Convicted Felon Tests Second Amendment. December 27, 2007 The New York Sun

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http://www.nysun.com/article/68607

With the U.S. Supreme Court set to decide whether the Second Amendment gives law-abiding citizens the right to keep a handgun at home, a convicted felon in New York decided to test his luck.

The inmate, Damon Lucky, isn't law-abiding. Nor did the gun he was convicted of possessing stay in his home. Still, Lucky decided to "see how far we can ride this pony," his lawyer, Harry Batchelder Jr., said, referring to the federal judiciary's apparent willingness to examine gun control laws critically.

So this month, Mr. Batchelder, asked a federal judge in Brooklyn to answer "yes" to a question that makes many staunch gun owners uneasy: Does the Second Amendment give convicted felons the right to carry handguns?

Current federal law prevents felons from keeping a firearm. Lucky, already a felon twice over, was convicted this year of violating that law. His court motion seeks to have that conviction tossed out on the grounds that the law violates the Second Amendment.

At its essence, the question before the Supreme Court in an upcoming case is whether the Second Amendment gives individuals the right to own guns or grants only a collective right to form militias.

Even some proponents of the individual rights position say the Second Amendment allows for some gun control, like laws that prevent felons from owning firearms.

Mr. Batchelder conceded that the motion is a long shot. Still, few defendants in gun possession cases in New York ever raise a Second Amendment argument.

Except for Lucky, Mr. Batchelder said, "they all go away quietly."

It's possible, several lawyers say, that Lucky's case is the only challenge currently in court in New York City claiming that the Second Amendment provides for an individual right to own a gun.

Mr. Batchelder, an ex-military man, described Lucky as "the recon scout for the Second Amendment."

Lucky, who is currently being held in Manhattan's federal jail, the Metropolitan Correctional Center, faces up to 10 years in prison if Judge David Trager of U.S. District Court rejects the motion.

Lucky's latest arrest came in 2004 after police pulled over the truck he was driving and found a handgun in his waistband. Officers had been on the lookout for the vehicle because, a few days earlier, a firefighter claimed to have seen a man get out of the truck and fire a gun at a group of people near the intersection of Park Place and Nostrand Avenue in Brooklyn.

Prosecutors say Lucky's criminal record dates back to May 1992, when, at age 19, he shot a man. Then, in September of that year, police found him in possession of two handguns and a small amount of crack cocaine. He was sentenced to six years and released after four and a half.

In Lucky's legal motion, Mr. Batchelder refers to the gun rights advocates as "Paineists," and the gun control advocates as "Stalinist collectivists." Yet the lawyer says he personally favors gun control.

"But my personal views have nothing to do with what I advocate," Mr. Batchelder said. "Otherwise, I wouldn't be advocating for too many people."

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Disbar a felon-citizen of his Rights under color of law and the bar may be so lowered that we are all disarmed - under color of that law.

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Either we are equal or we are not. Good people ought to be armed where they will, with wits and guns and the truth. NRA KMA$$[/font]

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I can see why Longwatch has started to pull your posts -- not a modicum of reasoning or thought in your post, just an inflamitory reply.

Re: The OP...

I'm not familliar with the statutes where by a convicted felon looses a good deal of his rights, but I'm sure something along those lines would need to be revisited... Granted, our criminal system isn't particularly setup to rehabilitate, so the conflict there is the 'shall not be infringed' and whatever law directly conflicts with the Second Amendment.

I'm sure the argument that a convicted felon looses protection of select rights as a citizen when he offends will be brought up which would pull the entire thing down into legal mires determining what offenses do and don't qualify, what rights are taken away, etc.

Sounds like a lot of legal work so, in all likelyhood, it will probably get dismissed to maintain the status quo.

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just a guy, with a Glock wrote:

Yep we want dangerous Felons to be allowed to own and carry firearms, sure.

Maybe we should make this convicted Felon a honorary member of this site. From what I have been reading lately, he will fit right in.

While we are at it, lets restore ALL convicted felon's right to vote so they can be Ron Paul supporters.

Maybe even allow them an occasional home invasion or rape, just as long as they are pro 2ND amendment.

:banghead::banghead::banghead::banghead::banghead::banghead::banghead::banghead::banghead::banghead::banghead::banghead::banghead::banghead::banghead::banghead::banghead:

pathetic!

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Be careful what you post Doug. Your posting was about a convicted drug user. JAGWAG will call the DEA!!

I do not have a complete picture of Mr. Lucky. What I do know is he spent 4 and ½ years behind bars for possessing drugs and handguns.

