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Thread: Feds assert: Defendants simply do not have a 'fundamental right' to possess guns

  1. #1
    Regular Member Repeater's Avatar
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    Another Case Holding a Gun Control Provision of the Adam Walsh Act Unconstitutional:

    Someone who is charged with possessing child pornography -- among other crimes -- and is freed on bail must be ordered not to possess any firearm. In late December, U.S. v. Arzberger (S.D.N.Y.) concluded that this violated the Due Process Clause, largely because the right to bear arms is protected under the Second Amendment. A few weeks later I found another opinion, U.S. v. Kennedy (W.D. Wash.) (Donohue, M.J.), which holds the same thing (it was decided earlier than Arzberger, but placed online later).

    By the way, here is the government's argument for imposing the firearms restriction, and for reversing the magistrate's ruling:
    [T]here is no indication that the restriction on firearms will impose any burden on Defendant whatsoever, as Defendant has not contended that he has any need to possess or have access to firearms. Moreover, this condition will help ensure the safety of the community by restricting Defendant’s ability to harm himself or others by using a firearm....

    [C]riminal defendants, such as Defendant, who have been charged with a violent crime simply do not have a “fundamental right” to possess or have access to firearms. Accordingly, the condition precluding possession of firearms for the relatively brief time pending trial does not affect a fundamental liberty interest.
    There's no explanation for why simply being charged takes away a defendant's Second Amendment rights. (Note also that Kennedy's crime -- possession of child pornography -- is not a "violent crime" under any normal understanding of the term, though it is a serious crime.) I also put up Kennedy's response to the motion, though it focuses on other matters.


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    In Ohio, you are prohibited from acquiring/receiving firearms if you are under indictment. You can, however, keep firearms you already own/possess unless/until you are actually convicted. The exceptions to this are indictments for narcotics, sex, or violent felonies, in which case, the disability exists from the time of arrest/indictment. If you are acquitted or convicted of a non-prohibiting lesser offense, then your rights are reinstated. Federal law permits a Federal Firearms Licensee to continue their rights/privileges allowed by their license unless/until convicted (sec 925(b) USC).

    It's disturbing that they looked for a "need" on the part of the defendant in considering how much of a hardship it represented in denying him this right. If he had no demonstrable"need" for free speech, would they OK cutting out his tongue?

    -ljp

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    Regular Member demnogis's Avatar
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    Is a conviction for child pornography a felony? If so, his right to keep and bear arms is revoked.
    Gun control isn't about guns -- it is about control.

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    demnogis wrote:
    Is a conviction for child pornography a felony? If so, his right to keep and bear arms is revoked.
    I believe the debate here is whether the defendant should be prohibitied from possessing a firearm after being charged. There has to be a trail and guilty verdict handed down by jury, before the "conviction" comes into play.

    In this case, there has been no trial, yet. Therefore, no conviction.

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    Regular Member demnogis's Avatar
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    Ah, I didn't see that part. Pre-trial, he is not convicted of anything yet.

    No rights have been revoked. Except maybe to leave the country or join the armed services.
    Gun control isn't about guns -- it is about control.

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    Thats when you sign over your guns to your kids/wife/brother, somebody who will give them back when you are found Not Guilty.

    Don't wait for the verdict, or they WILL take your guns if found guilty.

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