National Socialist Movement member Samuel Johnson, an organizer of illegal immigration rally in 2010 at the Veteran’s Memorial, shouts at pro immigration protesters. (Photo: Austin Daily Herald)
Guns dot com
A white supremacist whose case has made its way to the U.S. Supreme Court is at the center of the debate over gun control, pitting public safety against Fourth Amendment protections.
Several groups on both sides of the fight have recently weighed in on the case of Samuel Johnson, deemed a repeat violent offender under the Armed Career Criminal Act by a Minnesota court in 2012 and sentenced to 15 years in prison after he was caught with several firearms, including a 12-gauge shotgun without a serial number, according to court documents.
For Gun Owners of America — who submitted an amicus statement to the court in July in favor of Johnson — this is a Fourth Amendment issue.
“It gives the police an overly broad tool that they shouldn’t have,” Larry Pratt, GOA executive director, told Guns.com. “So, if we win, good — we protect the Bill of Rights.”
Pratt said that although the GOA is not endorsing Johnson as an individual (and a repeat offender connected to a racist hate group accused of plotting a terrorist attack on a Mexican consulate), the neo-Nazi might not be guilty of possession.
But the Brady Center to Prevent Gun Violence — which filed its amicus brief last week — thinks this is a clear-cut case of public safety.
“I would hope that everyone on all sides of the gun debate agree that felons in possession of illegal firearms should be severely punished,” Jonathan Lowy, director of Brady’s Legal Action Project, told Guns.com. “Gun Owners of American has a misunderstanding of what this case is about. They refer to this felon’s illegal possession of an illegal firearm as quote ‘mere possession’ of a firearm.”
It is important to protect the natural rights of all people, distasteful or not.
ReplyDeleteYep. Ask Laci about the importance of defending and applying the law equally to despicable people.
DeleteUnfortunately, the constitution does not recognise "natural rights"
DeleteNatural rights are those not contingent upon the laws, customs, or beliefs of any particular culture or government, and therefore universal and inalienable (i.e., cannot be sold, transferred, or removed).
Legal rights (i.e.,those in the US and State Constitutions) are those bestowed onto a person by a given legal system.
I am glad that you support a right of felons to own firearms, but that is pure insanity.
Further explanation, US Constitution, Article VI says:
Delete"This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."
In other words, no matter what rights you may believe you have, legally you only have those which are granted by US or State Constitutions.
You can exercise your "natural rights" to your heart's content, but be advised that you will have serious legal problems should the rights you believe you have conflict with legal rights, or the law in general.
"It is important to protect the natural rights of all people, distasteful or not."
DeleteAnon is correct. Just because the person isn't "nice" doesn't mean that he doesn't get his rights.
"A major source of criticism are legal cases in which the ACLU represents an individual or organization that promotes offensive or unpopular viewpoints, such as the Ku Klux Klan, Neo-Nazis, Nation of Islam, North American Man/Boy Love Association, or Westboro Baptist Church. The ACLU responded to these criticisms by stating "It is easy to defend freedom of speech when the message is something many people find at least reasonable. But the defense of freedom of speech is most critical when the message is one most people find repulsive."
http://en.wikipedia.org/wiki/American_Civil_Liberties_Union#Positions
MotherJones does a much better job at outlining the issues,
"In the Johnson case, the justices must decide whether simply illegally possessing a short-barreled shotgun constitutes a "violent" crime that could trigger the lengthy mandatory minimum sentence for a career felon. The federal law is vague on this front. The ACCA specifically lists some violent felonies that would cause the mandatory sentence to kick in: burglary, arson, extortion, and the use of explosives. But then it adds that the extra penalty can also be imposed if one of the three or more previous felonies involved "conduct that presents a serious potential risk of physical injury to another" and which are similar to those specific crimes laid out in the law.
