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Would Incorporation effect the Lautenberg Amendment?

Discussion in 'Legal' started by usmarine0352_2005, Jul 18, 2009.

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  1. usmarine0352_2005

    usmarine0352_2005 Member

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    .We know that no state shall "deprive any person of life, liberty, or property, without due process of law." because of Incorportation, which hasn't yet been applied to the 2nd Amendment.




    Since with Lautenberg you lose your weapons before you've gone to trial, wouldn't this negate this?

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  2. cbrgator

    cbrgator Member

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    It might... but not automatically. It would have to be challenged as being unconstitutional.
     
  3. Right Wing Wacko

    Right Wing Wacko Member

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    Challenging Lautenberg should not require incorporation. It's a Federal Law and the 2nd Amendment Already applys to the Federal Government.
     
  4. usmarine0352_2005

    usmarine0352_2005 Member

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    Well, obviously it hasn't changed yet.


    Will a win in McDonald v. Chicago nullify the Lautenburg Amendment or will it need to be challenged?



    Or will even a win in McDonald v. Chicago not nullify Lautenburg?
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  5. wishin

    wishin Member

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    As I understand Lautenberg, it prohibits the transporting, shipping, ownership and use of guns and ammo by those convicted of domestic violence, or are under a restraining order for domestic abuse.

    McDonald really doesn't change anything in that regard, since government restrictions are, and will continue to be, allowed.
     
  6. Radagast
    • Contributing Member

    Radagast Moderator Staff Member

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    The McDonald case is essentially about the right to keep firearms in the home and wether the second ammendment is incorporated against the states, preventing them from banning the keeping of firearms in the home, just as Heller was about the right to keep firearms in the home in a Federal enclave.

    If SCOTUS incorporates the 2nd against the states and sets a standard of review this would have a future impact on a challenge to Lautenberger.

    Currently no judicial standard of review has been set for the 2nd. If SCOTUS runs with strict scrutiny then in a future case the govt. would have to argue for a pressing need to keep Lautenberger and that the infringement is not broad, which would be unlikely to hold up in court. If SCOTUS doesn't set a standard of review in McDonald then a future case, potentially a Lautenberger, challenge will do so.
    Even if SCOTUS doesn't incorporate the second ammendment against the states the Heller ruling will still hold against the Federal govt. and a future challenge to Lautenberger will be possible.
    In Heller the majority opinion said that existing firearms laws are presumptively constitutional. This means a seperate legal challenge is needed for each law. Lautenberger will be on the list for CATO/Second ammendment foundation/ Gura/ NRA, but may not be at the top of the list.

    I think you will find the priorities of the legal teams in order are
    Right to keep arms in the home.
    Right to bear arms in public.
    removal of restrictions on classes of firearms (handguns, 'assault weapons')
    Removal of unnecessary restrictions (waiting periods, storage requirements, one gun a month, etc.)
    Review of restricted classes of person (Lautenberger, misdemeanors, etc).

    Review of restricted classes of person will be last. It's a lot easier to argue for hand picked good guys (the plaintiffs in Heller and McDonald were heavily vetted) than for persons already convicted of a crime that equates with scum of the earth for those who don't think.

    There is already a challenge to Lautenberger occurring however, I can't remember the full details and wether it is still going through. A man disqualified under Lautenberger was arrested and convicted for possession of a firearm he admitted was for hunting. He challenged the conviction on 2nd Ammendment grounds. There may be more info in some of the older threads.
     
  7. Radagast
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    Radagast Moderator Staff Member

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  8. thesecond

    thesecond Member

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    ....
     
    Last edited: Feb 28, 2010
  9. mp510

    mp510 Member

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    A few points:
    1. The Laughtenburg Ammendment is a federal law. Incorporation isn't necessary to attack it. That said, the Supreme Court has upheld Laughtenburg even in light of Heller.
    2. The fifth ammendment has a similar due process clause to the 14th ammendment, accept it does not apply those rights against the states.
    3. Pay particular attention to the "....without due process" wording. This class of prohibited persons have all received due process. They were found guilty, beyond a reasonable doubt, by a jury of their peers OR they plead guilty (or nolo contendere) and thus admitting guilt or at a minimum admitting that they could not or would not b e contesting the state's charges.
     