I hate drugs. I think that they are very bad and have never used any but caffeine, alcohol and what has been prescribed by a physician. That being said, I do not think that the Federal Government or the Commonwealth should criminalize what people do with their own bodies. I do not think that the Federal Government has the legitimate constitutional authority to regulate or ban drug usage. When congress wanted to ban alcohol it was recognized that the constitution had to be amended. If we think that narcotics should be banned, then we should again have a constitutional amendment.

Our society has placed many restrictions on felons. In many states felons are barred from voting. Sex offenders are required to register, and in many states, are restricted in where they can live.

I do not think that the Federal Government has legitimate constitutional authority to regulate firearms. I am very concerned that the Federal Government attaches a firearms liability to court findings based upon the maximum term associated with conviction (Not even necessarily a felony.) This is a case of the Federal Government exceeding its limited powers.

The key is to associate the liability to the criminal conviction. Armed robbers, IMHO, should be permanently barred by the state/commonwealth from owning firearms, A woman convicted of simple drug possession should not. To arbitrarily suspend constitutional rights in the way that they are now stripped from those that are convicted is, IMHO, unconstitutional based upon the cruel and unusual punishment clause.

Based upon what I have read about Mr. Lucky’s case, I hope he wins. I hope he wins not based upon his right to keep and bear arms, but upon the cruel and unusual punishment clause of our constitution and the limited power that we have given the Federal Government.

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I don't have a problem with someone who is demonstrably violent and predatory being denied gun rights, but not all criminals - even felons - victimize people. At the risk of being a bore, my own case is one such example. I've victimized nobody, and yet my livelihood and future gun rights, inter alia,hang in the balance. A manifest injustice, as I see it, and ultimately because I was driving a car (van) without a trunk and transporting an unloaded gun the only way I could, and in conformity with the applicable section of the state law concerning weapons transport.

This particular guy's case seems a poor choice for a challenge, but I think it's a topic worth examining generally.

-ljp

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When God handed down the law, He made provision for one of two penalties if a miscreant was found guilty of an infraction: execution or restitution. There was no crime if there was no injured party. There was no putting a human being in a cage for a period of time or until they died. If the penalty was execution, it was all over forever. If the penalty was restitution, once restitution was made, the miscreant was no longer a miscreant and he/she was made whole.

With our current justice system, we have thousands of people in cages for breaking a law without an injured party. We have many thousands more giving up their treasure to the state, county or municipality for breaking some law without an injured party.

Once a person who is convicted of a felony or some misdemeanors is released from prison, they are not made whole and welcomed back into society to be productive members of said society, they continue to be punished for the rest of their life.

Just my $0.02 and some food for thought.

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(snip)

Lucky's latest arrest came in 2004 after police pulled over the truck he was driving and found a handgun in his waistband. Officers had been on the lookout for the vehicle because, a few days earlier, a firefighter claimed to have seen a man get out of the truck and fire a gun at a group of people near the intersection of Park Place and Nostrand Avenue in Brooklyn.

Prosecutors say Lucky's criminal record dates back to May 1992, when, at age 19, he shot a man.

Have we lost sight of the fact that human nature defines us as creatures of habit? Yes, Lucky is an American resident, but he ceased being a citizen when he took the life of another American citizen (assuming this was not in self defense). His truck was ID'd in a shooting and he killed a man. This means that he will be involved in another incident where someone will be hurt or killed sooner than later. "... that all men are created equal."means that we started out equal, but our actions can jeopardize our unalienable rights. There are people out there who have given up their rights as citizens, and Lucky has placed himself in that category.

I cannotsupport this man'sRKBA when he is notthe individual for whom my constitution was written.

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.40 Cal wrote:

Yes, Lucky is an American resident, but he ceased being a citizen when he took the life of another American citizen (assuming this was not in self defense). His truck was ID'd in a shooting and he killed a man.

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where in the article does it say he killed a man?

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Prosecutors say Lucky's criminal record dates back to May 1992, when, at age 19, he shot a man. Then, in September of that year, police found him in possession of two handguns and a small amount of crack cocaine. He was sentenced to six years and released after four and a half.

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I did not get out of the article whether he was sentenced for shooting the man or for possession of handguns and coke. Would it make a difference to you since the shooting had a victim? I have a personal opinion on this case but see both sides of it. I don't know that there is any such thing as a victimless crime as sometimes the perpetrator is the victim himself. Many laws are to protect us from our own stupidity.


Edit to add: The paid his debt to society stuff is BS many times. Last week a local 24 year old girl was sentenced to8 years for felony DUI in a case where she ran into a parking lot and killed two people. She will serve a maximum of 6 years and be out but two families will suffer the loss of their loved ones for the rest of their lives and three other people will suffer the injuries suffered from her actions for the rest of their lives. But ineight years whe will have paid her debt to society.


http://www.scnow.com/midatlantic/scp/news.apx.-content-articles-FMN-2007-12-21-0013.html

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.40 Cal wrote:

(snip)

Lucky's latest arrest came in 2004 after police pulled over the truck he was driving and found a handgun in his waistband. Officers had been on the lookout for the vehicle because, a few days earlier, a firefighter claimed to have seen a man get out of the truck and fire a gun at a group of people near the intersection of Park Place and Nostrand Avenue in Brooklyn.