It's that last clause that's created problems both for defendants and the courts. The lower courts have been all over the map in defining what constitutes the type of "violent" felony that would justify the extended sentence. Judges have deemed everything from purse-snatching, burglarizing an unoccupied commercial building, drunk driving, and fleeing the police in a vehicle as qualifying, not because theses acts are violent but because they could be. (The Supreme Court eventually disqualified the use of DUI but affirmed that fleeing the police in a car is a violent crime that could trigger extra years in prison."
"The courts have been especially inconsistent on whether Johnson's crime, possession of a sawed-off shotgun, is worthy of a sentence enhancement. The government, the First Circuit, and the Eighth Circuit Court of Appeals, which ruled against Johnson, have said that illegal possession of a sawed-off shotgun meets the serious-risk standard Congress created. The Brady Center to Prevent Gun Violence also filed an amicus brief in the Johnson case supporting that position, citing research showing that the mere presence of an illegal gun increases the potential for violence.
Yet four other federal circuit courts have looked at the same question and come to the opposite conclusion, finding that simply possessing a short-barreled gun is a lot different from using it. Johnson, whose prior gun possession conviction came after he was caught riding in the front passenger seat of a car with a gun in a bag on the backseat, contends that his crime hardly rises to the level of the "purposeful, violent, and aggressive" crime the Supreme Court has said can trigger the mandatory minimum sentence."
http://www.motherjones.com/politics/2014/09/gun-owners-of-america-samuel-johnson-neo-nazi
And even the presiding judge has said that the offense doesn't rate the minimum required by law,
“For whatever it’s worth, and it’s probably worth nothing, I think 180 months is too heavy of a sentence in this case. But I take an oath to follow the law as I see it and I’ve made my decision in that regard.”
Kyle said a sentence of half or two-thirds of that would suffice, but he was beholden to minimum sentencing guidelines set forth by the ACCA."
It seems odd that some people are so concerned about this poor persecuted gun owner getting slammed with a lengthy sentence for being a repeat offender when we have marijuana offenders doing life for having three strikes you're out.
DeleteYes, and we've discussed those marijuana offenders before, and our opposition to that overcriminalization and many other issues. Nothing odd except in your mind that ignores everything else we say and turns us into single issue straw men.
Delete"It seems odd that some people are so concerned about this poor persecuted gun owner getting slammed with a lengthy sentence for being a repeat offender when we have marijuana offenders doing life for having three strikes you're out."
DeleteThat is exactly what this case is about Mike. Even if he wins his case, he's still looking at a lengthy vacation in prison. In fact, he pled guilty to the possession charge.
"But for the ACCA, Johnson's sentence would have been much shorter—between 7 and 11 years."
As the article says, the courts have been inconsistent in regards to this portion of the law. So, its being taken up by SCOTUS to take care of that issue. Look at the marijuana possession laws. Possess one ounce or less, simple possession. Get caught with 1.1 ounces, you're a dealer. To be honest, I have no idea whether an ounce is a good benchmark or not.
Part of the reason that I do not usually respond to comments is that people like ssgmarkcr miss the point totally.
DeleteUnder US law, one only has LEGAL rights, not natural ones.
Why is that hard for people to comprehend?
"Under US law, one only has LEGAL rights, not natural ones."
DeleteLaci, I never mentioned natural rights. In this case there seems to be a reasonable challenge given the inconsistency in the law as noted in the article I cited.
9th amendment to the US Constitution. Sorry, you're wrong.
DeleteSee responses below.
DeleteEven Madison admitted it was a catch all to get people to ratify the Constitution.
James Madison, House of Representatives, 8 June 1789, Annals 1:439:
"It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution [the Ninth Amendment]."
So, you might actually want to learn about the US Constitution before making dumb statments,
Of course that's your contention. You're a first-year law student; you just got finished reading some Marxian historian, Pete Garrison probably. You're gonna be convinced of that 'till next month when you get to James Lemon. Then you're going to be talking about how the economies of Virginia and Pennsylvania were entrepreneurial and capitalist way back in 1740. That's gonna last until next year; you're gonna be in here regurgitating Gordon Wood, talkin' about, you know, the pre-revolutionary utopia and the capital-forming effects of military mobilization.
