Can State prohibit member of hate group from buying guns?

[bushmaster1313]

NJ Certificate of eligibity (see item 9):

http://www.njsp.org/info/pdf/firearms/sp-634.pdf

Are you presently, or have you ever been a member of any organization which advocates or approves the commission of acts of violence, either to overthrow the government of the United States or of this State, or to deny others of their rights under the Constitution of either the United States or the State of New Jersey?

Now that the Right to Keep and Bear Arms is recognized by Supreme Court to be an Individual Right, can New Jersey prohibit members of hate groups from buying guns?

Can New Jersey even ask this question?

 

[RetiredUSNChief]

Looks like this one is for the courts.

In my opinion, the answer is "no". There is no conviction for a criminal act and therefore no formal procedures (read: due process) by which an individual may have any of his rights removed by law, as would happen for a felony conviction, for example.

Here's hoping this gets challenged hard and fast in the court system...because the next step is to expand upon these limitations to include more and more restrictions. And to expend upon the definitions for what constitutes membership to these organizations and what constitutes advocating or approving acts of violence.

It's frightenly open ended and broad based as it is.

EDIT:

I just went back through this...as part of an investigation into a person's legal eligibility to purchase/own a firearm, it's my opinion that this information may be used to guide an investigation to determine if the individual has actually committed a felony act. By this, I mean CONVICTED of such. However, it's extraneous information because if the person HAS been convicted of such, then there is a legal record of it which can be found when the person's criminal record is looked up.

It's my opinion that it's up to the state to prove the individual CAN'T have a permit...not that the individual must do this for them by providing information which hasn't been documented in a court of law.

It's a Catch-22 question: If you answer "yes", the obvious implication here is that you will not be allowed to purchase/own a firearm. If you have been a member of such an organization and you answer "no", and their investigation reveals otherwise, then the implication is you lied on an official document and that you will not be allowed to purchase/own a firearm for that reason.

And if they don't provide a list of such organizations, how is one to know what the state considers to be such? Technically, I suppose they can present a case for just about any organization if they want, simply by using the expedient of exerpts from various speaches and documents by members of an organization and claiming it is representative of the organization.

 

[Onward Allusion]

Not to turn this into a political debate

Not quite a hate group, although some would argue otherwise, but can't that be said of some Tea Party folks??? If this isn't already in the courts, this darn well should be. What's the cliche? Slippery Slope?

 

[Sam1911]

In my opinion, the answer is "no". There is no conviction for a criminal act and therefore no formal procedures (read: due process) by which an individual may have any of his rights removed by law, as would happen for a felony conviction, for example.

Well, the federal 4473 form asks "Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?" If you answer "Yes" you don't get a gun, whether or not you've ever been even arrested, let alone convicted.

NJ seems to be asking a somewhat similar question, which could be rephrased perhaps as, "Are you or have you been part of a criminal conspiracy to commit treason or a violent civil rights violation?"

Just like the drug question on the 4473, they are having you swear to not having committed a certain crime. Or a near-crime, and that's the rub.

It certainly does appear to be a grey area, but only in that it isn't clear what level of participation in such a group would rise to be an arrest-able offense for conspiracy.

 

[Sam1911]

Not quite a hate group, although some would argue otherwise, but can't that be said of some Tea Party folks???

A hate group?

But anyway, the key here would be this:

...which advocates or approves the commission of acts of violence...

Any group that advocates or approves the commission of acts of violence is a criminal group and is going beyond political free speech. Even if it is the Little Sisters of Charity, or the militant hardline wing of the Society of Friends.

 

[beatledog7]

Not quite a hate group, although some would argue otherwise, but can't that be said of some Tea Party folks???

Example?

In the certification as quoted by the OP, I don't see the words "hate group." Did I miss them?

 

[RetiredUSNChief]

Well, the federal 4473 form asks "Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?" If you answer "Yes" you don't get a gun, whether or not you've ever been even arrested, let alone convicted.

NJ seems to be asking a somewhat similar question, which could be rephrased perhaps as, "Are you or have you been part of a criminal conspiracy to commit treason or a violent civil rights violation?"

Just like the drug question on the 4473, they are having you swear to not having committed a certain crime. Or a near-crime, and that's the rub.

It certainly does appear to be a grey area, but only in that it isn't clear what level of participation in such a group would rise to be an arrest-able offense for conspiracy.

