will be possible.
In Heller the majority opinion said that existing firearms laws are presumptively constitutional. This means a seperate legal challenge is needed for each law. Lautenberger will be on the list for CATO/Second ammendment foundation/ Gura/ NRA, but may not be at the top of the list.

I think you will find the priorities of the legal teams in order are
Right to keep arms in the home.
Right to bear arms in public.
removal of restrictions on classes of firearms (handguns, 'assault weapons')
Removal of unnecessary restrictions (waiting periods, storage requirements, one gun a month, etc.)
Review of restricted classes of person (Lautenberger, misdemeanors, etc).

Review of restricted classes of person will be last. It's a lot easier to argue for hand picked good guys (the plaintiffs in Heller and McDonald were heavily vetted) than for persons already convicted of a crime that equates with scum of the earth for those who don't think.

There is already a challenge to Lautenberger occurring however, I can't remember the full details and wether it is still going through. A man disqualified under Lautenberger was arrested and convicted for possession of a firearm he admitted was for hunting. He challenged the conviction on 2nd Ammendment grounds. There may be more info in some of the older threads.

Radagast
February 27, 2010, 10:09 AM
Current cases discussed here: http://volokh.com/2010/02/23/the-second-amendment-and-domestic-violence-misdemeanors/

thesecond
February 27, 2010, 10:54 AM
....

mp510
February 27, 2010, 11:51 AM
A few points:
1. The Laughtenburg Ammendment is a federal law. Incorporation isn't necessary to attack it. That said, the Supreme Court has upheld Laughtenburg even in light of Heller.
2. The fifth ammendment has a similar due process clause to the 14th ammendment, accept it does not apply those rights against the states.
3. Pay particular attention to the "....without due process" wording. This class of prohibited persons have all received due process. They were found guilty, beyond a reasonable doubt, by a jury of their peers OR they plead guilty (or nolo contendere) and thus admitting guilt or at a minimum admitting that they could not or would not b e contesting the state's charges.

thesecond
February 27, 2010, 12:38 PM
....

usmarine0352_2005
February 27, 2010, 02:41 PM
.
As I understand Lautenberg, it prohibits the transporting, shipping, ownership and use of guns and ammo by those convicted of domestic violence, or are under a restraining order for domestic abuse.

McDonald really doesn't change anything in that regard, since government restrictions are, and will continue to be, allowed.




You do not need to be convicted to lose your firearms via Lautenburg.



You only need to have someone say you scared them, abused them or hurt them, they place an Order For Protection or such against you and you lose your rights. (And then you go to court later).



That's the problem with Lautenburg. There really is no due process to losing your rights and you have not been convicted yet.

legaleagle_45
February 27, 2010, 02:52 PM
Since Lautenberg is a federal statute, incorporation will have zero effect on it. Incorporation would subject state and municpal laws to the 2nd amend. Federal laws are already subject to the 2nd

thesecond
February 27, 2010, 04:33 PM
....

sfc_mark
February 27, 2010, 06:13 PM
You only need to have someone say you scared them, abused them or hurt them, they place an Order For Protection or such against you and you lose your rights. (And then you go to court later).

That's the problem with Lautenburg.(sic) There really is no due process to losing your rights and you have not been convicted yet.

The restraining order must have been issued by a judge at a hearing of which you were notified and in which you had the opportunity to participate. It's still weak, and Lautenberg needs to be repealed, but it is due process under the law.

usmarine0352_2005
February 27, 2010, 07:23 PM
Since Lautenberg is a federal statute, incorporation will have zero effect on it. Incorporation would subject state and municpal laws to the 2nd amend. Federal laws are already subject to the 2nd



So no matter what, were SOL and are stuck with Lautenburg being constitutional?
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legaleagle_45
February 27, 2010, 07:27 PM
So no matter what, were SOL and are stuck with Lautenburg being constitutional?

Lautenburg has not been challenged on 2n Amend grounds in front of SCOTUS as of yet. It will probably be a while begore a challenge reaches them.

usmarine0352_2005
February 27, 2010, 10:42 PM
.
Lautenburg has not been challenged on 2n Amend grounds in front of SCOTUS as of yet. It will probably be a while begore a challenge reaches them.



So what do you think our chance of getting it over-turned is?

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divemedic
February 28, 2010, 08:03 AM
Pretty low.

RP88
February 28, 2010, 08:51 PM
Pretty low.

