Posted on 10/20/2014 12:55:55 PM PDT by Laissez-faire capitalist
Former border patrol agent, convicted on drug charges, appeals to high justices after lower courts bar him from selling weapons.
The Supreme Court will decide whether the federal prohibition on firearms for felons terminates all ownership rights.
The US Supreme Court agreed on Monday to decide whether a Florida man convicted on drug charges and forced to give up his firearms under federal law could sell the guns or transfer ownership to his wife or a friend.
The court agreed to hear an appeal filed by Tony Henderson, a former US border patrol agent who was convicted of distributing marijuana and other drug offenses in 2007 and sentenced to six months in prison.
(Excerpt) Read more at theguardian.com ...
Simply because I point out that a law isn't unconstitutional doesn't mean that I agree with it.
I would incarcerate people who are clearly dangerous to others, and do so for likely longer than they are being held now. I would also work their asses off. If they didn't work, they would get bread and water.
For people who have done things like destroy $50k in property, I would treat them separately, forcing them to pay off the actual damage, while also restricting certain freedoms such as travel. When they were done, I would be in favor of a simpler restitution process that would allow them to petition (not at undue expense) for full restoration of rights. Recidivism would be a big factor in restoration.
I could see other people being punished with logical lifetime restrictions due to specific behaviors. For example, a man that has been arrested multiple times for reckless endangerment with a firearm, could lose his right to a firearm for life.
These are all issues of addressing and changing criminal law via the legislature, not constitutional issues.
For nearly 50 years I've been helping ex-convicts move on with their lives. It hasn't been easy, and I've seen quite a few men with futures return to criminal life. That being said, I thought I'd share my experiences with all you good folk here.
All too often, confusion surrounds the intent of criminal rehabilitation in the United States. Here are the basics:
The problem with loss of rights such as firearms after a convict completes his probation and full sentence is that he's never able to complete step 6. So, what these laws permanently restricting rights do is extend the probationary period de-facto until death. Extending probation without any violation of those conditions prior to the extension is illegal in every state.
This is also against common law since the Magna Charta was first penned. And it is Unconstitutional for that reason.
Here's how existing laws can become useful in protecting the citizens of this great nation AND provide full rehabilitation:
If dangerous criminals must prove to society they are no longer dangerous, extend the probationary period longer than the statistical average time-frame of repeat offenses of the crimes committed.
If you've got another definition, I'm listening.
I was asked why I wanted to treat felons as second-class citizens. Are you harassing that poster for using that term? No. You asked me how I define the terms and I gave you the clearest possible answer.
What were expecting?
I agree.
And you're wrong about that law article.
You're only interested in your own opinion. That's the very definition of a gasbag.
Find a mirror. Drag yourself to it if necessary. Take a long hard, cold look.
Administrative law is the body of law that governs the activities of administrative agencies of government. Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda. Administrative law is considered a branch of public law. As a body of law, administrative law deals with the decision-making of administrative units of government (for example, tribunals, boards or commissions) that are part of a national regulatory scheme in such areas as police law, international trade, manufacturing, the environment, taxation, broadcasting, immigration and transport.
Note that sentencing laws passed by the state legislature do not meet any of that criteria, as they are clearly legislative and not administrative.
Disingenuous, as always. SampleGas pretends that the pursuit of felony charges by the State's persecutors is a "pristine exercise" of jailing raping child-murderers, when it is something else entirely:
[Judge Jed] Rakoff said judges should become more involved in the plea-deal process so prosecutors armed with harsh mandatory minimum sentences are less able to bully defendants. He said too many innocent people go to prison because the process is broken.
http://www.nydailynews.com/news/crime/judge-plea-deal-process-fixed-article-1.1806358
"The current process is totally different from what the founding fathers had in mind," because nearly all cases end in pleas, he [Judge Rakoff] said.
I don't accept your "it's always been this way!" mentality, SampleGas.
Adding more words doesn't make you less disingenuous, Sample.
Name one other “Bill of Rights” enumerated right which felons lose for life.
Speech? Religion? Press? No quartering? No warrantless searches? No self-incrimination? Speedy trial by impartial jury? Jury review of facts? No excessive/cruel/unusual punishments? Sure, lose ‘em while incarcerated or as other terms of punishment, but once time served get ‘em back.
For the second time, I never asserted that. I specifically mentioned parole, and then pointed out that mention again, while recognizing that there are other forms of government supervision of a violator's affairs.
At some point, I mentioned that there is some point in a convict's life where he is no longer under government supervision. If you agree that there is such a point in time (setting aside the felon in possession), then our argument lies in what restrictions the government can constitutionally impose on what I will call, for shorthand, an ex-felon.
-- The constitution does not require that punishment be incarceration, nor does it directly limit the duration of punishment for felonies; so how do you get to where you are at logically? --
I never argued that that the constitution does not say that punishment must be incarceration, obviously there are fines, and as far as I know, courts have always been free to fashion parole as a remedy. And for offenses where the penalty is life in prison, or death, the issue of restoration of rights doesn't come up. The question, and our difference, is limited to the class of cases where the term of government supervision (be it incarceration, parole, supervised release, ordered into the asylum, or something else) is shorter than a person's lifetime.
I'll get back to your ultimate question shortly.
-- I can find nothing that limits a state from passing a life sentence that limits a person from working with children, driving heavy equipment, shooting fireworks, or possessing a firearm. --
Only one of those four activities appears as an enumerated right in the constitution, and the enumerated one is a right that enables the free man to defend his life should the need arise.