This is an excellent point as well. By answering "yes" to such a question, you are effectively admitting on a legal document that you have committed a criminal act without having gone through due process...which includes being advised of your rights before making such a statement.

If a person has a medically documented history of such, this is another matter.

I certainly don't believe that a person addicted to narcotics is the kind of person who needs a gun in his hand, but that's not my point in this. They're circumventing the legalities of due process.

And once you've answered such a question in the affirmative, then there is now a legal record of a confession by an individual to a criminal act which can follow him the rest of his life.

It's a Catch-22 situation that many people use to justify certain actions, similar to the "if it saves just ONE life, then it's worth it" arguments. Anybody who takes an opposing position, for whatever reason, thus looks bad because they must obviously be supporting whatever bad act is being countered.

It's my opinion that if a person already HAS a criminal record or a documented history of, say, certian mental health issues or abusive drug usage, then the state can use that as a documented historical record of a person's actual ACTIONS which may show that they have no business purchasing or owning a firearm.

It is not legal obligation of the individual to provide any other information beyond that. The Fifth Amendment of the U.S. Constitution comes to mind here.

 

[Birch Knoll]

Not quite a hate group, although some would argue otherwise, but can't that be said of some Tea Party folks???

Hmm. Well, let's just see.

Tea Party

• Advocates strict adherence to the Constitution
• Favors spending and tax reduction
• Favors reduction of the national debt and federal deficit

Hate Groups

• Advocates or approves acts of violence
• Advocates overthrow of government
• Favors denying rights of others

Maybe it's just me, but I'm not seeing a lot of overlap here. Hate groups don't seem to have much of a fiscal policy, and the Tea Party and hate groups appear to be diametrically opposed on the issues of lawfulness and respect of the rights of others.

So, I'm gonna go with "no".

 

[Sam1911]

Ok. Let's consider the Tea Party angle a dead-end sidetrack and get back to the question.

 

[gfanikf]

Isn't an FFL allowed the ultimate choice if he doesn't want to sell the gun to someone for any reason? The BATFE has said this decision can't be questioned because of potential political, racial, religious, etc bias subtext, is that correct?

 

[Sam1911]

Yes, the dealer is given pretty much unquestioned lattitude in refusing a sale.

That's a somewhat different issue, though, from the state saying that membership in an organization is a disqualifying factor.

 

[gfanikf]

Yes, the dealer is given pretty much unquestioned lattitude in refusing a sale.

That's a somewhat different issue, though, from the state saying that membership in an organization is a disqualifying factor.

No, I just recall someone at Knob Creek had some Skinheads looking at his stuff and he told them to (well reduced to High Road language) to piss off, which was cool and I had no issue with.

I'm wondering if some might want to try and get dealers to voluntarily agree not to sell people with Nazi Tattoos (one example you can replace with knowledge person belong to a hate group and tons of others). Of course that opens the door to other types of restrictions. There is this grey area of political affiliation being a ban on firearm ownership, but it's not the Government, and is a work around those types of issues.

In the end lord knows I'd never sell to someone I thought had Nazi leanings and I suspect many others here wouldn't.

 

[Spats McGee]

. . . .This is an excellent point as well. By answering "yes" to such a question, you are effectively admitting on a legal document that you have committed a criminal act without having gone through due process...which includes being advised of your rights before making such a statement . . . .

With all due respect, I have to disagree. Nobody has a right to be advised of their various rights before making a voluntary statement, and that's what we have here.

. . . .It is not legal obligation of the individual to provide any other information beyond that. The Fifth Amendment of the U.S. Constitution comes to mind here.

Again, no. The Fifth Amendment to the U.S. Constitution protects a right not to be compelled to testify against oneself, but there's no compulsion here. OTOH, if you want to argue about the propriety of making a person waive one right in order to exercise another, that's a totally different question. It's not a Fifth Amendment question, though.

 

[vaherder]

Eating at Chick Fil A

Might be considered being a member of a hate group this week.

Also remember belonging to, being associated with or sympathizing with an organization that wishes to prevent others from exercising their Consitutional rights and preventing the Federal, state and local govt from performing their official duties can be grounds for the Federal govt to begin the process of to deny or revoke your security clearance. Being a member of most hate groups
would fall into this category.

I am not sure a state govt has the authority but Feds might.

Question is how to confirm someone's membership in a hate group?

Alleged shooter in MN did so by his music etc. Shame this country still has folks who believe in white power. Also a shame he took innocent lives before LE ended his pitful existence.