  10. thesecond

    thesecond Member

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    ....
     
    Last edited: Feb 28, 2010
  11. usmarine0352_2005

    usmarine0352_2005 Member

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    .



    You do not need to be convicted to lose your firearms via Lautenburg.



    You only need to have someone say you scared them, abused them or hurt them, they place an Order For Protection or such against you and you lose your rights. (And then you go to court later).



    That's the problem with Lautenburg. There really is no due process to losing your rights and you have not been convicted yet.
     
  12. legaleagle_45

    legaleagle_45 Member

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    Since Lautenberg is a federal statute, incorporation will have zero effect on it. Incorporation would subject state and municpal laws to the 2nd amend. Federal laws are already subject to the 2nd
     
  13. thesecond

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    ....
     
    Last edited: Feb 28, 2010
  14. sfc_mark

    sfc_mark Member

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    The restraining order must have been issued by a judge at a hearing of which you were notified and in which you had the opportunity to participate. It's still weak, and Lautenberg needs to be repealed, but it is due process under the law.
     
  15. usmarine0352_2005

    usmarine0352_2005 Member

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    So no matter what, were SOL and are stuck with Lautenburg being constitutional?
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  16. legaleagle_45

    legaleagle_45 Member

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    Lautenburg has not been challenged on 2n Amend grounds in front of SCOTUS as of yet. It will probably be a while begore a challenge reaches them.
     
  17. usmarine0352_2005

    usmarine0352_2005 Member

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    .


    So what do you think our chance of getting it over-turned is?

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  18. divemedic

    divemedic Member

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    Pretty low.
     
  19. RP88

    RP88 Member

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    This. There is a due process in regards to Lautenberg. The only course would to somehow prove that it fits as 'cruel and unusual punishment'.

    Even then, keep in mind that a domestic violence conviction IS expungeable. The only problem with that is the time and the money.
     
  20. CAPTAIN MIKE

    CAPTAIN MIKE Member

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    The Supreme Court ruled 2 years ago the 2nd Amendment protects an individual's right to keep and bear arms. On Tuesday morning in Washington D.C., the Justices of the Supreme Court will be asked to finally extend the full Bill of Rights--including the Second Amendment--to ALL the states. FINALLY.

    This is THE Case we have been waiting for.
     
  21. orionengnr

    orionengnr Member

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    No, but it might affect it....:rolleyes:
     
  22. divemedic

    divemedic Member

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    and will have exactly NOTHING to do with Lautenberg. The courts have long held that your rights can be taken from you through due process. Your voting right, right to freedom, peaceably assemble, and others are fair game through due process.

    Being that the McDonald case is about applying 2A to the states and Lautenberg is a Federal Law, the McDonald case has absolutely nothing to do with it.
     
  23. Ohio Gun Guy

    Ohio Gun Guy Member

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    ^^^ I disagree.....kind of. If the court rules it is incorporated against the states and it requires strict scruitiny (like the others on the BOR) then the Lautenburg amendment could be chalenged because with other fundimental rights, the default is the right, and there must be a much more rigerous process for removing the right.

    I wouldnt want to be the trial case for it, but jsut saying.....
     
  24. StarDust1

    StarDust1 Member

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    Actually, it's never going to happen! The 2nd Amendment is not a right, it's a privilege, if it was actually a right Lautenberg simply could not exist, nor would we be waiting on the outcome of McDonald for illumnination on the "right to store a firearm in your home but never bear it!"
    It's not a right when you are subject to the "willful & intrusive scrutiny" of the state before even being allowed to purchase a firearm, let alone "bear" it about your person as you wish to!
    Finally, it's simply not a right when the state has the power to defrock you of said "right" at literally their whim...Sorry, but the truth is plain as daylight, Lautenberg, NFA, GCA, ect..all add up to privilege.
     
  25. Ohio Gun Guy

    Ohio Gun Guy Member

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    Yes....but thats why this is in court. The "Provelage" has been assumed by gun grabbing politicians, now its our turn to assert our RIGHT.
     
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