Can State prohibit member of hate group from buying guns?

[ShadowsEye]

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.

I'm saying that truthfully answering that question does not qualify as providing incriminating evidence against your self.

The question on the form is not asked in a judicial setting.

 

[Spats McGee]

Ah. Thanks for the clarification, ShadowsEye.

 

[Sam1911]

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

That really doesn't matter -- the form does NOT ASK if you are a member of a "HATE GROUP."

It asks if you are a member of a group that is plans and advocates VIOLENCE to overthrow the government or VIOLENCE to deprive others of their civil rights.

So the NJ AG could declare the Girl Scouts a "hate group" and it wouldn't change the answer to this question.

 

[RetiredUSNChief]

I'm saying that truthfully answering that question does not qualify as providing incriminating evidence against your self.

The question on the form is not asked in a judicial setting.

So, does this mean that this official government document cannot be used as incriminating evidence against the person? Hmmm...

I agree that it's not asking the quesiton in a judicial forum. But then, the local LEO asking you questions at the police station isn't doing so in a judicial forum either.

It asks if you are a member of a group that is plans and advocates VIOLENCE to overthrow the government or VIOLENCE to deprive others of their civil rights.

I agree that this is what the question asks. And I most certianly agree that I don't want guns in the hands of such people.

But who determines what those groups are, and when they actually cross the line? One could say that a Jeffersonian, or Jeffersonian organization, would fall under such a definition. Thomas Jefferson was quite vocal adamant about the rights of the people to take arms up against a tyranical government, if that was required. In fact, he even advocated rebellion every 20 years or so (though I honestly think this was an exageration to make a point).

If a person or group takes a conditional stand that they are willing to go the route of the Founding Fathers if need be in order to affect a change to an oppressive government really deserving of this?

We fought a Revolutionary War over this. We fought a Civil War over this. The Civil Rights Movement was rife with this.

Some, indeed even our Founding Fathers, would say that this is the whole point of guaranteeing the right to keep and bear arms to ALL citizens...to make sure that the government is ultimately kept in check when all else fails.


Note to people on this:

I am not advocating the violent overthrow of government...nor am I advocating for groups who support this. I'm simply pointing out that violence or the threat of violence, whether we like it or not, is how the people ultimately protect their own rights and lives, whether that be against individuals or governments.

I've got to actually go do some work now...but I'll be really interested in seeing the responses later today.

 

[Sam1911]

But who determines what those groups are, and when they actually cross the line?

Well, THEY themselves do, when it comes right down to it. They either advocate violence to overthrow the government and/or advocate violence to deprive others of their rights, or they do not. The form isn't giving you a list of organizations the state accuses of this behavior. It asks you if you belong to a group that -- in your experience -- does this.

One could say that a Jeffersonian, or Jeffersonian organization, would fall under such a definition. Thomas Jefferson was quite vocal adamant about the rights of the people to take arms up against a tyranical government, if that was required. In fact, he even advocated rebellion every 20 years or so (though I honestly think this was an exageration to make a point).

Certianly so. And it is not lawful (in NJ) to buy a gun if you belong to a group that actively plots violent overthrow of the government.

For that matter, a lot of other legal penalties would apply as well, up to and including a treason conviction. Might even hang you for it!

Jefferson didn't say it would be LEGAL under such a government to take up arms against it.

If a person or group takes a conditional stand that they are willing to go the route of the Founding Fathers if need be in order to affect a change to an oppressive government really deserving of this?

We fought a Revolutionary War over this. We fought a Civil War over this. The Civil Rights Movement was rife with this.

Some, indeed even our Founding Fathers, would say that this is the whole point of guaranteeing the right to keep and bear arms to ALL citizens...to make sure that the government is ultimately kept in check when all else fails.

Yes. But you're going to be breaking a whole lot more laws than just an illegal gun purchase if you go down that road, so it seems like a resoundingly moot point.

 

[Spats McGee]

I'm saying that truthfully answering that question does not qualify as providing incriminating evidence against your self.

The question on the form is not asked in a judicial setting.

So, does this mean that this official government document cannot be used as incriminating evidence against the person? Hmmm...

