Heller v. DC - Your Gun Rights Case

Off Topic Politics & World Issues
161

[quote]jsbrook wrote:
But either way, the prosecution will go to trial if it wants. The difference in New Hampshire is that the prosecution must prove that the defendant was NOT justified while in other states the defendant has to show that he WAS.[/quote]

No shit. That’s exactly what I’m talking about.

How much time did you spend on justifiable homicide in your Criminal Law class? Now how much time did you spend on it in your Bar prep? Don’t sweat it. This isn’t the fine detail they will test in the multi-state. If they did, you’d have gotten this one wrong.

162

That’s it. This needs to be settled by a gun duel. :wink:

163

[quote]PRCalDude wrote:
That’s it. This needs to be settled by a gun duel. ;)[/quote]

I choose…

164

[quote]Loose Tool wrote:
jsbrook wrote:
But either way, the prosecution will go to trial if it wants. The difference in New Hampshire is that the prosecution must prove that the defendant was NOT justified while in other states the defendant has to show that he WAS.

No shit. That’s exactly what I’m talking about.

How much time did you spend on justifiable homicide in your Criminal Law class? Now how much time did you spend on it in your Bar prep? Don’t sweat it. This isn’t the fine detail they will test in the multi-state. If they did, you’d have gotten this one wrong.

[/quote]

We didn’t discuss justifiable homicide at all per se. We didn’t talk about who the burden of proof was on for the MBE. For the MBE, we talked about the justification defense generally. For the New York essay, we learned that it is an affirmative defense. I just didn’t understand what you were trying to say here.

165

[quote]Loose Tool wrote:
PRCalDude wrote:
That’s it. This needs to be settled by a gun duel. :wink:

I choose…

[/quote]

That looks kit-built. Did you manufacture that firearm?

166

[quote]jsbrook wrote:
Sifu wrote:
jsbrook wrote:
Sifu wrote:

You have alluded but you have not back it up with any credible examples. The reason why you haven’t backed up what you are saying is because you can’t.

I can’t? On the contrary. Regulations that have been upheld limiting fundamental constiutional rights like free speech are in the single digits. Name some laws and regulations in these areas that AREN’T appropriate. Start with just one. Work your way up from there. I am genuinely curiously to see if you come up with anything.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

This civil right was reinterpreted during the Clinton administration. The mail is protected from government inspection because it is our papers. Email on the other hand is not protected because it does not use paper, it is electronic.

Ok, you got one. I agree with that. E-mail should have the same protection that letters do. There’s no substantive difference. Anyting else? I doubt that you could name very many.[/quote]

How about the fifth.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation

Forfeiture laws that confiscate property from someone before they have had a trial are a violation of due process. Innocent people have had money and property confisacted without their ever being charged or convicted of a crime.

“nor shall be compelled in any criminal case to be a witness against himself”

When dealing with the mental health people if you excercise your fifth amendment right to remain silent, they can hold that against you in a court of law. I don’t think that’s fair.

It may be a bit of a stretch, but drug testing is forcing people to give evidence against themselves when there may not be any other evidence against them. It also violates ones right to privacy.

Amendment VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted

Waterboarding anyone. Or how about setting attack dogs on restrained prisoners.

Some of the provisions of the patriot act violate civil rights. ie Attorney client confidentiality. or monitoring library records. Or allowing the FBI to open casefiles on people without evidence of a crime.

Or how about the Bush administrations free speech zones where the SS tells people where they can and cannot excercise their first amendment rights.

167

[quote]jsbrook wrote:
Loose Tool wrote:
jsbrook wrote:
But either way, the prosecution will go to trial if it wants. The difference in New Hampshire is that the prosecution must prove that the defendant was NOT justified while in other states the defendant has to show that he WAS.

No shit. That’s exactly what I’m talking about.

How much time did you spend on justifiable homicide in your Criminal Law class? Now how much time did you spend on it in your Bar prep? Don’t sweat it. This isn’t the fine detail they will test in the multi-state. If they did, you’d have gotten this one wrong.

We didn’t discuss justifiable homicide at all per se. We didn’t talk about who the burden of proof was on for the MBE. For the MBE, we talked about the justification defense generally. For the New York essay, we learned that it is an affirmative defense. I just didn’t understand what you were trying to say here.[/quote]

Too much ground to cover. Too fine a distinction. They can’t go in depth into something you probably won’t see in NY. It’s useful knowledge, though, for folks interested in deadly force.

168

[quote]Loose Tool wrote:
jsbrook wrote:
Loose Tool wrote:
jsbrook wrote:
But either way, the prosecution will go to trial if it wants. The difference in New Hampshire is that the prosecution must prove that the defendant was NOT justified while in other states the defendant has to show that he WAS.

No shit. That’s exactly what I’m talking about.

How much time did you spend on justifiable homicide in your Criminal Law class? Now how much time did you spend on it in your Bar prep? Don’t sweat it. This isn’t the fine detail they will test in the multi-state. If they did, you’d have gotten this one wrong.

