Interesting. 7th Circuit, 2nd Amendment and Felons


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ArmedBear
August 6, 2010, 03:59 PM
The 7th Circuit upheld the law that prohibits felons from possessing firearms, in the specific case of US vs. Williams.

http://sentencing.typepad.com/sentencing_law_and_policy/2010/08/seventh-circuit-rejects-asapplied-second-amendment-challenge-to-922g1-but-suggests-a-nonviolent-felo.html

However, they also wrote that since Williams was a convicted violent felon, he was not a good test case. It actually appears they wanted to encourage future challenges by non-violent felons:

And although we recognize that 922(g)(1) may be subject to an overbreadth challenge at some point because of its disqualification of all felons, including those who are non-violent, that is not the case for Williams. Even if the government may face a difficult burden of proving 922(g)(1)’s “strong showing” in future cases, it certainly satisfies its burden in this case, where Williams challenges 922(g)(1) as it was applied to him.

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Sebastian the Ibis
August 6, 2010, 06:31 PM
Kudos to the 7th Circuit for recognizing that he was not a good test case.

Courts have spent the last century or so shredding our second amendment rights because all they have been getting is the wrong test cases. Murderers Robbers and Rapists with nothing to lose were the protagonist in every single case until Dick Heller and Shelly Parker showed up. Thank god the 7th has finally realized the atrocious body of law that had developed because of this and have clearly put aside the issue to consider another day.

Fortunately the NRA seems to be realizing this too, and is getting better at letting quality cases go forward and set the precedent.

TexasRifleman
August 6, 2010, 06:38 PM
I have always wondered how different the world might be if Miller had been a righteous upstanding citizen with a good legal team. It is sad that so many restrictive rulings came about because the case involved a scumbag.

Art Eatman
August 6, 2010, 07:09 PM
Not so much that Miller was a scumbag as it was that he'd died during the time of review by SCOTUS--and no attorney was present.

TexasRifleman
August 6, 2010, 08:12 PM
Not so much that Miller was a scumbag as it was that he'd died during the time of review by SCOTUS--and no attorney was present.

Oh he was still a scumbag, bank robbery and moonshine running were his passions but yes, if his lawyers had at least shown up it might have helped :)

Amazing that so much has been done to gun owners when the case they base it on was never even argued before the Court. It is a little encouraging to see this Circuit Court at least acknowledge that there may be some difference between a mass murderer and a broker who went too far with a stock tip he heard at a bar.

Zoogster
August 6, 2010, 08:20 PM
I have always wondered how different the world might be if Miller had been a righteous upstanding citizen with a good legal team. It is sad that so many restrictive rulings came about because the case involved a scumbag.

Most case law in the US is decided by cases involving scumbags, including many that decide the limitations or protections given by Constitutional Rights. In the case specifically, the scumbag's rights.
If the court sides against the scumbag, then every citizen loses some Constitutional protections from then on.

Only recently with lawyers who intentionally create conflicts of law and other legal maneuvering do you end up with good guys in court.
Most of the people regularly going through the court system are scumbags. A small percentage of the population make up a large majority of the criminal cases.
This is bound to mean that when a conflict of law does arise in the small minority of cases it is most likely going to be a scumbag involved because the sheer numbers favor that scenario.

Most of the rights you have were defined when a scumbag appealed a case and the right was more thoroughly defined by a higher court.
For example the often heard Miranda Warning police are now supposed to give every person arrested or questioned in the nation came about because Ernesto Miranda, a rapist, who signed a confession to kidnapping and raping a woman...was never informed that he had a right to be silent and have an attorney present.
So every time you hear police recite "You have the right to remain silent..." (hopefully not because it is you being arrested) it was someone who kidnapped and raped an innocent 18 year old girl, and had a history of sexual offenses, whose case was overturned on appeal that resulted in the requirement of officers to inform you of your rights (which in turn also reminds officers of citizens' rights because they have to recite it all the time.)
(He was later retried and convicted without his confession as evidence.)

I could go on and on with examples of clarified rights which were only defined because the court decided the government had exceeded its authority in the treatment of some scumbag.
It is almost never a Heller, where some decent guy intentionally created a situation to go to court, and then the Supreme Court actually agreed to hear the case (which it does on a discretionary basis.)

4sooth
August 6, 2010, 08:39 PM
Zoogster--so true! Here in Louisiana a favorable firearms related decision (State v Ferrand) came from an illegal entry, search and seizure of a felon's dwelling when the police saw him standing on his porch merely holding a hand gun. They entered, searched his house and found cocaine and firearms. La. Supreme Court tossed the conviction because police admitted they had no probable cause to enter the house. And a bad guy walked.

General Geoff
August 6, 2010, 08:50 PM
Better for a bad guy to walk, than for a good guy to be put away.