This. There is a due process in regards to Lautenberg. The only course would to somehow prove that it fits as 'cruel and unusual punishment'.

Even then, keep in mind that a domestic violence conviction IS expungeable. The only problem with that is the time and the money.

CAPTAIN MIKE
February 28, 2010, 09:05 PM
The Supreme Court ruled 2 years ago the 2nd Amendment protects an individual's right to keep and bear arms. On Tuesday morning in Washington D.C., the Justices of the Supreme Court will be asked to finally extend the full Bill of Rights--including the Second Amendment--to ALL the states. FINALLY.

This is THE Case we have been waiting for.

orionengnr
February 28, 2010, 09:09 PM
Would Incorporation effect the Lautenberg Amendment?
No, but it might affect it....:rolleyes:

divemedic
February 28, 2010, 10:05 PM
The Supreme Court ruled 2 years ago the 2nd Amendment protects an individual's right to keep and bear arms. On Tuesday morning in Washington D.C., the Justices of the Supreme Court will be asked to finally extend the full Bill of Rights--including the Second Amendment--to ALL the states. FINALLY.

This is THE Case we have been waiting for.

and will have exactly NOTHING to do with Lautenberg. The courts have long held that your rights can be taken from you through due process. Your voting right, right to freedom, peaceably assemble, and others are fair game through due process.

Being that the McDonald case is about applying 2A to the states and Lautenberg is a Federal Law, the McDonald case has absolutely nothing to do with it.

Ohio Gun Guy
February 28, 2010, 11:49 PM
^^^ I disagree.....kind of. If the court rules it is incorporated against the states and it requires strict scruitiny (like the others on the BOR) then the Lautenburg amendment could be chalenged because with other fundimental rights, the default is the right, and there must be a much more rigerous process for removing the right.

I wouldnt want to be the trial case for it, but jsut saying.....

StarDust1
March 1, 2010, 12:04 AM
.




So what do you think our chance of getting it over-turned is?

.
Actually, it's never going to happen! The 2nd Amendment is not a right, it's a privilege, if it was actually a right Lautenberg simply could not exist, nor would we be waiting on the outcome of McDonald for illumnination on the "right to store a firearm in your home but never bear it!"
It's not a right when you are subject to the "willful & intrusive scrutiny" of the state before even being allowed to purchase a firearm, let alone "bear" it about your person as you wish to!
Finally, it's simply not a right when the state has the power to defrock you of said "right" at literally their whim...Sorry, but the truth is plain as daylight, Lautenberg, NFA, GCA, ect..all add up to privilege.

Ohio Gun Guy
March 1, 2010, 12:21 AM
Yes....but thats why this is in court. The "Provelage" has been assumed by gun grabbing politicians, now its our turn to assert our RIGHT.

cbrgator
March 1, 2010, 12:28 AM
Sorry, but the truth is plain as daylight, Lautenberg, NFA, GCA, ect..all add up to privilege.
Although the laws right now are both numerous and invasive, no matter how much we fight them there will always be SOME gun control whether we like it or not. Don't bet on the machine gun regulations, background checks or licenses for CCW being repealed anytime soon.Our rights rights are not absolute. The First Amendment is regulated (considerably less than the Second, but still), the Fourth Amendment has been regulated all but out of existence. RKBA is our right, but it's not an absolute right under the law. Not here, not anywhere. It's a tough pill to swallow, but that's just how it is.

divemedic
March 1, 2010, 05:59 AM
^^^ I disagree.....kind of. If the court rules it is incorporated against the states and it requires strict scruitiny (like the others on the BOR)

Keep dreaming. If the court were going to rule based on strict scrutiny, they would have done so during Heller. The court already said that they did not want to overturn long standing prohibitions.

cbrgator
March 1, 2010, 09:31 AM
Sorry, but the truth is plain as daylight, Lautenberg, NFA, GCA, ect..all add up to privilege.

I think that bans on criminals and mentally handicapped would pass even strict scrutiny. Those laws are both compelling state interests AND narrowly tailored. Same with bans in sensitive places. That's all you need for strict scrutiny.