I agree that it's not asking the quesiton in a judicial forum. But then, the local LEO asking you questions at the police station isn't doing so in a judicial forum either.

The judicial setting is not the issue. It's the fact that (the State will argue) no one is being compelled to answer the question. Besides, the A5 has never been held to apply to documents, as far as I can remember.

 

[Texan Scott]

There is a difference between holding controversial opinions and being a member of a hate group. Being a member of a hate group with a history of criminal indictment for crimes related to their organization could arguably be grounds to deny firearms under federal RICO laws. If they can demonstrate (or one were stupid enough to answer 'yes') that the person is a member of a known CRIMINAL ORGANIZATION, then sure, they cold make a good case for that. That said, anyone who would knowingly provide weapons to the Brotherhood deserves to lose their FFL (and their freedom IMO, if selling the weapon to a known criminal organization makes them accessory a priori to a crime.)

 

[bushmaster1313]

have you ever been a member of a group that approves the commission of acts of violence . . .

There is so much wrong with a government agency asking this question before you can exercise a Constitutional right.

For example, what if you used to be a member of a religious group and you left it because you believed that religion approved the use of violence, even though you and none of the members of your particular group committed any. Answer the above question in the affirmative, as you must, and your application is denied and you have to convince a New Jersey before you can ever buy a gun in New Jersey.

 

[Onward Allusion]

Guys, please don't pounce on a freakin' example. It was only an example. Believe me, some folks out there do believe that Tea Party folks are fringe elements and whether true or not, in their minds, they equate Tea Party folks to bigoted, closed minded, lunatics who take our constitution to an extreme interpretation. The Tea Party scares the crap out of them (whoever them is) and if it was up to them, Tea Party folks would not be allowed to own guns.

BTW, did I say that it is what *I* believe???

I could have easily said - Jewish Defense League, Neo-Nazi Party, or even Greenpeace! Think about it - if you belong to a group where some members advocate a violent overthrow of X-Y-Z, but you do not, should you automatically be prevented from exercising your constitutional right?

 

[Alaska444]

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?

Not a hate group at all my friend. Get real. Tea Party folks are simply those that 30 years ago were called patriotic.

 

[rcmodel]

I'd have a real hard time answering that question retch there.

Heck, the NRA is a hate group in some liberal politician anti-gun propaganda circles.

rc

 

[zxcvbob]

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

But it's not a dead end. The Southern Poverty Law Center has the Tea Party on their published list of "hate groups".

Who gets to make that determination?

 

[basicblur]

Heck, the NRA is a hate group in some liberal politician anti-gun propaganda circles.

Yup - Google Southern Poverty Law Center + NRA for some 'interesting' reading.
BTW - one of the first threads I came across stated the NRA had called the BATFE "jack booted thugs". If I'm not mistaken, was that not a democratic Congressman that originally made that comment?

Hey, as an NRA member, I'm over it.
After all, I prefer those cheap (pragmatic) Casio watches, which I understand probably puts me on a potential terrorist list somewhere...

 

[Onward Allusion]

zxcvbob

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

But it's not a dead end. The Southern Poverty Law Center has the Tea Party on their published list of "hate groups".

Heh, finally - someone who knows what they're talking about. That's right - Tea Party -

Y'all don't believe? (not you zxcvbob) Go to http://www.splcenter.org and do a search.

So it bears the question - if the SPLC considers the Tea Party a source of hate/violence - who the heck decides what is a violent group??? THAT is the point! Is it guilty by association? Guilty until proved innocent? Think people...

 

[Onward Allusion]

Alaska444
Not a hate group at all my friend. Get real. Tea Party folks are simply those that 30 years ago were called patriotic.

You don't have to tell me that. I know that the Tea Party isn't a hate-group. However, that isn't the point.

All it takes is the following:

#1 - A legitimate group (e.g SPLC) identifying a particular group as a hate group or one that promotes violence or has elements within that promotes violence.

#2 - The State siding with opinion of said legitimate group.

#3 - Individuals who associate with such group is stripped of their 2nd.

That's the point...