Prosecutors say Lucky's criminal record dates back to May 1992, when, at age 19, he shot a man.

Have we lost sight of the fact that human nature defines us as creatures of habit? Yes, Lucky is an American resident, but he ceased being a citizen when he took the life of another American citizen (assuming this was not in self defense). His truck was ID'd in a shooting and he killed a man. This means that he will be involved in another incident where someone will be hurt or killed sooner than later. "... that all men are created equal."means that we started out equal, but our actions can jeopardize our unalienable rights. There are people out there who have given up their rights as citizens, and Lucky has placed himself in that category.

I cannotsupport this man'sRKBA when he is notthe individual for whom my constitution was written.

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The report says at 19 "he shot a man",not "he killed an American Citizen".

That leaves many possibilities, from he blew an American Citizen's brains out execution style all the way down to he grazed an illegal immigrant while shooting off his gun at a new years party. Don't read into the report.

And have they proven that it was Lucky who shot into the crowd a few days earlier? Did the Fireman possitively identify the shooter as Lucky? We don't know.

Without complete information we cannot say for sure whether he is a "Violent Offender".

We don't need to deny anyone the RKBA. We need to punish criminals harshly for using guns for criminal activity.

Let's say someone deals pot and is also an avid deer hunter. He deals from his house and has a hunting rifle in a case in his closet. Should he go away for an extra 10 years because he had a gun in the house while dealing pot, I don't think so.

Let's say someone deals crack on the corner. He has a .45 in his waistband. He shoots a customer for trying to short change him for a couple of rocks. Put him away on the crack charges and put him away for another 20 years for the use of a gun for the sole purpose of committing a crime.

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Decoligny wrote:

Let's say someone deals pot and is also an avid deer hunter. He deals from his house and has a hunting rifle in a case in his closet. Should he go away for an extra 10 years because he had a gun in the house while dealing pot, I don't think so.

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Not the same thing. Victimless crime.

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Let's say someone deals crack on the corner. He has a .45 in his waistband. He shoots a customer for trying to short change him for a couple of rocks. Put him away on the crack charges and put him away for another 20 years for the use of a gun for the sole purpose of committing a crime.

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Definitely should lose RKBA

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.40 Cal wrote:

Decoligny wrote:

Let's say someone deals pot and is also an avid deer hunter. He deals from his house and has a hunting rifle in a case in his closet. Should he go away for an extra 10 years because he had a gun in the house while dealing pot, I don't think so.

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Not the same thing. Victimless crime.

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Let's say someone deals crack on the corner. He has a .45 in his waistband. He shoots a customer for trying to short change him for a couple of rocks. Put him away on the crack charges and put him away for another 20 years for the use of a gun for the sole purpose of committing a crime.

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Definitely should lose RKBA

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Exactly my point. Just because you have a weapon while a "crime" was commited shouldn't make it a gun crime. And just because you commit a crime shouldn't remove your RKBA.

But, if you commit a violent crime USING a gun to do so, you should be put away for a very loooooonnnnng time.

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Agreed

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Snip from OP:

So this month, Mr. Batchelder, asked a federal judge in Brooklyn to answer "yes" to a question that makes many staunch gun owners uneasy: Does the Second Amendment give convicted felons the right to carry handguns?

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Personally I think this is an awesome argument! Not the specific argument concerning Lucky and his case, but the argument of whether felons are protected by the 2A.

If you didn't notice, the media took a giant step from the argument of whether law-abiding citizens should be able to possess guns to that of whether felons should be able to legally possess guns! And if we're even considering allowing felons to posses guns, then the previously common argument concerning law-abiding citizens become a completely moot point.

My only hope is that Heller (aka Parker) will be able to continue this paradigm shift to the point that the focus become on the obscure details of the 2A, and not on the people, as it has been thus far.

Therefore, next time you hear an argument over felons being able to posses guns or college students being allowed to open carry on campus, just know that this is a sign that the times are changing and that our rights are being restored!

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I doubt this case will ever reach SCOTUS, and even if it somehow would, they'll probably narrow the question down to, "Is the sky blue?" or something of the like.

One point I would bring up is that by saying that felons shouldn't be allowed to possess guns, it partially perpetuates the myth that guns cause crime. Just like anyone else, if a felon is going to commit a murder or assault, he is going to use whatever he can get. If he can get a gun, he'll use that. If he can't get a gun, but can get a knife, a baseball bat, or a wet noodle, he'll use that instead. Being on the offensive, he has the advantage of not having to be too picky about his weapon choice.