StarDust1
March 1, 2010, 11:38 PM
I think that bans on criminals and mentally handicapped would pass even strict scrutiny. Those laws are both compelling state interests AND narrowly tailored. Same with bans in sensitive places. That's all you need for strict scrutiny.
The mentally ill/handicapped are an issue I am open to, defrocking men & women of the ability to defend themselves with a firearm, in perpetuity, for a past non-violent crime is a human rights abuse as far as I'm concerned.

withdrawn34
March 2, 2010, 12:07 AM
It also completely runs around the real question - if someone who, say, committed violent felonies obviously cannot be trusted with a gun, then what in the world are they even doing walking on the street?

"Well, sir, we know you're a convicted raping murderer, but you're free to roam the streets. But please don't buy a gun from a gun store!"

The point is, there shouldn't be laws prohibiting guns for violent offenders because violent offenders shouldn't be out of prison (or maybe even alive), period. The question shouldn't even exist.

Frank Ettin
March 2, 2010, 01:32 AM
For all those who feel strongly that felons ought not be permanently barred from possessing guns, the relevant provisions of the GCA are ripe for judicial challenge now that Heller has been decided. And assuming the McDonald goes our way, similar state statutes could also be attacked in court. It's just a matter of finding the right plaintiffs -- and a very large amount of money. Any volunteers, either as plaintiff or to furnish the financing?

Personally, I think a court is likely to sustain at least some of the classes of prohibited persons. So any serious change will require a political solution. And I doubt that easing any restrictions is going to be politically viable.

Anyway I'm not going get all worked up because felons lose some rights, including the right to bear arms -- too bad, but they did the crime and the loss of rights is part of the result.

Committing a crime shows a flaw in one's character. One has demonstrated, by committing a crime, a reason to question his integrity, honesty, judgment, impulse control, sense of responsibility and/or trustworthiness. The world is full of people who are subject to the temptations and stresses of living in this world and still don't commit crimes. Serving one's time doesn't magically repair one's character or demonstrate that he has become more responsible or trustworthy than he was before he committed the crime.

Is that a perfect result? No, but we'll have to wait for Heaven for perfect justice. And overall, I don't see it as necessarily unreasonable that part of the total price tag for a felony is loss of gun rights in perpetuity.

Can people change? Sure, but merely having completed one's sentence is not evidence of having changed. It is, and should be, the felon's burden to demonstrate that he has changed. There are procedures whereby a felon may seek restoration of his rights, and that is how he can demonstrate that he has changed. But until he has shown that he has changed, it's not unreasonable for the rest of us to be somewhat guarded about how much we trust him.

usmarine0352_2005
March 2, 2010, 02:00 AM
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Committing a crime shows a flaw in one's character. One has demonstrated, by committing a crime, a reason to question his integrity, honesty, judgment, impulse control, sense of responsibility and/or trustworthiness. The world is full of people who are subject to the temptations and stresses of living in this world and still don't commit crimes. Serving one's time doesn't magically repair one's character or demonstrate that he has become more responsible or trustworthy than he was before he committed the crime.





I think some felonies should bar use of arms.




Someone who has numerous speeding tickets or even one dangerous driving citation can receive a felony.


Does that mean they shouldn't be able to hunt or protect themselves?



Violent crimes, do I agree?

Yes.
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Frank Ettin
March 2, 2010, 02:08 AM
...Someone who has numerous speeding tickets or even one dangerous driving citation can receive a felony.


Does that mean they shouldn't be able to hunt or protect themselves?...Someone who has such lousy judgment or self control that he racks up enough speeding tickets to get hit with a felony or who draws a felony conviction for driving a deadly weapon in a dangerous manner doesn't seem to me to be a prime candidate for responsible gun ownership.

usmarine0352_2005
March 2, 2010, 02:13 AM
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At 18 years old my brother was driving 80mph in a 65. He could have been cited with wreckless driving, or careless driving because he failed to see the officer behind him. He was driving a surburban that was full so the rearview mirror didn't work and he hadn't seen him in his sideview mirrors. The officers thought he was trying to run and called a pursuit. Once they realized it was my brother who was harmless and perhaps not to bright they let him go with a ticket.


I guess he should never be able to hunt again, or have a gun for self-defense, huh?
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cbrgator
March 2, 2010, 02:24 AM
All I was saying was that the criminal/mentally ill/sensitive places laws would most likely pass strict scrutiny. I didn't take any personal stand on the issue. I'm just saying that its a futile argument because Even Scalia would uphold those laws.