 

[EMNofSeattle]

You don't have to tell me that. I know that the Tea Party isn't a hate-group. However, that isn't the point.

All it takes is the following:

#1 - A legitimate group (e.g SPLC) identifying a particular group as a hate group or one that promotes violence or has elements within that promotes violence.

#2 - The State siding with opinion of said legitimate group.

#3 - Individuals who associate with such group is stripped of their 2nd.

That's the point...

Well no, because the form isn't asking if you're a member of a hate group, you're sweating you're not trying to violently overthrow the government. If you're a member of the TEA party you can answer that question "no" in good faith

 

[WardenWolf]

They wouldn't even try to enforce that "hate group" provision. That'd get shot down so fast in Federal court it's not even funny, and they know it, too. Even New Jersey would know better than to actually try to use it. There is countless precedence showing you need to display individual criminality in order to disqualify a person, and that mere membership in a group does not suffice.

 

[RetiredUSNChief]

The judicial setting is not the issue. It's the fact that (the State will argue) no one is being compelled to answer the question. Besides, the A5 has never been held to apply to documents, as far as I can remember.

I don't understand the part of your statement which says "It's the fact that (the State will argue) no one is being compelled to answer the question."

OK, in the strictest sense a person isn't "compelled" to answer the question. However, if they DON'T answer the question, then the consequence is denial of their "right to keep and bear arms" under the second amendment.

So it's really being posted "Answer...or else!"



Now, as someone else pointed out, what if the person was, at one time, a member of such a group but didn't participate in any planning or activities directly involved with such activities? Or if they were, at one time, a member and when such activities came to light they left the organization? Or what if they were a member, and even participated in some such planning and activities, but "saw the light" and moved on with their lives to live a more productive life as a member of society...never having had any legal proceedings taken against them?

I don't mean to nit-pick this by providing tailored circumstances which are exceptions. Suffice it to say that guilt by association is not the same thing as guilt by commission.

However, if there are no criminal acts documented against the individual and there are no judicial findings of guilt to be found in the records, then why would any individual be expected to answer such a question?

The logic behind such a question is to gather "probable cause" from the individual himself in order to deny that person the right to purchase and own firearms.


@Sam1911:

You bring up some excellent points. However, before any of these other legal penalties can be brought about, there has to be a conviction. Even sedition requires a conviction in a court of law to enact penalties against a person.

 

[Colonel]

If the SPLC considers the Tea Party a source of hate/violence - who the heck decides what is a violent group?

Fortunately not the SPLC ... yet.

 

[Carl N. Brown]

When Communist black civil rights leader Bob Williams was under siege by the KKK in Monroe NC aided and abetted by a county sheriff who rode escort with the KKK, the NRA gave Williams a civilian marksmanship club charter to set up a self-defense rifle club. And when Williams wanted to be repatriated from China to the US, some say the NRA helped get Nixon on board with returning Williams to the US. He spendt his last years at university as an academic expert on China.

Let hate-haters wrap their knee-jerk liberal brains around that one.

Truman Nelson, People With Strength. The Story of Monroe, N.C., 37 p., N.Y. Committee to Aid the Monroe Defendants, n.d. (1962 or 1963?).
http://www.old-yankee.com/rkba/pws.html

 

[Sam1911]

Think about it - if you belong to a group where some members advocate a violent overthrow of X-Y-Z, but you do not, should you automatically be prevented from exercising your constitutional right?

Certainly a thorny question, but at some point YES, you can be aiding and being a material supporter of an organization that does/promotes violence and you certainly can become criminally implicated through your association. You may be able to avoid the worst legal consequences if you can sustain that you had no idea of your group's activities, maybe.

But it's not a dead end. The Southern Poverty Law Center has the Tea Party on their published list of "hate groups".

Who gets to make that determination?

Again, two points: 1) The question asked does not say "HATE GROUP." It asks if you belong to an organization that promotes violence to overthrow the government or violence to deprive others of their civil rights.

Absent ANY EVIDENCE of calls for violence, it doesn't matter what some looney bin fringe group CALLS anybody. Even if the State itself -- as unlikely as that surely is -- declared the flippin' TEA Partiers to be a "Hate Group" that STILL wouldn't disqualify you on the form. Unless there is the VIOLENCE element present, it is irrelevant.