DeleteThe constitution is not a suicide pact. It has been established through analysis of data that those violent criminals who have had their gun rights restored BY THE COURTS, through the existing procedure for that to occur, are SEVEN TIMES MORE LIKELY TO RE-OFFEND BY VIOLENT ACTS WITH A FIREARM after the restoration of those rights.
DeleteTherefore the government has a reasonable basis to protect the right to life, liberty and the pursuit of happiness of the rest of us by denying those who are violent individuals those rights to firearms (or other weapons).
http://www.nytimes.com/2011/11/14/us/felons-finding-it-easy-to-regain-gun-rights.html?pagewanted%3Dall
" Under federal law, people with felony convictions forfeit their right to bear arms. Yet every year, thousands of felons across the country have those rights reinstated, often with little or no review. In several states, they include people convicted of violent crimes, including first-degree murder and manslaughter, an examination by The New York Times has found."
That federal law has withstood constitutional challenge. The 2A is not without regulation or restriction (See Heller, for example).
from the Times article:
Since 1995, more than 3,300 felons and people convicted of domestic violence misdemeanors have regained their gun rights in the state — 430 in 2010 alone — according to the analysis of data provided by the state police and the court system. Of that number, more than 400 — about 13 percent — have subsequently committed new crimes, the analysis found. More than 200 committed felonies, including murder, assault in the first and second degree, child rape and drive-by shooting.
Even some felons who have regained their firearms rights say the process needs to be more rigorous.
“It’s kind of spooky, isn’t it?” said Beau Krueger, who has two assaults on his record and got his gun rights back last year in Minnesota after only a brief hearing, in which local prosecutors did not even participate. “We could have all kinds of crazy hoodlums out here with guns that shouldn’t have guns.”
One study, published in the American Journal of Public Health in 1999, found that denying handgun purchases to felons cut their risk of committing new gun or violent crimes by 20 to 30 percent. A year earlier, a study in the Journal of the American Medical Association found that handgun purchasers with at least one prior misdemeanor — not even a felony — were more than seven times as likely as those with no criminal history to be charged with new offenses over a 15-year period.
Fuck felons gun rights; they do the crime, they lose their rights permanently.
It makes a lot more sense than denying them their voting rights after they finish their sentences -- voting does no harm to anyone, and it makes former felons LESS likely by70% to reoffend, unlike guns which are dangerous and where there is MORE frequency of violence and crime.
Nice non sequitur. Why are you afraid of Martha Stewart owning guns?
ReplyDeleteI don't whom you're talking to, but I don't agree with white collar offenders losing their gun rights - in most cases. I don't think they should go to jail either.
DeleteSo you support felons' gun right? Nice.
DeleteNo, I don't support felon gun rights. I believe white collar criminals should not be treated like violent felons, not in the going to jail part nor in the losing rights part.
DeleteCeaseFireRI, I have NO problem with any felon losing their gun rights permanently.
DeleteI take MikeB's point to be that in the US, we have made a lot of formerly misdemeanor crimes felonies that were not previously felonies here -- or anywhere else. That relates especially to marijuana laws, but not only to those; it was a mistake we made in the Reagan era of law and order/get tough on crime that resulted in us having the highest rate of incarceration of our citizens (and non-citizens, for that matter) anywhere in the world.
Violence should be an important criteria in who gets locked up and who does not, where and for how long.
Sorry doggie, stand aside and let the big boys talk. Maybe go to law school and learn something.
ReplyDelete"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
I am so impressed that you know the law, but you failed to mention that you are quoting the ninth amendment.
DeleteUnfortunately, Natural rights are not recognised by the Constitution and this is a topic which YOU need to begin kindergarten in understanding.
If the Ninth Amendment grants natural rights, then there is a right for a woman to have an abortion. For example, the District Court that heard the case of Roe v. Wade ruled in favor of a "Ninth Amendment right to choose to have an abortion," although it stressed that the right was "not unqualified or unfettered." 314 F. Supp. 1217 at 1223 (1970).