 

[gfanikf]

Question is how to confirm someone's membership in a hate group?

If talking as a private citizen or say a gun store seller I suspect there are a few ways:
Tattoos
Clothing
Overheard comments

That just in the store of course. With a name and some free time you can find out other ways.

Alleged shooter in MN did so by his music etc. Shame this country still has folks who believe in white power.

Is a good example.

Also a twitter or facebook page with racist comments.

 

[Sam1911]

Ok, but the issue at question is whether the state can make you answer this question -- specifically about being associated/involved in conspiracy to commit VIOLENT acts -- and that's not the same thing as purely free-speech issues of stupid racism.

You could put a huge sign in your front yard that reads, "I hate white people!" and have a tatoo of Mr. Rogers with a circle & slash over him. That's not going to get you disqualified on NJ's form.

But if you're paying dues to the "Movement to Kill White People and Blow Up Da Governmint," that would.

 

[gfanikf]

Ok, but the issue at question is whether the state can make you answer this question -- specifically about being associated/involved in conspiracy to commit VIOLENT acts -- and that's not the same thing as purely free-speech issues of stupid racism.

You could put a huge sign in your front yard that reads, "I hate white people!" and have a tatoo of Mr. Rogers with a circle & slash over him. That's not going to get you disqualified on NJ's form.

But if you're paying dues to the "Movement to Kill White People and Blow Up Da Governmint," that would.

Sounds like the same stuff I had to answer for the character and fitness part of the New York Bar (and I think most states), though it's usually IIRC limited to violent overthrow of the US Government and say just being a Communist isn't enough.

 

[michaelbsc]

Not quite a hate group, although some would argue otherwise, but can't that be said of some Tea Party folks??? If this isn't already in the courts, this darn well should be. What's the cliche? Slippery Slope?

Yeah, slippery slope is soon giving way to thought crime.

 

[Sam1911]

Yeah, slippery slope is soon giving way to thought crime.

BUT NOT WITH THIS.

Again, even hating people and speaking very unpleasant things does not rise to the standard being asked.

The question hinges on conspiracy to commit VIOLENCE.

 

[ShadowsEye]

With all due respect, I have to disagree. Nobody has a right to be advised of their various rights before making a voluntary statement, and that's what we have here.


Again, no. The Fifth Amendment to the U.S. Constitution protects a right not to be compelled to testify against oneself, but there's no compulsion here. OTOH, if you want to argue about the propriety of making a person waive one right in order to exercise another, that's a totally different question. It's not a Fifth Amendment question, though.

You aren't even waiving that right voluntarily, the question isn't being asked in a judicial setting and there are no legal consequences.

 

[bikemutt]

Signature of Receiver
If other than NJ, this transfer must go through a licensed firearms dealer.
I hereby certify that the answers given on this form are complete, true and correct in every particular. I realize that if any of the foregoing answers made by me are false, I am subject to punishment.
Falsification of this form is a crime of the third degree as provided in NJS 2C:39-10c

It appears their could be legal consequences if one is caught lying on this form.

 

[Spats McGee]

You aren't even waiving that right voluntarily, the question isn't being asked in a judicial setting and there are no legal consequences.

I'm not entirely sure I understand your post, ShadowsEye. Are you saying that the form does or does not constitute a 5th Amendment violation? On the one hand, you seem to be saying that the 5th Am right is being involuntarily taken from the person filling out the form, and on the other, that it's not an A5 problem, as it's not being asked in a judicial setting.

 

[gfanikf]

I'm not entirely sure I understand your post, ShadowsEye. Are you saying that the form does or does not constitute a 5th Amendment violation? On the one hand, you seem to be saying that the 5th Am right is being involuntarily taken from the person filling out the form, and on the other, that it's not an A5 problem, as it's not being asked in a judicial setting.

Actually it would be the 14th Amendment if anything if one is discussing the state form vs the 4437.

 

[Spats McGee]

Well, yes, but I seem to recall parts of the A5 being incorporated to the states by way of the A14. When I got into this thread, I was just responding to someone else's A5 assertions.

 

[basicblur]

If I'm not mistaken, did not the Southern Poverty Law Center classify the NRA as a 'hate group'?
Maybe it wasn't specifically classified as a hate group - if not, it was something along those lines (equally rediculous).

I'd be afraid to see who gets to define what is and isn't a hate group.