Mr. Brownstone
NES Member
Attention to detail was never my strong suit. I didnt even notice I was quoting you for you( if that makes sense). I had just remembered having this discussion a while back.
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Denied LTC for 1995 DUI
- Thread starter normh001
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Attention to detail was never my strong suit. I didnt even notice I was quoting you for you( if that makes sense). I had just remembered having this discussion a while back.
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Correct. The feds position is that since the convict did not lost the right to vote, a FLRB relief is not a "relief from civil disabilities".
Common sense legislation ![[puke]](/xen/styles/default/xenforo/smilies.vb/023.gif "Puke [puke]")
Absolutely. Even though the federal prohibition will still apply, people with an OUI or similar FLRB-eligible offense should exhaust every avenue of rights restoration available to them.
This is exclusively a federal issue, and the state has no liability here. In fact, Massachusetts has tried to correct this problem with the federal government and but the feds had no interest. This creates a potentially interesting scenario whereby the MA AG and a gun rights group might actually be on the SAME side against the federal government. Whoa......
WallHack
Banned
DERP
![[laugh]](/xen/styles/default/xenforo/smilies.vb/012.gif "Laugh [laugh]")
I'll offer Lank a way out and say he was talking about a private sale....
M1911
Moderator
Yup. And risking a long stay in Club Fed.
Jason Flare
NES Member
Imagine that? A guy gets a DUI 18 years ago and risks going to prison for defending himself?
falcon123
NES Member
![[smile]](/xen/styles/default/xenforo/smilies.vb/001.gif "Smile [smile]")
falcon123
NES Member
Why is it that you only lose your 2A right but not the rest after DUI or other non gun related offense?
M1911
Moderator
No. He risks going to prison for simply possessing a gun or even a single round of ammunition.
All of us risk going to prison if we defend ourselves, even if we've never had a conviction for anything - witness the Zimmerman trial.
A single round of ammo? A non-reloadable, essentially worthless empty .22LR brass case will do it.
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Because in MA a DUI first offense has a max sentence of 2.5 years and 18 USC 922(g) defines any crime for which a sentence of more than two years may be imposed as a felony and thus a federal DQ.
There are a large number of other non-gun misdemeanors in MA that fall into the 2.5 year misdafelon trap. This is not a problem limited to DUI.
M1911
Moderator
I don't know if that is true. While MA law considers an empty case to be ammunition, the issue here is the definition of ammunition in federal law, and I don't know the federal definition..
Are you aware of any "quality" cases currently moving through the federal courts that seek to address the indecency the concept of what is the current prohibited persons list?
It seems that most gun control legislation is upheld by the courts on the basis of satisfying a compelling government interest in "public safety". Since MacDonald recognized 2A as a fundamental right, shouldn't the prohibition of exercising the right of simply possessing of a firearm (a core 2A activity) now be subject to a strict scrutiny test?
How, for instance, can prohibiting a felon -- who is nothing more than a white-collar criminal -- from simply possessing a firearm be able to pass the test of being narrowly tailored and the least restrictive means of meeting the public safety interest of keeping firearms out of the hands of dangerous persons? Especially when this person is prohibited simply by being a member of the population know as "convicted felons" and the person has committed no violent acts or shown no propensity for violence. It is no longer enough for the prohibition to simply be a punitive measure or to use "convicted felon" as a convenient means of classification since it is so broad and lacks direct relevance to the public safety interest.
I'd like to think we'll eventually get to the place where anyone convicted of a crime gets full restoration of their 2A rights once their sentence is completed unless the government somehow adjudicates the person as a continuing threat to public safety. Of course we could argue that person shouldn't be allowed back among the general public. Instead, I expect we'll eventually see a compromise where the prohibited persons list consists only of those convicted of specific crimes of violence that are considered per se evidence of being a continuing threat to public safety. Given how many violations of federal administrative or environmental laws can result in becoming a prohibited person, I think the current system has to fall with the right challenge.
Great question.