Zoogster
August 6, 2010, 09:25 PM
Zoogster--so true! Here in Louisiana a favorable firearms related decision (State v Ferrand) came from an illegal entry, search and seizure of a felon's dwelling when the police saw him standing on his porch merely holding a hand gun.


Our current right in California to have a loaded firearm on private property which is fenced in or closed to the public (physically requires going through a gate or barrier) is similarly defined by such a case.
A guy was standing in a fenced yard and had a loaded gun on him. He ran inside where he was found to have cocaine.
The weapon charges were found invalid because he was in a fenced in area of the yard, and the subsequent finding of the cocaine in the home dismissed because the search was not legal since the individual had not been breaking any law by having a loaded concealed firearm.
Needless to say the facts point to it being a cocaine dealing scumbag.

This was People v. Strider.


On December 5, 2006, at approximately 6:20 p.m., Deputy Jason Bates and his partner, Deputy William Zollo, were on routine patrol in Compton in their police cruiser. Bates observed Strider and another man standing in the fenced front yard of a single family house located at 1356 Schinner Street, near the porch. A wrought iron fence ran along the entire front and east side of the property, connecting with a solid wood fence. There was a gate in the middle of the wrought iron fence. To get to the house via the front door, one had to enter through the gate. A third man had just entered the yard, and was standing next to the gate, which was open. Bates did not know Strider or the other two men. He was aware that the house was a “known Southside Crip gang hang out” and that the owner of the residence produced rap music “in the back.” There had been shootings in the area. Strider looked directly at the officers, turned to his right, and quickly walked to the front door of the residence. Bates observed Strider‟s face and the front half of his body.

When Strider turned, Bates observed the butt of a chrome and black handgun protruding from his left rear pants pocket. Bates immediately exited the patrol car and ran after Strider. Strider entered the house and slammed the front security door, which Bates could see through. Bates followed, immediately opened the door, and observed Strider quickly walking towards the kitchen. Bates told Strider to stop. Strider dropped a baggie containing a substance resembling rock cocaine on the kitchen floor, and then complied with Bates‟s demand. Bates retrieved a loaded, chrome and black, Smith and Wesson .40-caliber, semiautomatic handgun from Strider‟s pocket. The deputies handcuffed Strider, and Bates recovered the cocaine. Another man was already in the house. In response to Bates‟s query, the other man stated that he lived at the house, but Strider did not.



So a likely gang member in Compton (infamous bad area) at a location known as a hang out for gang members and producing rap music, in possession of a loaded concealed handgun and crack cocaine is where we get our rights clarified!

Since he was in a gated yard (determined to not be "open to the public" everything was thrown out. It is now clearly legal for all California citizens to carry loaded (concealed or unconcealed) guns around in any area gated off from the public, where the public has to open a door or gate to enter.
(An ungated private yard is considered "open to the public" under case law and it would be serious charges under PC12031 and PC12025.)

Thank you cocaine enjoying/dealing Compton Crip gang member! :neener:
Had the court decided against him the right of every person in California to have loaded firearms on private property would have been lost. It would have become a crime to have a loaded or a concealed firearm even on gated property in a rural location in the middle of nowhere.
Fortunately the application of the law was not altered because it was a cocaine possessing gang member, and we all retained our rights in the state.
This is why judges must see beyond who the individual is in the case, and instead see what is and is not proper application of the law.
If we would have had simpleton judges who simply saw the criminal (who will probably be responsible for many crimes in the future) and wanted to be "tough on crime" and remove the scumbag from the streets and made a decision based on the defendant rather than the law, we would have all lost our rights due to the case law precedent.

Zoogster
August 8, 2010, 03:53 PM
Back to the OP post though. I think it would be a good thing if they rethought the prohibitions on felons and by conclusion misdemeanors as well.

The term felony once implied primarily violent crime and now has grown to encompass all sorts of things, even various technicalities someone has to research to even know they are illegal.
Including things judges don't even give people much of a sentence for because they are minor.
Anything they feel like giving people probation for and a short time in jail probably shouldn't have been deemed a felony to begin with.
For example one statistic shows only about 41% of those convicted of a felony actually go to prison for it, clearly showing the crime in question was obviously not of a more serious nature.

I don't think many of the career scumbags would get through the years of probation/parole before committing another crime or a violent crime.
So would remain prohibited anyways.

Most of the felons in the United States are felons for drug offenses according to the statistics. Felony drug arrests total nearly as high as all other arrests combined.
A study on statistics awhile back showed nearly a third of the felony drug offenders had never been convicted of another felony previously.


So while career repeat offenders make up most of the case load in the courts, a significant number of felons overall are first time drug offenders. There would also be felons for various technicalities.
People familiar with gun laws know many of the technicalities that takes a lot of time to become familiar with, and there is similar technicalities in other areas of the law unrelated to firearms.



I certainly think the government having the means to legally deprive people of a right originally intended to discourage tyranny by government is a great contradiction that is inconsistent with the original Constitutional purpose.

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