Man who accidentally shot himself gets over 8 years in prison

[Libertyteeth]

In Montana, if you have served your time for a state felony, all your rights are restored, and you can possess firearms -- unless the crime involved a firearm which was used in the crime. Even then, you can petition to have your rights restored. This seems reasonable to me.

In this case, were I on the jury, there would be no conviction. There might be an acquittal or hung jury, but no conviction.

 

[Fletchette]

"They ain't people, they is crooks."

And having broken the social contract they have no right to make claims upon it.

1) Yes, they are people.

2) Let's talk about this "social contract".

The contract in question here is the one between our government and the citizens. The contract says, "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights,"

The contract, as amended, also says, "A well regulated militia, being necessary for the security of a free state, the right of the people to keep and bear arms shall not be infringed."

It further states, "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."


and,

"...No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."


and


"No Bill of Attainder or ex post facto Law shall be passed"

sooo....


You are saying that:

a) rights are "alienable"
b) keeping and bearing arms may be infringed
c) a person can be held to answer for a crime twice
d) private property can be taken by the government without due process of law
e) citizens do not have equal protection of the law
and
f) all of this can be applied to people who commited offenses many years ago, when felons could own guns upon release from prison.

 

[JohnBT]

"2) Let's talk about this "social contract".

The contract in question..."

Here's a blurb I googled up that explains the social contract I was referring to. I understand that you are using Locke's version. I prefer Rousseau's. Those who harm society and have not fully rejoined it through their own honest efforts, including restitution, it have no basis for a complaint.

Jean-Jacques Rousseau stresses, like John Locke, the idea of a social contract as the basis of society. Locke's version emphasised a contact between the governors and the governed: Rousseau's was in a way much more profound - the social contract was between all members of society, and essentially replaced "natural" rights as the basis for human claims.

 

[JohnBT]

P.S. - since the edit feature doesn't want to work...

"You are saying that:

a) rights are "alienable"
b) keeping and bearing arms may be infringed
c) a person can be held to answer for a crime twice
d) private property can be taken by the government without due process of law
e) citizens do not have equal protection of the law
and
f) all of this can be applied to people who commited offenses many years ago, when felons could own guns upon release from prison."

No, I am not saying that and I don't need you to put words in my mouth thank you very much. Maybe you meant to say that your interpretation of what I believe is such and such. That would be a much better method of discussing a topic than making flat statements.

If a law is bad then we need to work to change it. Is this a great country or what?

 

[Fletchette]

If a law is bad then we need to work to change it. Is this a great country or what?

Yes, it is a great country.

One of the ways citizens can change bad laws is by building a consensus that said law is actually "bad". Slavery was legal until enough Americans decided it shouldn't be and changed it, ultimately by using force.

My opinion (and I recogize your opinion and did not intend to put words in your mouth) is that the laws prohibiting convicted felons from excersizing their right to keep and bear arms, after they have completed their sentence, is a "bad" law. I am working to change it by expressing my opinion.

 

[dojpros1998]

beerslurpy and others:

to convict someone for being a felon in possession of a firearm, the trier of fact (usually a jury) must find three things:
1. The def is a felon (they usually admit this in a form called a stipulation so the jury doesnt get to hear about the number of prior felonies they may have or the facts and circs surrounding them. i.e the defendant has x number of prior felonies for drug dealing, child molestation, rape, murder, felony non payment of child support, felony DUI etc.

2.The firearm affected interstate commerce, which is a fancy way of saying the firearm crossed a state line before the def possessed it and
3. The def possessed (Ownership is not an element. A felon does not have to own a firearm to possess it) it. Possession can be actual ie it is in my pocket or in can be constructive. Constuctive posession means that I have the intent or opportunity to exercise dominion or control over the weapon.


Many non famous felons have been charged and convicted because their "wives" had a firearm collection because the felon had constuctive possession. ie all he had do do was get into his wife's nightstand

Many of those who are charged federally have multiple felony convictions for state crimes where they did little or no time. Indeed, I have prosecuted many defs, who if the had done even a third of their prior dentence(s) they would not have been on the street to even pick up the federal charge. Many of these def are simply destined to do life impriosnment on th installment plan because they choose not to abide by the law.

I'd like to think that good judgement guides most prosecutors most of the time. A wise old man once told me that "just cause its legal don't make it right. As a prosecutor, you can ruin people's lives with a stoke of a pen when you sign their indictment." I try to keep that maxim in mind when I am considering whom to prosecute and on which charge.