Actually, Scholars, unlike anonymous assholes on the internet, have stated that "The Ninth Amendment obviously does not create federally enforceable rights." (Justice William O. Douglas)
Laurence Tribe: "It is a common error, but an error nonetheless, to talk of 'ninth amendment rights.' The ninth amendment is not a source of rights as such; it is simply a rule about how to read the Constitution."
In short, it would be one hell of a stretch to say that the Ninth Amendment gives you the right to do whatever the fuck you want.
So, get on with your potty training and come back when you have a basic concept of the US Constitution and the law.
Maybe we'll talk then.
And Anonymous, to further show you have no fucking idea what you just said, I will repeat what you quoted at me and explain it to you:
Delete"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
Since the "right to keep and bear arms" is mentioned in the Second Amendment, it is one of the "enumerated rights". The Second Amendment is what addresses that right.
Thus, one cannot claim another unmentioned right under the Ninth to address the right which is mentioned in the Second.
As I said, you've just started potty training in the law and are making a mess of the place.
Come back once you mastered maybe a kindergarten level of understanding.
Doggie has been to law school, admitted to the bars in PA and DC, and practised for over 25 years.
DeleteWhat are your qualifications for giving a legal opinion, anonymous?
Don't believe you. Was this an accredited law school?
DeleteWell, you are part of the reality challenged right and a moron who thinks he knows more than someone who had actually studied and worked with the topic,
DeleteJD, University of Maryland
LLM university of Exeter
I'd say that's pretty good law credentials, but you wouldn't know--would you?
Now, I've shown you mine--you show me yours...
DeleteBTW, don't plan on a response if you don't offer an actual, proper legal basis for your opinion.
DeleteHarvard Law School. Member of the bar in NY, RI, CT, MA. Faculty at Harvard since 1992.
DeleteMartha Stewart was not a violent felon.
DeleteBut if you commit a felony, then too bad about guns, you lose. I can find no instance where the SCOTUS recognizes felons owning guns covered under the 9th OR 10th amendment.
Annoy-nuhmuss, I can veify Laci's legal credentials; I've spoken personally with his law partner, used his law practice access to look at legal files through source such as Justicia, and I've seen his law licenses on the respective bar association sites where he is admitted to practice.
DeleteHe's right. You're wrong -- and clearly, YOU are not a lawyer, and do not know the law. You appear to be just one more silly gun nut who parrots what you read or hear elsewhere without knowing shit from shinola about whether it is factual or accurate or not.
Laci may be a lawyer, but he couldn't find his proverbial tuchus with his hands tied behind his back.
DeleteThe gun loons on this site have repeatedly supported lawbreaking in favor of their perceived gun rights.
ReplyDelete"Harvard Law School. Member of the bar in NY, RI, CT, MA. Faculty at Harvard since 1992."
ReplyDeleteAfter reading the anger and garbage from this anon., does anyone believe this?
I don't. He does not sound professorial, let alone Ivy League professorial.
Delete"Thus, one cannot claim another unmentioned right under the Ninth to address the right which is mentioned in the Second."
ReplyDeleteI take this as an admission that the second amendment protects an individual's right to bear arms.
"Here is an update on this case. It appears that mere possession isn't a violent crime,
ReplyDeleteThe U.S. Supreme Court on Friday threw out part of a tough federal criminal sentencing law for being overly broad in a ruling that backed a Minnesota white supremacist who challenged his sentence on a firearms crime.
The court ruled in favor of Samuel Johnson, who was given 15 years in prison for illegally possessing a firearm. The justices found on a 6-3 vote that a sentencing provision of the federal Armed Career Criminal Act is so expansive that it violated the U.S. Constitution's Fifth Amendment, which mandates due process under the law.
He will now be resentenced and will face a maximum sentence of 10 years. The ruling could also affect other inmates in similar situations.
http://news.yahoo.com/u-top-court-rules-white-supremacist-over-sentencing-143122030.html