I'm going to leave aside the thread's subject which really has more to do with Massachusetts' attempt to restore the rights of some people and the federal government's refusal to recognize that restoration. What you're really asking is "what's a constitutionally sound scheme for determining who is a prohibited person?"
This is going to be one of the central Second and Fourteenth Amendment questions for decades to come and we're just getting started. Sadly, our side has not been very successful largely because of the lower courts' general reluctance to break new legal ground, especially in the wake of Heller's dicta:
The approach is to whittle away at the prohibitions beginning with the silliest and most absurd. From those cases you hope to build a foundation of case law that allows you to work up the offense hierarchy to a point where the prohibitions are in fact narrowly tailored to meet that compelling government interest.
This is the approach employed by Comm2A and other reputable 2A organizations. This is one of the reasons we chose to attack the alienage prohibition in Massachusetts first - because it was silly and the case law was clear that the prohibition was not narrowly tailored. Next up is challenging the state's prohibition due to a conviction for simple possession (Wesson v. Fowler). This prohibition is equally absurd once one considers that the law make prohibited persons out of people who were NOT prohibited prior to 1998 and would still NOT be prohibited if their offense was committed after 2008. We received some criticism for taking a 'drug' case, but it is an important step to building the kind foundational law necessary to make the government more accountable for demonstrating the 'narrow tailoring' requirement.
So far the record is not tallying in our favor. Earlier this summer the SJC upheld the state's sweeping prohibition due to juvenile offenses in a decision (Chardin) that went against every precept of juvenile justice. Nationally the most prominent case of this type was Schrader v. Holder where we lost in the DC Circuit. There will be more cases filed against both Massachusetts and the federal government, however, I don't expect much to change until the Supreme Court sets some type of standard.
Ideally we'll see a standard based upon dangerousness. Absent that type of standard, we're forced to conclude that some prohibitions are nothing more than extended punishment. Martha Stewart is the classic example. Is society safer because as a convicted felon she can't own a gun? I recommend "Why Can't Martha Stewart Have a Gun".
I'm going to leave aside the thread's subject which really has more to do with Massachusetts' attempt to restore the rights of some people and the federal government's refusal to recognize that restoration. What you're really asking is "what's a constitutionally sound scheme for determining who is a prohibited person?"
This is going to be one of the central Second and Fourteenth Amendment questions for decades to come and we're just getting started. Sadly, our side has not been very successful largely because of the lower courts' general reluctance to break new legal ground, especially in the wake of Heller's dicta:
Lower courts are going to be very slow to push the envelope in this area absent clear direction from SCOTUS on what prohibitions are in or out.
The approach is to whittle away at the prohibitions beginning with the silliest and most absurd. From those cases you hope to build a foundation of case law that allows you to work up the offense hierarchy to a point where the prohibitions are in fact narrowly tailored to meet that compelling government interest.
This is the approach employed by Comm2A and other reputable 2A organizations. This is one of the reasons we chose to attack the alienage prohibition in Massachusetts first - because it was silly and the case law was clear that the prohibition was not narrowly tailored. Next up is challenging the state's prohibition due to a conviction for simple possession (Wesson v. Fowler). This prohibition is equally absurd once one considers that the law make prohibited persons out of people who were NOT prohibited prior to 1998 and would still NOT be prohibited if their offense was committed after 2008. We received some criticism for taking a 'drug' case, but it is an important step to building the kind foundational law necessary to make the government more accountable for demonstrating the 'narrow tailoring' requirement.
So far the record is not tallying in our favor. Earlier this summer the SJC upheld the state's sweeping prohibition due to juvenile offenses in a decision (Chardin) that went against every precept of juvenile justice. Nationally the most prominent case of this type was Schrader v. Holder where we lost in the DC Circuit. There will be more cases filed against both Massachusetts and the federal government, however, I don't expect much to change until the Supreme Court sets some type of standard.
Ideally we'll see a standard based upon dangerousness. Absent that type of standard, we're forced to conclude that some prohibitions are nothing more than extended punishment. Martha Stewart is the classic example. Is society safer because as a convicted felon she can't own a gun? I recommend "Why Can't Martha Stewart Have a Gun".