Frank Ettin
March 2, 2010, 02:43 AM
...I guess he should never be able to hunt again, or have a gun for self-defense, huh?...If I understand you correctly, he was not, in fact, convicted of a felony. So his situation is irrelevant.

In any case, I stand by my comments. Picking up a vehicular felony generally calls for some fairly seriously irresponsible, dangerous and/or reckless conduct.

divemedic
March 2, 2010, 09:50 AM
Possession of 6 sex toys in Texas- felony. Five toys OK though.
Tripping a horse in Florida- felony

Frank Ettin
March 2, 2010, 10:31 AM
...Possession of 6 sex toys in Texas- felony. Five toys OK though.
Tripping a horse in Florida- felony... So what? If you want to keep your gun rights, limit yourself to 5 sex toys in Texas and don't trip horses in Florida. It's up to you. Know the law and conduct yourself accordingly. (And lobby your legislatures.)

But it is what it is. If you think it should be different, there are ways to change things.

sfc_mark
March 2, 2010, 10:34 AM
I guess he should never be able to hunt again, or have a gun for self-defense, huh?

Reckless driving is a misdemeanor...irrelevant to the discussion.

IllHunter
March 2, 2010, 11:03 AM
when I saw The First Amendment is regulated (considerable less than the Second, but still), the Fourth Amendment has been regulated all but out of existence. I flashed back to my youth, ok I flashed way back to my youth. When we were picking side to play baseball, one guy would throw a bat and another would catch it. Those to "captains" would alternate gripping the bat to the top and when the last grip was in place, the one without a grip would get one kick at the bat, held just by the last grip. If the last grip was tenuous or the kick was vicious enough or the grippers attention was unfocused the bat would fall. This gave first choice to the kicker. If the grip held, the gripper picked first.
The 2nd is our bat. We strive to keep the first pick but opposing forces fight us at each grip.(Oh by the way, it was allowable to insert a two finger "V" grip on the bat handle if it was judged that there was insufficient room to get the last "good" grip.) Sometimes we lose the kick, sometimes we win, but we always must keep gripping. To stretch the analogy, the opposing forces have used 400lb bats, glue on their hands and karate champions to kick. We have a good grip now and the SCOTUS is preparing to kick. Thanks for the memory tickle.:)
Lautenberg and others are watching to see if they will come in to play!

StarDust1
March 2, 2010, 11:29 AM
All I was saying was that the criminal/mentally ill/sensitive places laws would most likely pass strict scrutiny. I didn't take any personal stand on the issue. I'm just saying that its a futile argument because Even Scalia would uphold those laws.
All I'm saying is it hasn't been a right for an awfully long time now, rights that are easily stripped, even pre-emptively stripped, aren't really rights, they are privileges, and privileges are easily taken away.

divemedic
March 2, 2010, 11:39 AM
So what? If you want to keep your gun rights, limit yourself to 5 sex toys in Texas and don't trip horses in Florida. It's up to you. Know the law and conduct yourself accordingly. (And lobby your legislatures.)

But it is what it is. If you think it should be different, there are ways to change things.

Including having the SCOTUS find that prohibiting felons from owning firearms is an unconstitutional infringement on the RKBA?

What happens when it is declared a felony to speak ill of the President? Or to own books? Will it still be my responsibility to follow such an unconstitutional law? OR can I have it struck down? The BOR, along with the rest of the constitution, is there to protect me from the tyranny of the majority.

IllHunter
March 2, 2010, 12:12 PM
We must concurr that we have reached a critical mass. That so many rights have been eroded, so many unjust laws have been promulgated that we look to the right to keep and bear as the bulwark agains further erosions in our liberty. We must see this as the un-losable battle. The line in the sand, our Thermoplye. If June comes and SCOTUS finds for Chicago, I forsee the streets of Chicago afire. Alright that happens every other summer so I'm not clairvoiant, just optimistic.

Frank Ettin
March 2, 2010, 12:35 PM
So what? If you want to keep your gun rights, limit yourself to 5 sex toys in Texas and don't trip horses in Florida. It's up to you. Know the law and conduct yourself accordingly. (And lobby your legislatures.)

But it is what it is. If you think it should be different, there are ways to change things.
Including having the SCOTUS find that prohibiting felons from owning firearms is an unconstitutional infringement on the RKBA?Nothing guarantees you your desired result.

...What happens when it is declared a felony to speak ill of the President? Or to own books?...Let us know when that happens.

