Posted on 04/29/2005 5:23:31 PM PDT by P_A_I
Calaveras County Safe Again
By Jeff Knox (Manassas, VA, April 27)
The people of Calaveras County – the remote central California mining region made famous by the gold rush of 1849 and the jumping frogs of Mark Twain – can breath easier now that Richard Wilmshurst has been brought to justice. Wilmshurst was convicted last month of illegal possession of a machinegun and illegal possession of "Assault Weapons" in California. The judge sentenced Wilmshurst to three years probation and ordered that he dispose of his "arsenal". Wilmshurst, by the way, is a car dealer and land speculator with a law degree, a federal firearms import license, and a class 3 license. This could be the Second Amendment case we've been waiting for or it could be another case of a white-hat taking a fall because white-hats are easier targets than black-hats.
Wilmshurst's troubles began in January of 2003 when an ATF agent performing a routine inspection of his import inventory mentioned that a couple of the guns were not legal for Californians to own. Wilmshurst wasn't worried; the guns were within the umbrella of his import business and were intended for distribution outside the state of California for sale to law enforcement.
In February, officers from the California Department of Justice Firearms Enforcement Division, using information obtained from ATF, staged raids on Wilmshurst's home and Angel Camp car dealership. The raids were conducted in full "storm-trooper" fashion with black "ninja" suits, heavy body armor, and true assault weapons. This being "people friendly" California, the assault force included a medic to monitor 69-year old, stroke survivor, Wilmshurst's blood pressure as they dumped the contents of his safe and confiscated every gun he or his businesses owned.
Even though it is a violation of federal law for information obtained from records generated in compliance with import license regulations to be used directly or indirectly as evidence against the licensee, the judge refused to hear arguments that the warrants were illegal and that all evidence seized was inadmissible. Instead, he barred any mention of federal law in the courtroom and instructed the jury that if the prosecutor proved that Wilmshurst was in possession of the firearms in question (something that Wilmshurst never denied), that the jury must return a guilty verdict.
The guilty verdict was summarily returned and last week, Wilmshurst was sentenced to three years probation and, as a convicted felon, ordered to dispose of all of his firearms.
The judge in the case – who happens to be the same judge that ruled against Wilmshurst in a property case currently on appeal – expressed dismay that Wilmshurst is showing no remorse for his crimes… Wilmshurst is planning to appeal the conviction and has filed suit against the Attorney General of California for violating federal law in conducting the raid and for violating Wilmshurst's civil rights under the Second Amendment.
The Firearms Coalition is bringing the Wilmshurst case to the attention of Second Amendment scholars and firearms civil rights organizations in hopes of generating "friend of the court" briefs and perhaps getting Mr. Wilmshurst the specialized legal assistance this case clearly deserves.
We will keep you posted as the case develops. In the meantime, let this be a reminder: Your white hat is no defense against aggressive police, prosecutors, and judges. There are many things that Richard Wilmshurst would rather be doing with his time, money and midnight oil. Cross your T's and dot your i's…
Yours for the Second Amendment,
Jeff
Jeff Knox Director of Operations The Firearms Coalition
I gave you a case where it was. Read it and educate yourself.
P_A_I demonstrates again why he's not worth a response. He misrepresents arguments to score points as if doing so makes him some sort of seasoned debater. I don't often agree with you, Mr. Paulsen, but at least generally you disagree with civility. P_A_I, on the other hand, I agree with on many issues. But I completely disagree with his childish, insulting tactics, and won't be trading posts with him, ever.
Hey, you can either forget about a penumbra'd right or we stop right now.
I put a lot of work into that scenario, and you are starting to pi$$ me off.
Happens every time. Soon robby will pick up his marbles and go home, unable to understand why the kids won't play under his dictates..
This is America in 2005.
All vestiges of that pesky 'freedom' thing are being swept aside.
Cheered on by a misguided faction that insists that the State can infringe on individual human rights.
Recap? -- Two bits your 'case' was inappropriate.
Yes, its established that you've picked up your marbles on numerous occasions.
-- Try to learn to live with that fact.
Constitutions, state or federal, do not confer rights. They either protect a right or they don't.
The second amendment tells the federal government that they shall not infringe on the right of the people to keep and bear arms. That's all it says.