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The issue is not what we conclude, but what the courts conclude. The MA SJC has refused to treat denial of an LTC as "punishment", and this is the hook upon which the lack of due process is hung out to dry. Once a court recognizes it as "punishment", it becomes much harder to rule that due process is not required.
As to the refusal to recognize an FLRB restoration.... This is the fallout of the BATFE's reaction to the state of California establishing a procedure for persons with minor domestic violence convictions to get their gun rights back. The convoluted logic ("You did not have your civil rights restored by the state since you never lost the right to vote") can logically only be explained as the outcome of a results-driven analysis with a pre-ordained outcome of "not recognized".
Thanks... "Why Can't Martha Stewart Have a Gun" was an interesting read. It does get a bit deep in the weeds.
I know I'm over-simplifying my position, but the point I was making seems to be consistent with how the issue seen in the time period when the '39 law was drafted. So, as recently as the 1920's; the prohibition on dangerous persons only pertained to firearms less than 12" in length.
It's interesting that restoration of rights in MA allows for the issuance of an FID and by definition allows for ownership of some long guns. Is this an intentional connection to history in this area of the law where handguns were treated differently because of their supposedly inherent danger posed by being easily concealed?
Given the history of prohibited persons law, the GCA seems to be a bit of a contradiction with itself. It abandoned the concept of classifying a person as prohibited based on a dangerousness standard and adopted a convicted felon standard without regard to the presence of, or lack of posing a danger to public safety. Yet, in the section allowing for restoration of rights by the Attorney General; the statute uses "not a danger to public safety" as the standard for restoration. It sounds, on its face, an admission that the "convicted felon" standard is not based on a public safety interest, but is meant to be punitive.
Assuming then that we're unlikely to see a tectonic shift at either the district court level or SCOTUS acknowledging that much of 2A related precedent was invalidated by Heller and subsequently by MacDonald, we are left with the approach you described where we have to chip away at the most frivolous of offenses resulting in prohibition until enough have fallen that the court is forced to recognize the need to return to at least the NFA approach to prohibited persons or an early standard.
Finally, do we expect to see the old English concept of "surety of peace" cited as a constitutional justification by Linskey and others advocating for gun owner liability insurance?
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I took the time to read the decision of the appeals court in Schrader v. Holder that upheld the district court's ruling. When I read what I've quoted below, I was left with a moment of "Did they really say that?"
Taken at its most literal reading, the court's justification above uses "law-abiding" in such a general sense so as to render moot much of the 2A protections afforded to anyone convicted of breaking any law. Based on the standard above, "law-abiding" is always a past-tense concept with no present-tense component and is not subject to rehabilitation? It certainly appears to be a rather extreme interpretation. Once convicted of a crime, you are forever barred from claiming the exercise of a core right under 2A as you never again can be a law-abiding, responsible citizen and have been relegated a second class citizen in perpetuity?
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If you were convicted or plead guilty to OUI in MA, somebody made a mistake because you're still federally prohibited. You also would not have passed a NICS check if you truthfully answer question 11c:
If you answered 'yes' to this question the FFL should not have followed up with the NICS check. If you answered 'no', you completed form 4473 'untruthfully'.
Unfortunately, what KD said above is correct.
A Massachusetts OUI (MGL 90-24) conviction on or after 5/26/94 is a Federal prohibitor, as it is a misdemeanor carrying a potential penalty in excess of two years incarceration (18 USC 921(a)(20)(B)).
Though MA will issue a FID to such an individual (albeit in violation of MGL 140-129B(2) and/or (3)), possession of firearms or ammunition is a violation of Federal law (18 USC 922(g)), carrying a potential penalty of 10 years incarceration (18 USC 924(a)(2)).
Additionally, knowingly making a false statement on a 4473 is a separate offense (18 USC 922(a)(6)), also carrying a potential penalty of 10 years incarceration (18 USC 924(a)(2)).
In re-reading the relevant post, it's not clear that this guy was convicted. He may have been charged but his case was CWOF.