As far as I know, the driving one, be it heavy equipment of personal transportation, is unregulated and freely available on private property. One you did not bring up, but is universal in incarceration, parole and supervised release, is a prohibition on the consumption of alcohol. That is likewise not an enumerated right. By your rationale, the government could forbid the consumption of alcohol for a person's lifetime - nothing in the constitution prohibits this.
-- The argument is that a life-long restriction of rights is in itself unconstitutional, and there is simply no basis to support that. --
The contention is that a person who is not under government supervision has a constitutional right to keep and bear arms. The basis for the contention is the constitution itself, and what it was understood to allow the government to do, and what individual and public rights were protected from the government at the time it was ratified.
So, how do I "get there" logically? Setting aside the history and understanding of the constitution at the time it was ratified, in order for a law, including its punishment, to be valid (in a moral sense), there needs to be a rational relationship between the crime and the punishment. Repeat drunk driving? Lose the privilege of operating a vehicle on the public highways. Note that this is not an enumerated right. Armed robbery? Incarceration. Repeat armed robbery? Longer incarceration. Embezzlement? Can't be bonded.
The idea that adding a felon in possession law somehow reduces the probability of that repeat armed robbery is naive at best. The punishment function of felon in possession laws is increased time of incarceration for a repeat offender. That same effect can be had by increasing the time of incarceration for repeat offenders of the underlying crime.
I find it immoral to deprive a person of means to self defense, unless that person is given reasonable protection by those who are restraining him. By "person" here, I don't mean to include those who are under government supervision. I am referring to individuals who have freedom from government supervision.
The downside risk to the public is not improved by (ex-)felon in possession laws. Ex-felons possess firearms. Most of them do not go on to commit violence with the firearm. There will always be some people who need to be killed, and laws restricting everybody else just puts the greater number of people at greater risk.
I notice you never addressed my question relating to other enumerated rights. The same sort of "rational basis" analysis can be applied to those as well. What is the claimed function of the penalty? What are the downside risks that attach to that penalty and to forbearing from attaching that penalty? What freedoms (from government interference) do we hold near and dear?
The felon in possession law is at best a feelgood provision, but I think it is really a back door to disarming at least some significant fraction of the public.
And that's why the courts will not do anything to discredit felon in possession laws. The enumerated right to keep and bear arms is a hollow shell. The right exists only to the extent the government allows. And the simple justification is "we have to disarm some of you for your own protection." The size of "some of you" will never be decreased. The government does not want to be afraid of the people, it wants and demands that the people be afraid of it.
Life.
If you've got another definition, I'm listening.
I don't use terms like that. That was your term, not mine.
Ya see I personally no longer trust those running the courts/government and personally would never define ALL those caught up in their convoluted, controlling, corrupt, punitive machine to be less of a citizen than me. (And no, SimpleMan, I am not referring to murderers, rapist and or violent people).
Like others here who've tried to penetrate your brain box, not all people caught up in this government machine need to be controlled and or punished the rest of their lives after having already been caged up, and or made to jump through hoops, bankrupted, had their stuff seized and on and on...
Even the government's unionized prison system is a First Class corrupt industry. Of course, all those "First class citizens" get a pass, plus all those extra biggov unionized goodies.
Retribution can be as swift. Like the Inquisition, this system of duress too frequently results in innocent individuals entering guilty pleas they never would have if the constitution was really put into play.
You get that back too (stuck in a small box for a prolonged period amounts to suspension thereof), short of capital punishment - an obvious special case, which has been upheld by darned near every society & morality ever. You even get that one back unless deemed too dangerous to return to society, too worthless to warrant the cost of incarceration, crime worthy of such punishment and still does not violate the 8th Amendment - well, yeah. Take that one up with your expected deity.
The U.S. Constitution Online - USConstitution.net
What is "guaranteed" is procedural protection; and a prohibition on cruel and unusual punishment, whatever the heck that covers.
This is an area of the law that I've never reviewed or studied before, so pardon my halting and scattered "presentation."
My gut reaction mirrored yours, that cruel and unusual is to be taken literally, things like pulling out fingernails, public humiliation, drawing and quartering, etc. But cruel and unusal also prohibits the penalty (even a conventional one) not fitting the crime.
Furman v. Georgia, 408 U.S. 238 (1972)
The test, then, will ordinarily be a cumulative one: If a punishment is unusually severe, if there is a strong probability that it is inflicted arbitrarily, if it is substantially rejected by contemporary society, and if there is no reason to believe that it serves any penal purpose more effectively than some less severe punishment, then the continued infliction of that punishment violates the command of the Clause that the State may not inflict inhuman and uncivilized punishments upon those convicted of crimes.A cited case (Robinson v. California, 370 U.S. 660 (1962)) holds that imprisonment for narcotics addiction is cruel and unusual.
Includes the interplay between state and federal sentencing and restoration of rights. My thought is that somewhere, buried in the minutia, the courts might talk about the criteria that justify restoration of rights. I would think these criteria would be similar to the reasons for not taking them away in the first place.
Another line of thought that becomes apparent on review of the chart is that states have been stripped of the power to restore the right to keep and bear arms, as the state sees fit. Tenth amendment, FWIW, but no federal court respects the 10th as anything more than a truism.
Finally, link to the website that hosts the chart: National Association of Criminal Defense Lawyers - Restoration of Rights Project
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