We didn’t discuss justifiable homicide at all per se. We didn’t talk about who the burden of proof was on for the MBE. For the MBE, we talked about the justification defense generally. For the New York essay, we learned that it is an affirmative defense. I just didn’t understand what you were trying to say here.

Too much ground to cover. Too fine a distinction. They can’t go in depth into something you probably won’t see in NY. It’s useful knowledge, though, for folks interested in deadly force.
[/quote]

Well, they actually do go into fine detail like this in the right circumstances judging from past published questions and the Barbri practice questions. But they only ask about majority law. They can’t expect us to know minority law unless a sizeable minority of states follow that approach. We didn’t even learn justifiable homicide as such because very few states recognize it as a discreet crime. I checked it out for my own curiosity though. You were right. Almost every state only has one type of homicide–criminal homicide. And in these states the defendant must raise the issue of justifiable use of force by introducing SOME evidence (‘more than a scintilla’) tending to show justification as a defense. Then the states divide on how they approach it. About half require the prosecution to prove that the use of force was NOT justified once the Defendant has presented some evidnece. The other half impose on the defendant the burden of proving this as an affirmative defense by a preponderance of the evidence. And this was all they taught us. But I checked out the big outline. A very small handle of states recognize Justifiable Homicide and Excusable Homicide as discreet entities entirely. This was just a throw-away sentence for us, though. I guess New Hampshire follows this approach.

169

[quote]Sifu wrote:
jsbrook wrote:
Sifu wrote:
jsbrook wrote:
Sifu wrote:

You have alluded but you have not back it up with any credible examples. The reason why you haven’t backed up what you are saying is because you can’t.

I can’t? On the contrary. Regulations that have been upheld limiting fundamental constiutional rights like free speech are in the single digits. Name some laws and regulations in these areas that AREN’T appropriate. Start with just one. Work your way up from there. I am genuinely curiously to see if you come up with anything.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

This civil right was reinterpreted during the Clinton administration. The mail is protected from government inspection because it is our papers. Email on the other hand is not protected because it does not use paper, it is electronic.

Ok, you got one. I agree with that. E-mail should have the same protection that letters do. There’s no substantive difference. Anyting else? I doubt that you could name very many.

How about the fifth.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation

Forfeiture laws that confiscate property from someone before they have had a trial are a violation of due process. Innocent people have had money and property confisacted without their ever being charged or convicted of a crime.

“nor shall be compelled in any criminal case to be a witness against himself”

When dealing with the mental health people if you excercise your fifth amendment right to remain silent, they can hold that against you in a court of law. I don’t think that’s fair.

It may be a bit of a stretch, but drug testing is forcing people to give evidence against themselves when there may not be any other evidence against them. It also violates ones right to privacy.

Amendment VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted

Waterboarding anyone. Or how about setting attack dogs on restrained prisoners.

Some of the provisions of the patriot act violate civil rights. ie Attorney client confidentiality. or monitoring library records. Or allowing the FBI to open casefiles on people without evidence of a crime.

Or how about the Bush administrations free speech zones where the SS tells people where they can and cannot excercise their first amendment rights.[/quote]

Agree that some of these are probably being violated by practice and laws enacted. Not all. I’ll explain why later. I don’t have time now-6 hours of practice test to take.

170

The Benefits of Heller May Not Extend Even to Heller

As I feared, the district’s position is that all handguns that accept magazines holding more than 12 rounds�??meaning “all bottom-loading guns,” according to a local news report�??are prohibited under D.C.'s ridiculously broad “machine gun” ban. So even though Heller’s pistol is a semiautomatic with a seven-round clip, it might as well be an Uzi as far as the district is concerned.

Heller, of Heller v. DC is being banned from registering his SEVEN SHOT SEMIAUTOMATIC PISTOL because it’s a MACHINE GUN.

My jaw nearly hit the floor.

171

That’s funny, my hand hit my face.

172

[quote]Magnate wrote:

The Benefits of Heller May Not Extend Even to Heller

As I feared, the district’s position is that all handguns that accept magazines holding more than 12 rounds�??meaning “all bottom-loading guns,” according to a local news report�??are prohibited under D.C.'s ridiculously broad “machine gun” ban. So even though Heller’s pistol is a semiautomatic with a seven-round clip, it might as well be an Uzi as far as the district is concerned.

Heller, of Heller v. DC is being banned from registering his SEVEN SHOT SEMIAUTOMATIC PISTOL because it’s a MACHINE GUN.

My jaw nearly hit the floor.[/quote]

Mighty peculiar definition of “machine gun”. I guess I’m not getting how a 7 round bottom loading semi-auto violates the 12 round rule. Maybe because Heller’s semi-auto could accept a high capacity magazine.

From the DC Mayor’s office:

Mayor Fenty, Council Unveil Firearms Legislation and Regulations

[i]Washington, DC �?? Mayor Adrian M. Fenty, joined by members of the Council of the District of Columbia, Acting Attorney General Peter J. Nickles and Metropolitan Police Chief Cathy L. Lanier, unveiled legislation and regulations on the registration and storage of handguns for self-defense in the home. The bill and rulemaking are necessary because of the United States Supreme Court�??s June 26 ruling in District of Columbia v. Heller, which invalidated the District�??s 32-year ban on handgun ownership.

