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First SCOTUS Case After Heller

Discussion in 'Legal' started by Chrome, Apr 30, 2008.

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  1. Chrome

    Chrome Member

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    From the WVCDL Newsletter. This will be big if Heller falls our way. This, like Heller, could open the flood gates of cases presented to SCOTUS.

    Later,
    Chrome...
     
  2. divemedic

    divemedic Member

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    This could also be the incorporation case we have been looking for. I would like to read it. I will read it this week.
     
  3. NukemJim

    NukemJim Member

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    If possible could you please elucidate, if possible, on what aspects of this case might help as far as incorporation of the 2A?:confused:

    Thank you

    NukemJim
     
  4. jlbraun

    jlbraun Member

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    I don't think it's going to be an incorporation case, as it addresses a question of federal law, not state law.
     
  5. Standing Wolf

    Standing Wolf Member in memoriam

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    Someday, if you've ever had a parking ticket, you'll be prevented from keeping and bearing arms.

    We need to stop this Lautenberg dreck.
     
  6. MiddleAgedKen

    MiddleAgedKen Member

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    Interesting case, and could be a good one for the cause of ordered liberty--although if the Court were inclined to dodge the 2A aspects, they might make (can they, if it is not made part of either plaintiff's or defendant's argument?) a ruling on the apparent ex post facto element. As usual, though, IANAL.

    Anything I could add about Lautenberg wouldn't be High Road.
     
  7. mekender

    mekender Member

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    according to what i have heard, the Cato Institute is planning on filing a challenge to the Sullivan Act on the day of the heller ruling if the ruling is favorable
     
  8. Thernlund

    Thernlund Member

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    Nothing for 70 years, then two in one year. Hmmm... you think the court is trying to get something done before the next president gets his mits on an eventual open slot?


    -T.
     
  9. Jdude

    Jdude Member

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    Interesting theory. I suppose we'll know when one retires and publishes his memoirs.

    Personally I believe the district court split had more to do with it though.
     
  10. Kind of Blued

    Kind of Blued Member

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    This is good news, as every little bit helps, but I can't help but wonder, wouldn't it be more effective and more likely to get to the point where law-abiding citizens have an unadulterated right in the form of the Second Amendment first? Currently, it is bastardized, and I think it needs to be solidified.

    For example, is there anything that could be done to declare a future AWB illegal? The SCOTUS needs to be made aware of the first ban's ineffectiveness and undermining of the Second Amendment's intention to protect the people from a tyrannical government by allowing, and promising in the future, effective means of defense.
     
  11. Draven32

    Draven32 Member

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    Sure, declaring all state AWBs unconstitutional would pretty much do it.
     
  12. Henry Bowman

    Henry Bowman Senior Member

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    This is not a Second Amendment case. The "question presented" is:
    It is a case to define the scope of a "misdemeanor crime of domestic
    violence."
     
  13. ctdonath

    ctdonath Member

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    Bump that. THIS IS NOT A 2nd AMENDMENT CASE!

    That it involves a gun law is merely tangential, the medium upon which the message is carried.

    To rephrase the case's formal question:
    What puts the "domestic" in "domestic violence"?
    This case is about the "domestic" part of "domestic violence", not the "violence" part - and certainly not about the tools used/affected by the latter.
     
  14. Henry Bowman

    Henry Bowman Senior Member

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    The case is more like the Emerson case in that it is challenging the Lautenberg Act. There, the 5th Circuit found that the 2A protects an individual right, but that the Lautenberg Act was a Contitutionally-permitted restriction. The SCOTUS denied cert., letting the ruling stand. Here the defendant lost at the district court and then won on appeal. The DOJ filed a petition for cert. to the SCOTUS and they accepted the case.

    That could mean that they intend not to let the (4th Circuit) court of appeals decision in this case stand -- or something else. Hard to say. My crystal ball is cloudy.
     
  15. rdhood

    rdhood Member

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    Its not high road, but some folks in this forum, such as a certain holder from 1971, needs to read this and realize that you can, in fact, commit a felony without knowing it.
     
  16. lacoochee

    lacoochee Member

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    Doesn't the Federal government imply incorporation of the 2nd amendment when they pass laws that affect ALL states? Aren't they in fact saying that the laws they are passing are reasonable restrictions on gun owners even though the second amendment is pretty clear they cannot pass laws infringing on the right of gun owners to keep and bear arms?

    It seems to me if the Federal government can pass laws affecting citizens in ALL states that the converse is also true that they are bound by the language of the second amendment when they pass a law modifying/restricting those rights in ALL states.
     