Finally, I have no doubt that all the facts as considered by the jury(if applicable) were completely and accurately reported by the newspaper in question.(or not!) Given the length of the sentence, I suspect there is more to the case, this defendnat and his criminal record than meets the eye.

 

[Fletchette]

Many of these def are simply destined to do life impriosnment on th installment plan because they choose not to abide by the law.

This decision gets easier and easier to make as The Law becomes more and more unreasonable. How many people registered their rifles in California? 2%? Most people simply decided not to abide by the law.

A wise old man once told me that "just cause its legal don't make it right.

How about the corollary, "just cause it is illegal doesn't make it wrong."

 

[Fletchette]

I understand that you are using Locke's version. I prefer Rousseau's.

Respectfully, I think we simply have differring core values. The U.S. Constitution was largely written by Jefferson and Madison, both of whom heavily relied on Locke. Rousseau, while sharing some similar beliefs, was opposed to private property and was largely a pre-socialist. Accordingly, I do not accept this side of his philosophy as pertaining to the United States government and U.S. citizens.

 

[beerslurpy]

The convicted man wasnt engaging in commerce or interstate activity of any kind. To say that posessing something that once moved in interstate commerce comprises interstate commerce is a great stretch.

The Supreme Court has wisely observed that since nearly everything moves in interstate commerce at one point or another, there must be some distinguishing characterstic that makes an activity especially related to interstate commerce for congress to regulate it. I beleive the reasoning was that if you failed to do so, EVERYTHING would be interstate commerce and federalism would be destroyed.

If it neither involves 2+ states or commerce it cannot possibly constitute interstate commerce. I think that you could even say that if something does not involve BOTH, then it is not interstate commerce, but the courts havent caught up to common sense yet.

 

[dojpros1998]

beerslurpy
I understand your point. There is no question that interstate commerce has been an continues to be interpreted quite broadly. Nevertheless, the state of the law at this time, at least in the 8th circuit (MO, NE, IA, SD, ND, MN and AR), is that just showing the weapon crossed a state line at somepoint prior to the possession (usually shown by where the weapon was manufactured) is all that is required on this element as defined by the applicable jury instruction and law on the subject. Constituional challenges to Congress' authority to criminalize possession of a weapon by a felon just because it crossed at state line and therby affected interstate commerce have failed to date. See 8th Cir. Pattern Jury Instruction 6.18.922, Committee Comments on same and U.S. v. Lopez 514 U.S. 549(1995).

 

[runswithscissors]

HA HA HA stupid people get what stupid people deserve

Don't really care about that guy. Tough break is all.

"What really makes me mad is that I had a joint case with the Feds on a guy that was making short barreled rifles and full autos in trade for cash and meth, and he got 2 years. What's worse is that I didn't get to keep any of the rifles to "decorate" my office! Imagine an AR-15, with a 12 inch barrel hanging behind my desk, thirty round mag...empty, of course."
Do you not live in a state that would allow this? Sorry

 

[motoman]

This guy is no angel

Name
MARTIN,LARRY C Date of Birth
Oct 27 1966 Race
White Gender
Male
ID Number
00156423 Offender Location
UNKNOWN Function Flag
UNKNOWN Cause Number
CR283191FX
Offense County
Unknown Sentence County
Bollinger Charge
14020990 NCIC offense Code
2299
Offense Description
BURGLARY IN THE SECOND DEGREE CC/CS
CONCURRENT Completed?
YES Sentence Date
May 6 1986
Sentence Min Release Date
Feb 13 1989 Sentence Max Release Date
Feb 13 1991 Sentence Length Years (yyyy)
0003 Sentence Length Months (mm)
00
Sentence Length Days (dd)
00 Probation Term Years (yyyy)
0005 Probation Term Months (mm)
00 Probation Term Days (dd)
00
Probation Date
Jan 6 1984 Probation Type
SES



Name
MARTIN,LARRY C Date of Birth
Oct 27 1966 Race
White Gender
Male
ID Number
00156423 Offender Location
UNKNOWN Function Flag
UNKNOWN Cause Number
CR283-192MX
Offense County
Unknown Sentence County
Bollinger Charge
NCIC offense Code
2399
Offense Description
STEALING CC/CS
PRIMARY SENTENCE Completed?
YES Sentence Date

Sentence Min Release Date
Sentence Max Release Date
Jan 5 1986 Sentence Length Years (yyyy)
0000 Sentence Length Months (mm)
00
Sentence Length Days (dd)
00 Probation Term Years (yyyy)
0002 Probation Term Months (mm)
00 Probation Term Days (dd)
00
Probation Date
Jan 6 1984 Probation Type
SES

 

[Fletchette]

Ok, so this guy stole something...19 years ago!!! That justifies the .gov imprisioning him for an additional 8 years for...shooting himself ?!?