The states are bound by their own state constitution. In many cases, the state constitution contains wording similar to the second amendment. In North Dakota, your state constitution reads:
"All individuals are by nature equally free and independent and have certain inalienable rights, among which are those of enjoying and defending life and liberty; acquiring, possessing and protecting property and reputation; pursuing and obtaining safety and happiness; and to keep and bear arms for the defense of their person, family, property, and the state, and for lawful hunting, recreational, and other lawful purposes, which shall not be infringed."
In Illinois it reads:
" Subject only to the police power, the right of the individual citizen to keep and bear arms shall not be infringed."
That why North Dakota has more favorable laws than Illinois.
When you live somewhere that can kill you 6 months out of the year, just for being outside too long ( a matter of hours, not days), you don't embrace much nonsense.
Unfortunately, as our rural/urban demographics shift, and more people lose sight of this, we, too, are in peril.
Congress has the authority to regulate commerce with foreign nations, and among the several states, and with the Indian tribes. But people wouldn't trade in infected livestock or other diseased crops for long, even without Congressional 'protection,' to my way of thinking. 'Regulation' there is simply restriction, which is what the Constitution was also intended to end, with its prohibitions on interstate duties and tariffs.
As to stolen vehicles, that is an interstate CRIME, and one that is covered sufficiently in Article IV. "A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime." No Congressional legislation is really necessary to deal with extradition of car thieves, now, is it? I can't think of any scenario where a person in one state could be charged under long-arm statutes in a different one and this Constitutional mandate suddenly not apply.
As for 'women to be used for prostitution,' same difference. If it's a crime in one state to commit prostitution, and someone's charged with aiding and abetting it, seems to me we don't need to use the ICC to go after them.
And I may well agree with strict constructionists, or the occasionally correct pronouncements of a nearly strict constructionist like Scalia or Thomas, but I'll never agree with an expansionist decision, whether written by a SupCt justice or Jefferson himself rises from the grave to pen it. And Taft was an expansionist with a capital T, as he demonstrated in Brooks, which was pure expansionism, improperly justifying a law exercising federal police power, as usual, "for the benefit of the public," to prevent a crime that would better have been resolved by state courts. After all, in Brooks, the defendant was charged with interstate auto theft. SOMEONE caught him--and not surprisingly, since he had to sell the cars he'd stolen, and it's not as if he was hiding! He owned a garage at which the stolen property was being sold.
And of course, the silly justification for the Brooks convictions are based on prior silly justifications. My favorite of that crop is Weber v. Freed, 239 U.S. 325, where Congress got the power to prohibit the importation of pictorial representations of prize fights designed for public exhibition--because of the demoralizing effect of such exhibitions in the state of destination! So under the ICC, Congress can stop what it deems an immoral photo from going between states if it so chooses, which I'm sure will make Chuck Robb and Gary Hart very pleased.
The second amendment tells the federal government that they shall not infringe on the right of the people to keep and bear arms. That's all it says. The states are bound by their own state constitution.
Not true: "--- every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding. -- "
Read Article VI for the truth.
Interesting that Madison used exactly the same word to cover all three areas of commerce, and that "to regulate" commerce with foreign nations gave Congress the power to prohibit foreign trade but, according to you, "to regulate" interstate commerce just the opposite.
Interesting that the natural state of commerce is free and open -- to "regulate" such a market is to restrict it in some manner.
But "to regulate" interstate commerce, according to you, does not include the power to prohibit, despite countless court rulings to the contrary as early as 1884.
Well, I feel kind of silly documenting all of these cases, citing quotes, and providing links which support my contention while you, taking the opposite view, merely scoff at such court opinions and simply imply that they go against strict constructionism.
Here's an easier way: substitute "5th Amendment violation" in place of "penumbra'd right" (or "X") in my response. It does not change my argument. The State Supreme Court found a 5th Amendment violation in your scenario. That supposed 5th Amendment violation is what would be challenged in USSC.
Since we have assumed that CC is not protected by the Second Amendment, its incorporation status is irrelevant in deciding whether CC violates the 5th Amendment or not. IOW, in the scenario you set forth, the Second Amendment could just be whited out. It is not a factor one way or the other.
Interesting that the Commerce Clause uses the term "regulate" rather than "encourage", "ensure", "promote", "make free", "enable", or any word restricting Congress to simply one possible course of action regarding interstate commerce.
---Gosh, that is interesting. Perhaps the Founders used the word "regulate" in the same fashion here as they did in the Second Amendment. Nah...that's just crazy thinkin'!