  17. ctdonath

    ctdonath Member

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    But it's challenging the initiating criteria, not the outcome. It's asking "does X invoke the penalty of Y", not "is Y a constitutional penalty for X". Emerson ruled that RKBA cannot be revoked without individual due process, and ruled that Mr. Emerson had his individual due process; this case is asking what puts the "domestic" in "domestic violence".
     
  18. ServiceSoon

    ServiceSoon Member

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    This is kind of sublime how the SCOTUS is all about the second amendment.

    This case is all about Ex post facto law. Innocent.

    The SCOTUS always goes off on a tangent. It will be about so much more.
     
  19. NukemJim

    NukemJim Member

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    As always I could be wrong but my understanding is that an ex post facto situation is when you do an act that is legal to do on Monday and Tuesday they pass a law saying that if you do that act that it is illegal and they arrest you for it.

    Lautenburg merely changes the penalty for the act you committed. The act you commited on Monday was illegal on Monday.

    It's just now that you got the parking ticket on Monday that you pay on Tuesday and now on Thursday they change the penalty of the law so that you can never drive again.

    See it is not ex post facto, they just changed the penalty completely legal.:fire::banghead::cuss:

    NukemJim
     
  20. kurtmax

    kurtmax Member

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    Yep. Lautenburg is not Ex Post Facto. It's sure close though. The difference is that the act was already legal when it was commited, so it hasn't made an act in the past 'illegal', just added extra restrictions.

    This is just another reason to never plead guilty to even a misdemeanor charge. Fight it hard if possible. You never know how you might be screwed over in the future.

    I'd also say it'd help not to beat yer wife, but people get convicted with domestic violence for non-violent things even sooooo....
     
  21. Dahwg

    Dahwg Member

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    There is more to this than just ex post facto. First of all, while this case the defendant very clearly was engaged in domeestic violence (DV), not all misdemeanor DV cases are the same.

    It is a very common tactic in the midst of a divorce for one of the spouses (usually the wife) to allege DV. In most states, if DV is alleged, someone has to go to jail. In my case, I plead no contest to avoid the attorney's fees (I was going broke with the divorce attorney to begin with). There was no threats, no physical violence- nothing. There was just an argument and the rookie female LEO decided there was probable cause- though the other, more senior LEOs did not. I did not fight it, and in fact the family court judge saw it for what it was and told her it was sad she was trying to play games like that because it wouldn't work in her court. Unfortunately, since I was not a gun owner at the time, I didn't know the implications that this would have later.

    Fast forward to when I purchased my firearm- NICS background check - Proceed. According to the Feds, I'm OK- they looked into my disorderly conduct (DV-related) and concluded that the specific incident I was charged with under state law was not prohibited according to the Lautenberg amendment. Fast forward again four days ago, I was declined my CCW permit in the state of AZ because of the same Disorderly Conduct violation from 8 years ago. When I called DPS to verify if they considered me prohibited possessor or not, she said, "Since it's a Federal Law, we leave that part of it to the Feds. As far as the state is concerned, using the federal guidelines, you can't be issued a CCW, but since you were cleard by the NICS check, you can continue to OC if you wish."

    See there are several problems with the law as it stands:

    1. The law makes a felony from a misdemeanor, in other words, you can be charged with a felony as the result of a misdemeanor (cruel and unusual 8th Amendment).
    2. In my case, I wasn't told at the time of my conviction that it would result in a future gun prohibition- a violation of the 6th Amendment.
    3. If I legally owned a gun prior to the offense then it could be construed as illegal seizure depending on the circumstances. (4th Amendment)
    4. It denies due process (14th Amendment).

    In my case, both DPS and the City Municipal court have been very helpful. I filed a motion to have my conviction set-aside, and they court is going to fast-track the request. When/if my motion is granted, DPS said they would change the status of my application (all I have to do is fax the court order). Should take no more than 2 weeks, but it's still dependant on a judge's discretion. My advice (as posted above) never plea out on a misdemeanor.
     
  22. Mike OTDP

    Mike OTDP Member

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    Ex post facto law, and also due process.
     
  23. MechAg94

    MechAg94 Member

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    Partly also, it sounds like he plead to a lesser charge below that of domestic battery, but the federal court decided it was Domestic Battery anyway. Does the federal court have the right to essentially change his conviction to a more severe crime?
     
  24. ServiceSoon

    ServiceSoon Member

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    The 'words and the intent' of the Ex Post Facto Clause encompass '[e]very law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.' Calder v. Bull, 3 U.S. (1 Dall.) 386, 390 (1798) (opinion of Chase, J.).

    Based on the case law quote above, I think he could win if his defense argued ex post facto law.
     
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