�??We continue to take every step we can to minimize handgun violence in the District,�?? said Mayor Fenty. �??We must prevent handguns from falling into the wrong hands or being misused, while allowing District residents to exercise their Second Amendment rights under the Heller ruling.�??

The proposed legislation has four main components:

  1. Continues to ban handguns in most places but creates an exception for self-defense in the home. The handgun ban remains in effect, except for use in self-defense within the home. Sawed-off shotguns, machine guns and short-barreled rifles are still prohibited.

  2. Requires the Metropolitan Police Department to perform ballistic testing on handguns and makes such testing a registration requirement. The Chief of Police will require ballistics tests of any handgun submitted for registration to determine if it is stolen or has been used in a crime. Also, to serve as many residents as possible, the Chief will limit registrations to one handgun per person for the first 90 days after the legislation becomes law.

  3. Clarifies the safe-storage and trigger-lock requirements. The legislation modifies existing law to clarify that firearms in the home must be stored unloaded and either disassembled secured with a trigger lock, gun safe, or similar device. An exception is made for a firearm while it is being used against reasonably perceived threat of immediate harm to a person within.[/i]

Ballistic test? On the other hand, there is a bill pending in Congress (introduced July 10, 2008) that would restrict the DC’s council’s authority to restrict handguns.

173

[quote]Magnate wrote:

The Benefits of Heller May Not Extend Even to Heller

As I feared, the district’s position is that all handguns that accept magazines holding more than 12 rounds�??meaning “all bottom-loading guns,” according to a local news report�??are prohibited under D.C.'s ridiculously broad “machine gun” ban. So even though Heller’s pistol is a semiautomatic with a seven-round clip, it might as well be an Uzi as far as the district is concerned.

Heller, of Heller v. DC is being banned from registering his SEVEN SHOT SEMIAUTOMATIC PISTOL because it’s a MACHINE GUN.

My jaw nearly hit the floor.[/quote]

Lawyers and politicians have become nothing more than professional “meaning distorters”. I see this kind of stuff all over the place anymore.

Ultimately, we need to simplify. There should be some means for higher courts to clarify things like this very quickly. If the Heller decision means you can own a semi-auto pistol, then the USSC should be able to just say so. Then if the DC politicos still refuse to honor it, there is a nice train ride to Leavenworth prison waiting for them. Of course, such a plain-spoken approach would put thousands of worthless lawyers out of business all over this country.

I even heard a DC rep saying after Heller came out that they may just ignore the court’s decision! Any action that follows in line with such a statement should lead to her being dragged out of office…in handcuffs. I am completely serious about that. You try and directly contradict a judge’s order in regards to something as stupid as a parking ticket and see what happens.

How can our system survive with these subversive peons doing whatever they please?

174

[quote]JD430 wrote:
Then if the DC politicos still refuse to honor it, there is a nice train ride to Leavenworth prison waiting for them. Of course, such a plain-spoken approach would put thousands of worthless lawyers out of business all over this country.[/quote]

Yup. We’ll get rid of all the lawyers and let the cops do all the work.

The lawyers represented Heller, submitted amicus briefs, interpreted the US Constitution and issued the decision that upheld the Second Amendment. It’s the politicians and the DC Police Chief that are trying to circumvent the ruling.

175

[quote]Loose Tool wrote:
JD430 wrote:
Then if the DC politicos still refuse to honor it, there is a nice train ride to Leavenworth prison waiting for them. Of course, such a plain-spoken approach would put thousands of worthless lawyers out of business all over this country.

Yup. We’ll get rid of all the lawyers and let the cops do all the work.

The lawyers represented Heller, submitted amicus briefs, interpreted the US Constitution and issued the decision that upheld the Second Amendment. It’s the politicians and the DC Police Chief that are trying to circumvent the ruling.

[/quote]

I never said it was all lawyers, just too many.

For the record, a huge percentage of politicians are lawyers and most Police Chiefs are politicians.

176

Good thread going on THR about Heller. Speculation that his attempt to register this particular gun (1911 .45) is a deliberate attempt to further test the boundaries. I personally am waiting for the state of NJ to approve my FPID card and handgun permit. I cant wait to join the NRA, and become a one-issue voter.

177

Heres a great vid of Hellers atty, Alan Gura, speaking in front of a pro gun group in VA last week. He gives a synopsis of the case, and the future of 2nd amendment litigation. Good stuff. Definitely worth a watch.

http://www.vcdl.org/Heller/VCDL_Gura.mov

178

http://volokh.com/posts/1217308399.shtml

Heller files suit against DC for their revised gun laws. Such laws prevented him from buying a pistol because it was a ‘machine gun’.

179

Heller V DC 2: The Rumble in the Automatic Jungle; The Fight for The Peoples Gun Rights; The Battle for the Barrels

180

[quote]Moriarty wrote:

How do you feel about a simple “competence test” being required before voting?[/quote]

Imagine if a “competence test” were required before one could post on T-Nation.