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Thread: Admin no carry rules a due process violation?

  1. #1
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    What do you guys think about arguing against all these administrative prohibitions on carry (library carry for example) from a 4th Amendment due process standpoint?

    nor be deprived of life, liberty, or property, without due process of law;
    If the Library Board, or the Board of Fire Commissioners, or the Parks Board makes an administrative rule banning carry, aren't violations of that rule exempt from due process because they are not criminal code? And they can't be criminal code because of state preemption.

    So would it follow that a charge of trespassing for violation of an administrative no carry rule would be a prima facie due process violation because it originated from an act that is exempt from due process?

    I'm not very good with the abstract thinking. That's about as far as my feeble mind can take this. Help me flesh it out a little.

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    deanf wrote:
    I'm not very good with the abstract thinking.
    You're much better than the people who dream up these administrative rules in violation of human rights.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    Interesting........Very interesting, It is a bit of a brain twister but I like where you are coming from, only thing is trying to explain the logic to a stubborn cop may be difficult.

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    Very true! Sometimes the "average" feeble minded leo (or civilian for that matter) may get lost in those BIG (dictionary) words!

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    Regular Member thebastidge's Avatar
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    Due process means it's not arbitrary on-the-spot. If a governmental body empowered to make rules and administrative code, deliberates and decides on a rule, and it applies equally to everyone, it is "due process".

    It may still be null and void for other reasons, but it has been given due process.
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    Regular Member Gene Beasley's Avatar
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    thebastidge wrote:
    Due process means it's not arbitrary on-the-spot. If a governmental body empowered to make rules and administrative code, deliberates and decides on a rule, and it applies equally to everyone, it is "due process".

    It may still be null and void for other reasons, but it has been given due process.
    Where do you come up with this? I was under the impression that due process came into play in several forms, but all had to due with the individual being able to challenge a governmental ruling. In other words, the due process for denying your liberty is the court of appeals, then the state supreme court, then the US circuit COA, etc.

    Just because a body has deliberated has no bearing. The Topeaka Board of Education no doubt deliberated segregation in the early 50's, but due process is the where an individual or a group of individuals (see where I'm going here) completely changed how society looks at race. Heller will hopefully be the beginning of our change of laws and culteral biases against guns and OC.

    Anyway, am I completely missing your point? I normally agree with your posts, but you caught me off guard with this one.

    Gene Beasley

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    Regular Member thebastidge's Avatar
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    Well, first of all: IANAL. And you have made me look into a little further.

    And I would agree that "due process" includes both trial by jury and the right to petition government for redress, but I believe it also explicitly means that a process of deliberative decision in legislation was applied. It has to have been through the formal deliberative process of whatever body is empowered to make law at that level.

    For example, the Sheriff cannot make up a crime on the spot in order to arrest you: it has to have been a crime before you did it. This is alsorelated to the concept of ex post facto legislation and grandfather clauses.

    And finally it includes the right to have a jury try the facts and the law, to see how they apply to the case (this is your chance to petition for redress, along with the appeals process if the first court doesn't do what you think is right.) so, if you're arrested under this law, orpunished under this law, you must have some kind of hearing and an appeal process. As long as you get that, you have "due process".

    The other point I made, that it may be null and void for other reasons,by that Imean that a higher law may preclude it,like gun law pre-emption in Washington State, or Constitutional issues, or even physical law and natural principles. You can't legislate pi=3, although some have literally tried to do so in the past.

    http://www.wired.com/science/discove...dayintech_0205

    You can't write laws that are so vague as to not be understood, so general as to entrap everyone, or that are literally unenforceable on a consistent basis (such that you could only enforce it arbitrarily and have no hope of catching and punishing everyone- it then becomes unfair to the ones you decide to enforce it on.) See "procedural due process" and "substantive due proces":

    http://www.usconstitution.net/consttop_duep.html

    There's a lot of ideas involde in "due process"

    http://en.wikipedia.org/wiki/Due_process

    "DUE PROCESS - The idea that laws and legal proceedings must be fair.":

    http://www.lectlaw.com/def/d080.htm

    "The Due Process Clause serves two basic goals. One is to produce, through the use of fair procedures, more accurate results: to prevent the wrongful deprivation of interests. The other goal is to make people feel that the government has treated them fairly by, say, listening to their side of the story. "

    http://www.law.umkc.edu/faculty/proj...ueprocess.html

    It's possible that the issue we're discussing mightfail a "substantive due process" test, but would most likelymeeta "procedural due process" challenge.
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    lilothedog wrote:
    Very true! Sometimes the "average" feeble minded leo (or civilian for that matter) may get lost in those BIG (dictionary) words!
    I'm not sure most people, cops or not are feeble minded. Ignorant of the law at times, or sometimes just unaware, but not feeble minded. When I deal with people, I will assume for the sake of the conversation they are on equal footing with me. Now sometimes I am evenly met, sometimes I run into folks who know more than me, and sometimes I run into morons. But if I go around assuming folks are "feeble minded" I'm liable to open myself up for a world of hurt later on down the road.

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    Regular Member Gene Beasley's Avatar
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    deanf wrote:
    What do you guys think about arguing against all these administrative prohibitions on carry (library carry for example) from a 4th Amendment due process standpoint?

    nor be deprived of life, liberty, or property, without due process of law;
    Just a point of clarification - the due process clause is from the 5th and then again in the 14th

    Amendment V
    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.

    Amendment XIV

    1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
    I will venture that taken in context of the whole amendment, this is purely procedural as opposed to deliberative or substantive, at least for the 5th. I need to read up more on the 14th and some case law that uses it as its basis.

    [edit: forgot the 14th...oops]


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