2nd Amendment + 8th Amendment challenge to laws?

[Yellowfin]

I asked Alan Gura this question today (yes, THE Alan Gura) and though he's the big dog on the matter, he didn't have much thought on it. Is there much to challenge enforcement of the NFA and various states' firearms laws on their enforcement via the 8th Amendment, being that the punishment for them outrageously exceeds any possible claim of the "crime"? A $10 sear made after '86, an inch too short on a barrel, or a magazine holding a single round too many can be used by a state or feds to ruin your life forever. Why is it that it is rarely if ever emphasized not only that the law itself is BS, but the punishment for it as prescribed by law is WAY out of line? It's like a $50,000 parking ticket.

Interestingly enough, the 8th Amendment IS incorporated already, whereas the 2nd is still waiting to be.

 

[Dr. Fresh]

Interesting question. Makes sense to me, but IANAL.

 

[Gamera]

Hey I've never thought of it like that before... Good question!

 

[Zundfolge]

Seems to me one could use the 8th Amendment to challenge the punishment end of the law, but not the law itself. These things would still be felonies that would permanently cost you your right to own a gun.

 

[Dirtpile]

Sad to say it but the 8th ammendment (like the fourth of late) has been ignored on several fronts for decades.
I agree with Zundfolge that it probably won't do much good since such infractions are still felonies. Though this is not the only crime that is a felony and shouldn't be in most cases, it is a good example.
What we really need is legislation on the federal level that bans state/local laws that go beyond the NFA of '68 (Might have to give 'em the '86 bill too but that's not a huge sacrifice for most people) and also protects the 2nd from any changes.
Would be cool if it were a felony to propose an AWB, wouldn't it?

 

[Yellowfin]

It already is a crime to propose an AWB in PA and TX. It's called official oppression, and in PA it's a 2nd degree misdemeanor and in TX it's a felony, in the same category as rape.

 

[GlockFan1954]

I recall a case about a man unintentionally owning a fully auto gun and he got a huge sentence anyway the supreme court didn't strike it down but thomas wrote a good dissent

 

[Dr. Fresh]

It already is a crime to propose an AWB in PA and TX. It's called official oppression, and in PA it's a 2nd degree misdemeanor and in TX it's a felony, in the same category as rape.

Seriously? That's awesome! You have a source?

 

[Yellowfin]

Texas code Title 8 39.03 and Pennsylvania title 18 SS 5301. Looks like I wasn't quite 100% right for TX (or they changed it recently), class A misdemeanor rather than a felony...but multiple counts would stack up.

Sec. 39.03. OFFICIAL OPPRESSION. (a) A public servant acting under color of his office or employment commits an offense if he:

(1) intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful;

(2) intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful; or

(3) intentionally subjects another to sexual harassment.

(b) For purposes of this section, a public servant acts under color of his office or employment if he acts or purports to act in an official capacity or takes advantage of such actual or purported capacity.

(c) In this section, "sexual harassment" means unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature, submission to which is made a term or condition of a person's exercise or enjoyment of any right, privilege, power, or immunity, either explicitly or implicitly.

(d) An offense under this section is a Class A misdemeanor.

§ 5301. Official oppression.
A person acting or purporting to act in an official capacity
or taking advantage of such actual or purported capacity commits
a misdemeanor of the second degree if, knowing that his conduct
is illegal, he:
(1) subjects another to arrest, detention, search,
seizure, mistreatment, dispossession, assessment, lien or
other infringement of personal or property rights; or
(2) denies or impedes another in the exercise or
enjoyment of any right, privilege, power or immunity.

Every state needs to get an official oppression law then start smacking around anyone in office who even thinks to attempt any anti gun laws or bureaucratic obstructions.

 

[mp510]

that claim would be insanely far fetched. The nfa isn'gt going anywhere, and 922o most crtainy isn't goin away. Remember, in heller, the court prewtty much comes right out and says- machineguns aren't protected.

 

[Zundfolge]

Yellowfin, there's already a federal statute that does basically what both the Texas and PA statutes do.

http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00000242----000-.html

US Code Title 18, Part I, Chapter 13 § 242. Deprivation of rights under color of law

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.

And I don't think any of these statutes could be used against a politician or other public official for drafting an AWB bill.

 

[Yellowfin]

Why not? That seems face value what that's about. At very least it could be used for enforcing them or interpreting any law to use against citizens that way.

 

[TEDDY]

heller

the heller case was narrow in what it asked for and the SCOTUS ruled on that narrow front.
now the 1934 law was based on the commerce clause,$200 tax but has morfed into some thing else.that might be a way to go as it is not a tax any more but a ban.

 

[legaleagle_45]

Why not? That seems face value what that's about. At very least it could be used for enforcing them or interpreting any law to use against citizens that way.

Because of the qualifier "willfully". A good faith enforcement of existing law, subsequently found to be unconstitutional, is not actionable, nor are the congress critters subject to sanction for passing a law subsequently found to be unconstitutional.

The intent of the federal statute was to reach situations and circumstances similar to those portrayed in the movie Mississippi Burning and based upon a real life incident that occured in 1964. There, a Deputy Sheriff pulled over a car driven by civil rights activists, arrested them for speeding, held them incummicado in the jail, contacted the KKK, and then turned them over to the KKK to be murdered. The deputy used his official postion "color of law" in order to effectuate the arrest and detention of and subsequent murder of the victims.

That is the type of activity the law was intended to reach....

 

[Art Eatman]

True, LE45, but "intent" and actual usage vary. RICO comes to mind.