Interesting that Madison used exactly the same word to cover all three areas of commerce, and that "to regulate" commerce with foreign nations gave Congress the power to prohibit foreign trade but, according to you, "to regulate" interstate commerce just the opposite.
---Did it give Congress the power to PROHIBIT foreign trade? As I recall we fought a war over tariffs imposed that many of the Founders supported, started around about 1775 or so.
Interesting that the natural state of commerce is free and open -- to "regulate" such a market is to restrict it in some manner.
---Yep, sure is interesting. Especially when you interpret regulation to mean restrict. As opposed to what the plain meaning of regulate used to be, the meaning we all seem to agree upon.
But "to regulate" interstate commerce, according to you, does not include the power to prohibit, despite countless court rulings to the contrary as early as 1884.
---Yep. As the Supreme Court you like to cite has claimed the power to regulate is the power to restrict, Congress probably was given the power to restrict foreign trade so it ultimately could completely destroy foreign trade and make America self-sufficient if it wanted. I'm pretty sure that's what the Founders would have wanted, after all. /sarc
Well, I feel kind of silly documenting all of these cases, citing quotes, and providing links which support my contention while you, taking the opposite view, merely scoff at such court opinions and simply imply that they go against strict constructionism.
---Good thing you didn't waste your time, then. Because you got me pegged on that. Especially when your cites go waaay back to 1884, a time of extremely strict constructionism. /sarc
Here's a neat quote on sarcasm:
Sarcasm: the last refuge of modest and chaste-souled people when the privacy of their soul is coarsely and intrusively invaded.--Fyodor Dostoevsky
I'm in NY.
I'm familiar with NY's gun grabbers.
The funny (not funny, in a "ha-ha" sense) thing is that this guy is a dealer and sells to LE (although the article mentioned that it was for out-of-state sales).
It sort of reminds me of CA state officials who were lobbying for the banning of .50BMG rifles, while some CA law enforcement agency (the same one doing the lobbying) had a Barrett .50 in for service. Ronnie Barrett pretty much said that they'd get their rifle back when monkeys flew out of his butt!
Mark
We'll fast forward to the scenario where the case is sent to the USSC.
If the second amendment is not incorporated, and the USSC finds that the state's CC laws violates the citizens 5th amendment, the ruling would only affect that state. The USSC cannot conclude that every state's CC laws violate the 5th amendment.
If the second amendment is incorporated, and the USSC decides that it does not protect CC, and the USSC finds that the state's CC laws violates the citizens 5th amendment, the ruling would affect all states.
Of course. The Jefferson Embargo, 1807-1808. James Madison was Secretary of State.
"Especially when your cites go waaay back to 1884"
Congress probably wasn't aware of your time limit on "use it or lose it". According to you, if Congress didn't use the power to prohibit for the first 100 years, why, that means they never had it, huh?
Sure. Then let's extend that thinking to the 9th and 10th amendments, also. If we haven't found a 9th amendment protected right by now, why, it doesn't exist. If the state hasn't claimed a 10th amendment power by now, well, too friggin' late. LibertarianInExile, the strict constructionist, says too bad.
It would depend on the language of the ruling as to whether it would affect all State CC laws. If the ruling said that allowing citizens to carry concealed arms in public is a violation of the 5th Amendment, why would all State CC not be struck down?
It it's a narrow based ruling against a specific part of a CC law, then it might only void the law in that State.
In either case, the incorporation status of the Second Amendment is irrelevant.
If the second amendment is incorporated, and the USSC decides that it does not protect CC, and the USSC finds that the state's CC laws violates the citizens 5th amendment, the ruling would affect all states.
Same answer. It depends on the language of the ruling, not incorporation status.
If CC has been ruled as not being protected by the Second Amendment, it (the Second Amendment) has no bearing whatsoever on the case.
Maybe if the citizen is trained/licensed/certified, there is no violation of the 5th (ie., citizens are not threatened by those who are licensed). We're just making this up as we go, so let's say there could be a reason.
If the second amendment is incorporated, the USSC defines what the second amendment protects. If it doesn't protect CC, then the 5th amendment challenge is successful and CC is void in all states. No matter what the state CC says, the USSC doesn't recognize it.
So, incorporation DOES make a difference, and that difference is how many states would be affected by a negative USSC ruling.
Think incorporated 1st amendment, shouting fire in a theater. The USSC says it's not allowed. A state cannot say it is.
Prior to incorporation, each state decided.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.