...Will it still be my responsibility to follow such an unconstitutional law? OR can I have it struck down? The BOR, along with the rest of the constitution, is there to protect me from the tyranny of the majority. You're apparently very dissatisfied with the way things work here. Is there any place you'd prefer?

Ohio Gun Guy
March 2, 2010, 12:44 PM
^^^^Against my better judjment, I'm jumping in here.

Grabbing quotes and firing off little remarks is fun, but you offer no other fact, position.....etc.

Why do you disagree, what is your position?

Frank Ettin
March 2, 2010, 12:48 PM
My position was fully stated in post 31.

divemedic
March 2, 2010, 01:09 PM
Let us know when that happens.

It has, just with the 2A instead of the 1A. Or do you think that the second is not as important as the first?

You're apparently very dissatisfied with the way things work here. Is there any place you'd prefer?

Here, but with a government that treats its founding documents as more than toilet paper. That's OK, though. That is what this case is about. One step at a time, we are eliminating the enforcement of your statist attitude.

Committing a crime shows a flaw in one's character.

and when a man trips a horse or owns one too many sex toys, what flaw is displayed that makes it necessary to deprive a man of his civil rights?

The problem that I have is that some felonies have no business being felonies. Copying a movie, while a crime, is in no way worthy of depriving a person of their rights for the remainder of their lives.

It is a felony to gamble online in Washington State.

In Texas, it is a felony to own more than 5 dildos.

Smoke pot in your home in Texas- misdemeanor, unless your house is less than 1000 feet from a school (including college), day care, school bus stop, church, or government building, then it is a felony.

So a college kid, being stupid, smokes a joint in his dorm, or owns 6 sex toys, is a felon and has his rights taken away for life? No more voting, hunting, or even protecting his own life? To me, that is insanity.

It is easy for some to say "Don't break the law, then." But really, why not just use that logic to make exceeding the speed limit a felony?

Instead of a blanket law that prohibits felons from EVER owning a gun, why not make it a part of sentencing? Something like:

Nonviolent felony: Loss of gun rights for a period not to exceed 5 years.
Violent felony that does not include a weapon, first offense: Loss of gun rights for a period of not less than 3 years, nor more than 15 years. Second offense: Not less than 10 years, nor more than 25 years
Violent felony involving a weapon: loss of gun rights for a period of not less than 7 years, up to life
In no case will a felon have his firearm rights restored while on probation, parole, or within 1 year of being released from prison.

This makes more sense to me than "zero tolerance" and allows the court to have the punishment fit the crime.

May your chains rest lightly upon you.

Frank Ettin
March 2, 2010, 02:18 PM
...Instead of a blanket law that prohibits felons from EVER owning a gun, why not make it a part of sentencing? ....The short answer is "because things aren't that way."

If you think things ought to be that way, and enough people agree with you, you collectively can do something about it. Set up a fund to finance litigation and lobbying for changes to statutes.

divemedic
March 2, 2010, 04:25 PM
If you think things ought to be that way, and enough people agree with you, you collectively can do something about it. Set up a fund to finance litigation and lobbying for changes to statutes.

Of course, we could recognize that many such "felony gun" laws are unconstitutionally restrictive, and get a court ruling that way. That is why we have a Constitution. You seem to be laboring under the assumption that we live in a Democracy.

There is a chance that such laws are denying people their right to due process.

Frank Ettin
March 2, 2010, 07:08 PM
If you think things ought to be that way, and enough people agree with you, you collectively can do something about it. Set up a fund to finance litigation and lobbying for changes to statutes.
Of course, we could recognize that many such "felony gun" laws are unconstitutionally restrictive, and get a court ruling that way. That is why we have a Constitution. You seem to be laboring under the assumption that we live in a Democracy....Of course what's more important than what you "recognize" is what the court decides. In any case, you need enough people who will go along with your view to be able to marshal sufficient money to finance the effort. It will be expensive, and without enough support you'll lack the wherewithal to carry it through.

...There is a chance that such laws are denying people their right to due process. How do you figure? If someone is convicted and exhausted (or declined to pursue) available appeals, he has had due process.

But your due process argument has more weight in the case of domestic restraining orders. At least temporary restraining orders involve ex parte proceedings or proceedings on shortened notice. Deprivation, even temporarily, of a fundamental right without sufficient notice to properly prepare and a full adversarial proceeding seems vulnerable to a due process challenge.

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