3rd Circuit: Binderup v. Attorney General, Can Felons get their 2A Back?

Discussion in 'In the News' started by tmoore912, Sep 7, 2016.

  1. tmoore912

    tmoore912 Just a Man

    6,031
    160
    63
    Can some people who have finished their felony sentences recover their Second Amendment rights?

    The Volokh Conspiracy Opinion: https://www.washingtonpost.com/news...utm_source=twitterfeed&utm_term=.84ffa6e04a9c

    This was a Alan Gura case won this morning.

     
  2. phaed

    phaed Active Member

    9,360
    2
    38
    how can a right be taken away in the first place?
     

  3. bdee

    bdee انا باتمان

    14th Amendment:
    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.
     
  4. Clark

    Clark Well-Known Member

    1,026
    88
    48
    Time to go to "when punishment's over, it's over." If they're too dangerous to have all their rights, then they're too dangerous to be let out in public. Goes for the sex offender registry too, especially since "urinating in public" is somehow a sex crime.
     
  5. Mrs_Esterhouse

    Mrs_Esterhouse Swollen Member

    11,835
    507
    113
    What Clark said.
     
  6. UtiPossidetis

    UtiPossidetis American

    3,207
    264
    83
    The idea as presented that "when punishment is over its over" appears to presume that the only possible punishment is incarceration. We have other forms of punishment such as parole, fine, etc. So, loss of rights as a result of being convicted and the continued loss of certain rights after release from inside prison walls is ongoing punishment. As for sex offenders, two issues seem to have been intermingled here - the legitimacy of certain offenses being listed as a "sex crime" (e.g., public urination) and restricting those convicted of sex crimes from certain activities once released into the public. I would agree that public urination, in and of itself, should not constitute a "sex offense" but would disagree regarding ongoing monitoring of genuine sex offenders once released.
     
  7. DKW

    DKW Active Member

    444
    49
    28
    I have heard people state “If they're too dangerous to have all their rights, then they're too dangerous to be let out in public†over and over again and I am sick of it. In a theoretical utopia you describe this might be possible. However, we don’t live in your ideal utopia (never have and never will).

    Getting back to reality, where dangerous people (felons) unfortunately are let out of prison when they have served their sentence, what is your solution on returning firearm rights (and maybe other rights) to these individuals? I myself do not think they need to be returned.

    Now, if we want to argue not all felonies are equal and only violent felonies (murder, assault, armed robbery, rape, etc) should have their firearm rights permanently removed compared to other non-violent felonies, fine. Personally, I think a delineation can be made between these type of crimes for the purpose of owning a firearm after your sentence has been completed.
     
  8. moe mensale

    moe mensale Well-Known Member

    12,802
    1,782
    113
    Why are some rights more equal than other rights? Do released felons lose their right to free speech, their right to a speedy trial, their right to practice their religion, etc?

    It seems that lawmakers are fine with disenfranchisement for certain members of society when in fact a good portion of them are no better than those they wish to punish.

    The 14th Amendment's equal protection clause isn't really equally imposed.
     
  9. CoffeeMate

    CoffeeMate Junior Butt Warmer

    46,427
    9
    0
    I still have to dive into the ruling itself.

    I object to the notion that a plenipotentiary "results-based" judicial orientation is perfectly fine and proper. It is not. It is an abandonment of necessary judicial rigor. It is an abandonment of the point and purpose of having an "independent" (equal and separate) judiciary.

    A "results-based" orientation is within the realm of the legislature, not the judiciary.
     
    Last edited: Sep 8, 2016
  10. gunsmoker

    gunsmoker Lawyer and Gun Activist

    27,601
    707
    113
    I think a short period of probation (and/ or parole) is useful and good policy.

    These conditions of restricted liberty and greater State supervision of a convict should follow a prison term.

    Let them do a few years of living on the outside with special supervision and reduced rights before the person regains all of the rights of a free citizen in society, and can go "off the grid" with full privacy-- the government must stay out of that person's business.
     
  11. DKW

    DKW Active Member

    444
    49
    28
    It could be argued that those three “rights†mentioned already have some sorts of restrictions on them now.

    -Free speech: What about libel laws? That is a restriction in the purest sense.
    -Speedy trial: Some cases don’t go before a jury for well over a year. I would not consider that speedy.
    -Freedom of religion: Do we really need to go there on how many ways this can be restricted.

    My argument is there is no absolutes in life (including the constitution and bill of rights) and in reality life is full of grey areas that are neither black nor white. We don’t live in some people’s utopian world view where everything is black or white. God help is if we ever get there because nobody lives a perfect life.