 

[beerslurpy]

Uh..... Wait a minute here....

Lopez succeeded dude. Morrison even expanded upon it.

Lopez: Posession of a firearm inside a school is not related to interstate commerce even if the gun travelled in interstate commerce before the act of posession took place. The gun free school zones act was declared unconstitutional as a result. Scalia danced a jig as the New Deal got its first taste of defeat in 60 years.

Morrison: A raped woman sued her attackers under VAWA, which was overturned in this case.

To quote Rhenquist for the majority:

The Constitution requires a distinction between what is truly national and what is truly local, and there is no better example of the police power, which the Founders undeniably left reposed in the States and denied the central government, than the suppression of violent crime and vindication of its victims. Congress therefore may not regulate noneconomic, violent criminal conduct based solely on the conduct’s aggregate effect on interstate commerce.

I am pretty confident our once-felonious friend falls within the bounds of Morrison and Lopez. It's the conduct explicitly addressed in Lopez and its the same general class of activity addressed in Morrision. The Commerce Clause basis for the law under which he has been convicted is the same as these two overturned laws. Attenuated affects on commerce do not fly anymore.

 

[dojpros1998]

bereslurpy

Lopez is distiguishable because the def in question was not a prohibited person before his possesson and conviction. Lopez was a non felon who possessed a .38 in a school zone. Moreover, the Gun Free School Act that Lopez overturned did not have as an requirement that the weapon possessed in question had itself moved thru interstate commerce. That "defect" was rectified in subsequent versions of the law which have withstood srutiny to date.

In this instant case, the defendant was a felon. The crime occured in MO. In MO, which is in the 8th Cir, that state of the law is such that constitutional challeges to 18 USC 922(g)(1) [prohibition of a felon possessing a firearm] that raise commerce clause arguements have be soudly rejected See e.g. U.S. v. Hill 386 F3d 885(8th Cir. 2004).

One may want the law be something else, but a commerce clause arguement re Felon in Possession has been and continues to be a stone loser.


The def in this case was already a felony.

 

[Fletchette]

The def in this case was already a felony.

Yes, nineteen years ago. Retroactively passing laws is ex post facto and unConstitutional.

A wise old man once told me that "just cause its legal don't make it right.

Again, how about the corollary, "just cause it is illegal doesn't make it wrong."

 

[dojpros1998]

Flechette


I am not sure I understand your ex post facto argument. I believe it been illegal for felons to possess weapons under federal law for more than 19 years such that the law was already on the books before the def became a felon or committed the crime for which he was just sentenced to 8 years.


I have no doubt that there are situations (particularly, but not exclusively, historically) that the corallary "Just because its illegal doent make it wrong" is applicable.

 

[Fletchette]

I am not sure I understand your ex post facto argument. I believe it been illegal for felons to possess weapons under federal law for more than 19 years such that the law was already on the books before the def became a felon or committed the crime for which he was just sentenced to 8 years.

The law prohibiting felons from owning firearms was applied retroactively to those that were convicted of felonies before the law was passed. That is one of several (of which I listed) reasons said law is unConstitutional.

Furthermore, the fact that an illegality may not be "wrong" is very much a contemporary event, not just historical. Many people are having their rights permamently repressed for acts that should not be illegal. For example, who is the "victim" in this crime? No one, unless you count the perpetrator. It is, of course, ridiculous to incarcerate someone for victimizing himself.

 

[dojpros1998]

Fleshette

Please tell me when you believe when the Felon in possesson law was passed such that it has been appplied to defs for conduct that took place before the passage of the law. Can we agree that the law was on the books for at least the last 19 years such that this def was convicted of his underlying felony while the law was on the book?

 

[gc70]

Hey motoman, what's the penalty (if any) for publishing details of a person's criminal record? Or would obtaining the records for publication here fall under misuse of government records?

