Posted on 01/23/2016 7:49:58 PM PST by Bidimus1
An interesting small step maybe.
oops
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In D.C. v. Heller, the Supreme Court stated that bans on gun possession by “the mentally ill†are constitutional. But federal law bans gun possession not just by the mentally ill, but by anyone who “has been adjudicated as a mental defective or has been committed to any mental institution.†Arlyn Johnson is being prosecuted under this law, because he possessed a gun after having been committed to a mental institution “in 1995 and 1997.â€
In Tuesday’s United States v. Johnson (N.D. Iowa), a federal magistrate judge concluded that,
[A] statute that operates to deprive Johnson of a fundamental constitutional right for the rest of his life, based solely on brief mental health commitments two decades ago, does not appear to be “narrowly tailored to serve compelling state interests.†If there was no more to the story, Johnson may well have a compelling argument that Section 922(g)(4) cannot constitutionally criminalize his possession of firearms.
But the court concluded that the federal statute doesn’t actually impose such a lifetime ban on people in Iowa. Iowa law lets people who have been committed to a mental institution “petition for relief from the disabilities imposed†by the federal gun ban. (The federal 2008 NICS Improvement Amendments Act authorizes and indeed encourages such state relief-from-disabilities provisions.) Under the Iowa law,
The court shall receive and consider evidence in a closed proceeding, including evidence offered by the petitioner, concerning all of the following:
a. The circumstances surrounding the original issuance of the order or judgment that resulted in the firearm disabilities imposed by18 U.S.C. § 922(d)(4) and (g)(4).
b. The petitioner’s record, which shall include, at a minimum, the petitioner’s mental health records and criminal history records, if any.
c. The petitioner’s reputation, developed, at a minimum, through character witness statements, testimony, and other character evidence.
d. Any changes in the petitioner’s condition or circumstances since the issuance of the original order or judgment that are relevant to the relief sought….
The court shall grant a petition for relief … if the court finds by a preponderance of the evidence that the petitioner will not be likely to act in a manner dangerous to the public safety and that the granting of the relief would not be contrary to the public interest…. The petitioner may appeal a denial of the requested relief, and review on appeal shall be de novo [i.e., with no deference paid to the trial court’s denial -EV]. A person may file a petition for relief … not more than once every two years.
Johnson, the magistrate notes, “had more than four years before the acts alleged in the indictment to file a petition, establish that he is not dangerous and obtain the restoration of his right to keep and bear arms.†And “Johnson does not allege that Iowa’s relief-from-disabilities procedures are illusory or unduly burdensome.â€
Because of this, Johnson isn’t really facing a possibly unconstitutional lifetime ban on gun possession, and the legal scheme — coupled with the Iowa relief-from-disabilities provision — is “narrowly tailored when applied to him.†But if a state doesn’t provide such a relief-from-disabilities provision, then under the magistrate judge’s reasoning a person who had been committed long ago, and seems not to be dangerous now, would indeed have a Second Amendment claim.
It will be interesting to see whether the district court adopts the recommendation; if so, then I expect this case to be quite important in this area of Second Amendment litigation.
Lunatic.../S
The leftists will exploit any and all means to deprive as many Americans as possible of their second amendment rights. They will expand definitions and the restricted classes of citizens until nobody but a government agent can legally posses a firearm.
I think you missed the gist of it.. the logic is that the .gov will NOT prima facia end a fundamental right for life.
Next I hope some one sues on issue of a misdemeanor doing so. I do not think any one should be depived a right for life on ANY misdemeanor.
They will hem and haw and give reasons why John Q Public should not be trusted with firearms but real Americans will ignore their performance and laugh, knowing the true meaning of the 2A, and maintain their guns until such time as they are needed.
Shall not be infringed. It admits of no exceptions. Only the involuntary servitude clause can be interpreted to bar a class of people from possessing and/or bearing arms of any sort. That could be read to permit the dispossession of incarcerated criminals while incarcerated.
The Lautenburg amendment does just that. Next it will be anyone convicted of a misdemeanor assault and then a DUI or a minor possession charge. then it will be anyone ever prescrived xanax. They will use state governments and will ignore the supreme court and will spend any amount of tax payer dollars to complicate the lives of as many firearms owners as possible because there are no consequences for doing so and it feels good.
They already think all conservatives are crazy or stupid.
I’ve even taken sociology studies for pay where the incredible bias is “conservatives are crazy/stupid/insanely biased/ignorant”. In a couple cases, I wrote the people who did the study about how biased their assumptions were.
But given how many psychologists and sociologists already believe conservative = every bad label, the “no guns for crazy people” if upheld to a broad definition means nearly everyone who wants one.
humorously I have wondered if they think all gun owners are on the verge of violence.. why do they keep trying to make us mad?
“........... but real Americans will ignore their performance and laugh, knowing the true meaning of the 2A, and maintain their guns until such time as they are needed”.
Exactly!
Liberalism is a mental disorder, to quote Michael Savage.
What they reflexively sympathize with they support, what they fear they want to ban, and the reality of the world or consequences of prior actions are irrelevant.
To paraphrase Dennis Prager, if they had good intentions, the real consequences are irrelevant, and if they want to do it for good reasons (sympathy, pity, guilt), it is thus the right thing to do regardless of the rights or preferences of others - and because they associate what they feel at that moment with morality, anyone who opposes them is immediately labeled as evil.
So based on liberal mental illness, if they are afraid of it, it must be banned, but because they act out of goodness (warm feelings or fear), they are right and all who oppose are wrong.
TLDR: they are afraid of guns and see getting rid of it moral, so they don’t care about our rights - or logic.
It is the same trend where Islam and transgenderism trump feminism.
Mentally ill men in dresses or had organs removed get women of the year awards, trumping the women, and feminists can’t argue with it or else get blacklisted as “transphobic”.
White guys wolf whistle at a guy, it is sexist, end his career. Muslim men target white women for gang rape on a mass scale, from Cologne 2016 to Rottherham England 2010, and multi-culturalism trumps women’s rights, shut up, criticizing the poor Muslims is racist.
I looked but did not see the terms “except for the mentally ill” anywhere in the 2nd. Perhaps they forgot Article 5 is the only way to add to the Constitution.
well, all agreed there. But my post was meant to show that slow small steps can be made. The nearly Utopian dream of getting it all fixed in one step is nice but it is only a dream. The fight for freedom is never ending and its enemies are both foreign and domestic
I think this goes back to Socrates and Plato. Is the average person smart enough and thus should be free to manage their own affairs? Or are most people too stupid to know what they should do and need an elite to tell them what to do?
Conservatives are the “most are and should be free”. Liberals either want to be taken care of or want to be the masters. And those who want to be taken care of don’t realize it requires them to be slaves in exchange for the care.
I do not think a felony conviction should either. Once somebody completes their sentence, they should get their RKBA back. If they are too dangerous to have their rights restored, they should not be released in my view.
a fairly good point, but one step at a time.
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