I have no problem letting felons who have done their time possess guns. Provided that the criminal justice system begins handing down more relevant sentences. And provided that those who are under 21 have an opportunity to legally carry a firearm to defend themselves.

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imperialism2024 wrote:

it partially perpetuates the myth that guns cause crime. Just like anyone else, if a felon is going to commit a murder or assault, he is going to use whatever he can get. If he can get a gun, he'll use that. If he can't get a gun, but can get a knife, a baseball bat, or a wet noodle, he'll use that instead. Being on the offensive, he has the advantage of not having to be too picky about his weapon choice.

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Do you feel the same when it comes to violent felons? Say if someone beat his wife into the hospital? Technically speaking, a violent felon with a gun could turn that myth into a fact if they were still allowed to own a gun.

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Wynder wrote:

imperialism2024 wrote:

it partially perpetuates the myth that guns cause crime. Just like anyone else, if a felon is going to commit a murder or assault, he is going to use whatever he can get. If he can get a gun, he'll use that. If he can't get a gun, but can get a knife, a baseball bat, or a wet noodle, he'll use that instead. Being on the offensive, he has the advantage of not having to be too picky about his weapon choice.

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Do you feel the same when it comes to violent felons? Say if someone beat his wife into the hospital? Technically speaking, a violent felon with a gun could turn that myth into a fact if they were still allowed to own a gun.

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To clarify a bit...

a violent felon with a/an [insert object here] could kill. It doesn't so much matter whether he can use a gun or not. Banning felons from owning guns still allows them an offensive advantage (in that they can plan and use non-gun methods of committing crimes), but denies them a defensive advantage that is becoming increasingly necessary for living successfully in today's society.

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imperialism2024 wrote:

Wynder wrote:

imperialism2024 wrote:

it partially perpetuates the myth that guns cause crime. Just like anyone else, if a felon is going to commit a murder or assault, he is going to use whatever he can get. If he can get a gun, he'll use that. If he can't get a gun, but can get a knife, a baseball bat, or a wet noodle, he'll use that instead. Being on the offensive, he has the advantage of not having to be too picky about his weapon choice.

Click to expand...

Do you feel the same when it comes to violent felons? Say if someone beat his wife into the hospital? Technically speaking, a violent felon with a gun could turn that myth into a fact if they were still allowed to own a gun.

Click to expand...

To clarify a bit...

a violent felon with a/an [insert object here] could kill. It doesn't so much matter whether he can use a gun or not. Banning felons from owning guns still allows them an offensive advantage (in that they can plan and use non-gun methods of committing crimes), but denies them a defensive advantage that is becoming increasingly necessary for living successfully in today's society.

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Oh sure, absolutely. I just saw a crack there and though I'd mention something about it.

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Wynder wrote:

imperialism2024 wrote:

Wynder wrote:

imperialism2024 wrote:

it partially perpetuates the myth that guns cause crime. Just like anyone else, if a felon is going to commit a murder or assault, he is going to use whatever he can get. If he can get a gun, he'll use that. If he can't get a gun, but can get a knife, a baseball bat, or a wet noodle, he'll use that instead. Being on the offensive, he has the advantage of not having to be too picky about his weapon choice.

Click to expand...

Do you feel the same when it comes to violent felons? Say if someone beat his wife into the hospital? Technically speaking, a violent felon with a gun could turn that myth into a fact if they were still allowed to own a gun.

Click to expand...

To clarify a bit...

a violent felon with a/an [insert object here] could kill. It doesn't so much matter whether he can use a gun or not. Banning felons from owning guns still allows them an offensive advantage (in that they can plan and use non-gun methods of committing crimes), but denies them a defensive advantage that is becoming increasingly necessary for living successfully in today's society.

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Oh sure, absolutely. I just saw a crack there and though I'd mention something about it.

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Fair enough

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If a man is bad enough that he cannot be trusted with a gun, then in my opinion he cannot be trusted on the streets and should either be locked up or be dead.

And if they cannot be reformed, they also should not be in prison. They should be dead. Its cruel, but its also wrong to waste our tax dollars keeping people in prison.

Of course, the whole prison system needs a reform but thats another subject entirely.Prisoners could be rehabilitated more easily if they were not permitted to interact with other prisoners who reinforce their bad ways. They also should not have luxury like TV, and should only be permitted to readU.S. history, lawand their choice religious texts.

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I think that he doesn't have a ghost's chance of winning this motion. I wish for once that a law abiding person mounted a challenge to gun control laws on second amendment grounds. Maybe then it would have more of a chance of suceeding. But this is New York we are talking about. :uhoh: