New ruling: being under indictment cannot be used to deny firearm purchases

Discussion in 'Legal' started by old lady new shooter, Sep 21, 2022.

  1. old lady new shooter

    old lady new shooter Member

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    This just came out a few hours ago. Guns & Gadgets has the full story, a guy was indicted, tried to purchase a firearm, lied on the 4473. NICS took longer than 7 days so he got the gun. Then he was convicted of lying on the 4473 and being in possession of a firearm while under indictment. (Apparently the original charges have not yet resulted in conviction.) Judge ruled that that question on the 4473 is unconstitutional because based on the historical record (the new standard since Bruen), the US does not deny constitutional rights based on a charge or indictment, only on conviction.

    Here is the Guns & Gadgets piece:


    And here is the ruling:
    https://www.courthousenews.com/wp-content/uploads/2022/09/422cv104.pdf
     
  2. starling

    starling Member

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    Nice job Old Lady. First I have heard of it. Thank you
     
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  3. Madcap_Magician

    Madcap_Magician Member

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    I was puzzled by this because I assumed he was out on bail and thought that not possessing firearms would have been a condition of his bail.
     
    Last edited: Sep 22, 2022
  4. DMW1116

    DMW1116 Member

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    I have mixed feelings about this type of thing but generally consider all gun control laws to be pre-crime laws. Overall I think depravation of rights prior to conviction is a bad thing.
     
  5. Speedo66

    Speedo66 Member

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    I always thought the law of the land was you're innocent until proven guilty.

    Funny how certain agencies disregard this.
     
  6. Frank Ettin

    Frank Ettin Moderator Staff Member

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    And that is not accurate.

    "Innocent until proven guilty" is just a nickname for a principle. The proper name is "the presumption of innocence." Referring to the principle as a presumption helps focus us on its nature. It's about evidence and burden of proof. And it only applies in a trial on a criminal charge.

    Technically, what the presumption of innocence refers to is the rule that in a trial on a criminal charge the prosecution has the burden of proving the defendant's guilt beyond a reasonable doubt. If the prosecution fails to meet its burden, the presumption of innocence means that the defendant is entitled to a not guilty verdict.

    The respective burdens of (1) production (producing evidence); (2) proof; and (3) persuasion are very technical. In a trial on a criminal charge the prosecution has the burden of proving all elements of the charge "beyond a reasonable doubt." However the defendant on trial on a criminal charge may, depending on state law have a burden of either production or proof of various defenses, like justification, statute of limitations, insanity, etc.

    We're discussing law, and both details and accuracy matter.
     
  7. RickD427

    RickD427 Member

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    There are two points concerning this decision that are well worth making:

    1) This was a trial court decision. It only applies to the parties in that particular case. It does not establish any legal precedent. The judge in the courtroom next door could hear an identical case and rule that the prohibition is constitutional.

    2) When there is a potential of 18 USC 922(n) being violated is concerned, it is important to consider the meaning of the word "Indictment." That word, as used in 18 USC 922(n), is quite different from the meaning of the word in common usage. In many states, it is quite rare for a felony defendant to be prosecuted via an indictment. Those states use an alternative procedure where the prosecutor files an "Information" that brings the felony charges against the defendant. The guarantee of the right of an indictment to a felony defendant in the Fifth Amendment is one of the few parts of the Bill of Rights that has not yet been incorporated to the states. When a person is "Indicted", a Grand Jury hears the evidence against them and decides whether or not to issue an indictment. If the indictment is issued, a felony trial follows. When charges are brought through an "Information", the defendant gets a Preliminary Hearing (in all states that I'm familiar with) where the evidence on both sides is weighed by a judge who determines is the weight of the evidence is sufficient to proceed to trial.

    In common usage "Indictment" and "Information" are two opposite methods of bringing a person to trial on felony charges. At first blush, it would appear that a person who has felony charges pending as a result of an "Information" being filed against them could lawfully purchase firearms because they have not been "Indicted." But when you read the federal definition of "Indicted" it specifically includes cases where an "Information" was filed. In federal usage the terms are not opposites, they are synonymous.
     
    Last edited: Sep 22, 2022
  8. wbm

    wbm Member

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    Yeah. Same as all men are created equal....looks good on paper, so did the Toyota Prius, but in real life we know some, especially in political issues, are more equal than others.
     
  9. N555

    N555 Member

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    Very well said. That's reality versus how people think/wish the legal system works.
     
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  10. N555

    N555 Member

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    Yes the law is not going to be applied the same way to one of us versus the guy who has a minivan full of lawyers, accounts, aids and expert witnesses defending him.
     
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