2) This question isn't giving you a checklist and saying THESE GROUPS MAKE YOU OFF LIMITS. It is asking if you, to your knowledge, belong to any organization that does these things. So, if your local chapter of the Girl Scouts has started plotting to assault Welsh-American people to keep them from voting, and you're a member, you'd be disqualified even though the State has not declared them to be anything negative.

On the other hand, if you are a charter member of the "Society for Sitting Around Hating Mongolians," but are waaaay too timid and lazy to ever suggest any violent action against anyone -- the State may consider your organization to be a "hate group" but that won't disqualify you.

 

[Sam1911]

#1 - A legitimate group (e.g SPLC) identifying a particular group as a hate group or one that promotes violence or has elements within that promotes violence.

#2 - The State siding with opinion of said legitimate group.

#3 - Individuals who associate with such group is stripped of their 2nd.

That's the point...

Ok...but in some sense, that's always a risk of any association at all. Any association COULD be or become a criminal enterprise and you may be implicated and/or legally tied up in that group's negative outcomes. But just saying so doesn't make it so. Before anyone gets stripped of any rights, there would have to be some proof of this criminal conspiracy. (Or, as you're self-selecting here on the form, you'd have to have some knowledge of those misdeeds occurring, and you'd have to then be answering honestly and denying your own ability to purchase.)

This does seem to be quite a moot point as WardenWolf suggests, and rather a silly thing to even put on the form. It would be a mighty honest violent bigot indeed who self-selected out of buying a firearm because he just couldn't bring himself to deny his affiliations on the form.

And by the time the State would get around to charging him for lying on that document, he'd already have to be in such deep kimchi for serious felonies that the perjury there would be only a drop in the ocean.

 

[Sam1911]

Now, as someone else pointed out, what if the person was, at one time, a member of such a group but didn't participate in any planning or activities directly involved with such activities? Or if they were, at one time, a member and when such activities came to light they left the organization? Or what if they were a member, and even participated in some such planning and activities, but "saw the light" and moved on with their lives to live a more productive life as a member of society...never having had any legal proceedings taken against them?

These certainly are valid and troubling points. Usually on a form like this there is a following section which asks, "If you answered "Yes" to any of the above, please provide explanation below:" or words to that effect. The NJ form does not have such a provision, and thus seems ripe for legal challenge on these exact grounds. The first question notes that even convictions for criminal acts can be expunged, so it stands to reason that a court (some court, somewhere, though perhaps it would have to be the Federal District court) would have to agree that a past association that has been clearly and demonstrably broken would not be able to stand as a disqualifier.

From a more immediately practical standpoint, the form does not then say "PROVE IT!" Unless the State is data mining all these forms and cross-referencing against data banks of known members of various groups identified as having violent inclinations (if there are such groups identified officially by the State) then even accusing anyone, let alone convicting, of perjury based on that answer would be a torturous ordeal indeed.

 

[vaherder]

The govt

Loves to have you fill out forms etc and certify the answwers are true when you sign the form or documents. The reason they do is if you lie they can then charge you with falsyifying govt docs etc and this can bring any previous questionable conduct you had that might have been mitigated by the passage of time current. Your 1040s are completly accurate and true right? Thought so!

Remember a Federal law enforcement agent can lie and manipulate the truth when interviewing you but you cant do the same. Congress can lie to us but you cant lie to Congress when giving testimony. Many members of Congress have lied on the floor of their respective chambers.

Many years ago I was asked to testify before Congress but being a first class jerk I refused to swear the info I was giving was true. I said you all can lie to me with impunity so I might just do the same.

 

[Carl N. Brown]

New Jersey: "Are you presently, or have you ever been a member ...."

Joseph McCarthy: "Are you now, or have you ever been a member ...."

And in accepting my Godwin Award. I would like thank those who fueled my overzealous political vigilance: George Orwell, Aldous Huxley, Aleksandr Solzhenitsyn, Ayn Rand, James Mitchner, Stephen Vincent Benét, Ray Bradbury, ....