BTW, my purpose is not to beat up on motoman, but to underscore how easy it is to potentially break the law when we have SO many laws. The number of laws we have and the unevenness in enforcement and punishment make it easy for society to percieve some punishments as too harsh and some as too lenient. That just causes citizens to lose respect for the law. The laws should be clear and the punishment for breaking laws should be certain so that the people can see their fairness and respect the law.

 

[Blueduck]

If the federal prosecutor thought it was so bizarre, why did he prosecute it? There is discretion built into the system at all levels.

The article makes very clear it was "bizarre" because the fool shot himself with a shotgun he claimed was "owned" by his 14 year old son while riding a lawnmower, not because of legal problems with the case.

I wonder if the previous felony was...kite flying

No as previously noted it was burglary, which was made very clear in the article.

Frankly this thread annoys me greatly as people leap to conclusions and throw out their philosopies without seemingly even bothering to read the whole post they are responding to (or in one case even started!).

90% of felon-in-possession cases get prosecuted in State court. Why did the Feds pick on this maroon? They usually only jump into cases that will get them positive publicity!

I'm not sure where your getting this info. Wherever, not in the state this happend in (Missouri). ATF does turndown 90% of slam dunk cases refered to them as being too minor, but in 7 years of working courts I've seen very few state prosecutions in such a sitaution. Either the feds do it or nobody does most of the time. If one burglary was the guys only record I can assure you there is MUCH more to the story as to why the ATF took the case.

 

[Fletchette]

Please tell me when you believe when the Felon in possesson law was passed such that it has been appplied to defs for conduct that took place before the passage of the law. Can we agree that the law was on the books for at least the last 19 years such that this def was convicted of his underlying felony while the law was on the book?

Well, here you go. Check this site out for a bit:
http://www.iand.uscourts.gov/iand/decisions.nsf/0/a17fb23a65bd57db86256c38006606e4?OpenDocument

Most of it is nauseating, but can be summed up as follows. Feds pass Unconstitutional ex post facto gun control law by prohibiting felons to own guns even if they were convicted of said felony prior to the law being passed. States pass similar laws. The felons who are charged with this ex post facto law file suit, lower courts agree, but higher courts uphold law on the arguement that the forbidding of firearms ownership is not a "punishment". Pure Orwellian BS.


snippit:

We find Davis unpersuasive chiefly for two reasons. First, the court assumed an answer to the very questions at issue-- whether the change in Davis' right to possess firearms imposed "punishment." The court simply asserted that it did and the court's conclusion that the change violated the Ex Post Facto Clause necessarily followed. ("Thus, at the time of Davis's 1971 conviction part of his punishment was that his civil rights would be impaired only until he was discharged from his conviction.")


Id. at 125 (internal citations omitted). The Fourth Circuit therefore concluded that the prohibition on firearm possession was not "punishment" and did not violate the Ex Post Facto Clause. Id. at 123.

 

[beerslurpy]

It's not ex post facto beause the criminal act isnt the gaining of a felony but the posession of a firearm, which he did within the past year I expect. Since the law was passed before he was caught posessing the firearm, obviously it isnt retroactive.

Sucks about the 8th circuit. I guess my hope was that they would rule as you predict and that the supreme court would overrule them. Hahaha I just made a funny.

 

[Fletchette]

It's not ex post facto beause the criminal act isnt the gaining of a felony but the posession of a firearm, which he did within the past year I expect. Since the law was passed before he was caught posessing the firearm, obviously it isnt retroactive.

But that wasn't the higher court's arguement. They said that restricting someone's right to keep and bear arms did not constitute a "punishment".

If it is a punishment, but it isn't "retroactive" as you're suggesting, then it is double jeapordy - the person in question is getting punished twice for the same crime (and without due process!). Either way, it is unConstitutional.

 

[dojpros1998]

fleshette

With all due respect, the case you link to is distinguishable as it is as a state prosecution and is only in federal court because the def, after apparantly exausted his state appeal rights, filed a writ of habea corpus pursuant to federal civil law. I believe the citations to the federal case are slightly out of context as they talk about whether changes in the penalty section of the already exisisting felon in possession statute are to be deemed retroactive, not the underlying felon in possession statute itself.

Moreover, while they do not occur often, criminal acts arrising out of the same conduct can often be charged both federally and by state authorities without triggering double jepordy issues becaus the essentials elements of the crime are slightly different. i.e state FIP charges typically do not have an interstate commerce element whereas federal FIP charges do.