    Because we don’t live in this utopian dream world everybody wishes existed and instead live in the real world where we have violent felons who have completed their sentences out on the streets, I for one don’t want them to be able to own a gun legally (and yes, I know they can steal a gun or buy one from some unscrupulous person).
     
  12. gunsmoker

    gunsmoker Lawyer and Gun Activist

    27,601
    707
    113
    DKW, you're missing the point.
    The issue is why some rights are MORE RESTICTED / INFRINGED for convicted felons than normal people.

    AND why all rights are not equally reduced/ withheld for felons.


    Why do "we" free citizens have a very strong (although not unlimited) right to assemble and gather with whom we want, but felons on parole or probation can't associate with other parolees or probationers?

    Why do you have "some" of your gun rights, but a guy convicted of felony bad checks 30 years ago has NO such right? (Assuming he never petitioned for restoration of gun rights)
     
    Last edited: Sep 8, 2016
  13. DKW

    DKW Active Member

    444
    49
    28
    Because it is part of the current Federal law that you lose your rights to own and possess firearms and is therefore implied as part of the punishment you receive (along with prison, fines, community service).
    What if a Judge in his sentencing stated this implicitly that as part of the punishment, you lost this right? Would that be any different than what we have now in which it is inferred?

    I agree, we should separate violent felonies from non-violent felonies in the law but until we do, if you get convicted of a felony, you have to live with the overall consequences (in which this is a well know consequence of being a convicted felon).
     
  14. CoffeeMate

    CoffeeMate Junior Butt Warmer

    46,427
    9
    0
    Yeah, I still don't see the point.

    All it does is provide a "leash", a way to keep someone "in the system" for as long as possible and despite the realities of life. It doesn't prevent anything. It doesn't serve society. And it's counter to the very American virtue of being able to outlive one's mistakes.
     
  15. CoffeeMate

    CoffeeMate Junior Butt Warmer

    46,427
    9
    0
    In that case, it isn't a right. It is a privilege. Further, it is a privilege extended only on good behavior and permanent probation.

    We all know how long Federal law has been prohibited from infringing, let alone decreeing permanent loss of, this particularly enumerated and protected right.
     
  16. CoffeeMate

    CoffeeMate Junior Butt Warmer

    46,427
    9
    0
    I wonder how many people realize that some of the Founders believed a Bill of Rights wasn't necessary. The reasoning was that no sane society would use its own representative gov't against itself.
     
  17. gunsmoker

    gunsmoker Lawyer and Gun Activist

    27,601
    707
    113

    Right, loss of gun ownership rights for life IS well known, and I think it's punitive (implied as part of the penalty society imposes on you), although technically judges and legal scholars say that this is not intended to be "punishment" but rather a public safety measure, when the gun ban lasts beyond a person's sentence and the felon is no longer on parole or probation.

    I think that people should be on probation following incarceration, and during the time they are on probation they should have few or no "rights" regarding deadly weapons. BUT... after their term of probation is over, I think they should be 100% free. Just as free as anybody else.

    If that means that the ordinary sentence for a burglar might be 20 years, with only 2 to actually serve in a jail or prison, but 18 or 19 more on probation, fine. Let's do it and make such sentences common. And yes, 19 years from now I'm willing to have that dude move next door to me. I'll take that chance to honor the principle that crimes should only carry a penalty of limited duration, and when it's over, it's OVER.
     
  18. CoffeeMate

    CoffeeMate Junior Butt Warmer

    46,427
    9
    0
    Because the State (not Federal) gov't which imposed the disqualifying sentence says the sentence has been completed and the matter disposed of.

    You see, here again we "administratively" bypass both spirit and letter. If a person "broke Federal law" by "being convicted" of a State offense, then how does the Federal gov't get to impose "additional (lifetime) penalties" without conviction of violating Federal statute?
     
  19. CoffeeMate

    CoffeeMate Junior Butt Warmer

    46,427
    9
    0
    What's next? Pay too many municipal parking tickets in too short a time period and you become a "dangerous habitual offender" under Federal law whose 4A rights are forever forfeited?


    Yeah, strawman... Or maybe not. How is the operating principle different?

    Deprivations of liberty -- let alone rights -- "administratively stripped" for life without due process under Federal statute.
     
    Last edited: Sep 8, 2016
  20. CoffeeMate

    CoffeeMate Junior Butt Warmer

    46,427
    9
    0
    Page 8... How does one get off the "No-Fly" list? Can the US/AG do that at his/her discretion too?

    Where in Federal statute is this "No-Fly" list anyway and what was the enabling legislation?