The First (?) Post-Heller Case Holding a Gun Control Law Unconstitutional:

[jmhorrible]

Here's the start of the post, follow the link for the full article.

http://volokh.com/posts/1231712651.shtml



That's U.S. v. Arzberger. The gun control law is the part of 18 U.S.C. § 3142(c)(1)(B) that requires that when someone is charged with possessing child pornography (among other crimes) and is freed on bail, he be ordered not to possess any firearm. Here's the discussion by Magistrate Judge James C. Francis IV (of the Southern District of New York) (some paragraph breaks added):

A year ago, I might well have taken for granted the authority of Congress to require that a person charged with a crime be prohibited from possessing a firearm as a condition of pretrial release.... [But, given D.C. v. Heller, t]o the extent ... that the Second Amendment creates an individual right to possess a firearm unrelated to any military purpose, it also establishes a protectible liberty interest [for Due Process Clause purposes]. And, although the Supreme Court has indicated that this privilege may be withdrawn from some groups of persons such as convicted felons, there is no basis for categorically depriving persons who are merely accused of certain crimes of the right to legal possession of a firearm.

 

[Bassturd]

Here's the start of the post, follow the link for the full article.

http://volokh.com/posts/1231712651.shtml



That's U.S. v. Arzberger. The gun control law is the part of 18 U.S.C. § 3142(c)(1)(B) that requires that when someone is charged with possessing child pornography (among other crimes) and is freed on bail, he be ordered not to possess any firearm.

This is not the poster-boy we were looking for...

 

[clinotus]

This is not the poster-boy we were looking for...

I agree, but the litmus test here will be beneficial considering the myriad of other disqualifications that may be utilized for the denial of other rights.

 

[lord1234]

ugh...kiddie porn...i'm ok with him keeping his gun...as long as we can cut his dick off.

 

[Rob Boudrie]

There are plenty of cases in MA that hinge on the concept that firearms ownership is not a right, therefore, due process is not required when revoking an LTC. Revocations for being "accused" or "suspected" (without so much as charges), or the infamous Godfrey decision ("exercising your right to remain silent is a valid reason to revoke an LTC") all present interesting possible Heller based cases.

 

[mark056]

ugh...kiddie porn...i'm ok with him keeping his gun...as long as we can cut his dick off.

He hasn't been convicted of anything yet and as such is innocent until proven guilty. The laws that pertain to civil rights apply to all and the true test is when someone who is odious or holds unpopular beliefs are afforded the same rights as anyone else. That's the truest test of how well we can exercise our civil liberties.

Increasingly there is a perception that arrest equals guilt without due process.

Mark L.

 

[seanc]

It would be nice to eliminate "suitability" from the Mass Lexicon. And replace that with RIGHT.

 

[lord1234]

He hasn't been convicted of anything yet and as such is innocent until proven guilty. The laws that pertain to civil rights apply to all and the true test is when someone who is odious or holds unpopular beliefs are afforded the same rights as anyone else. That's the truest test of how well we can exercise our civil liberties.

Increasingly there is a perception that arrest equals guilt without due process.

Mark L.

you make a good point...but if convicted, my statement stands.

 

[clinotus]

...

Increasingly there is a perception that arrest equals guilt without due process.

We moved from the 'innocent until proved guilty' mindset to the 'accusation of a wrong means you must prove yourself innocent of the charges levied against you without due recourse or process'.

A lot more words on the latter and a lot more trouble unfortunately.

 

[terraformer]

Revocations for being "accused" or "suspected" (without so much as charges), or the infamous Godfrey decision ("exercising your right to remain silent is a valid reason to revoke an LTC") all present interesting possible Heller based cases.

Godfrey seems like the one that would be the most interesting and likely to be successful out of all of them.

 

[Bassturd]

He hasn't been convicted of anything yet and as such is innocent until proven guilty. The laws that pertain to civil rights apply to all and the true test is when someone who is odious or holds unpopular beliefs are afforded the same rights as anyone else. That's the truest test of how well we can exercise our civil liberties.

Increasingly there is a perception that arrest equals guilt without due process.

Mark L.

I have an LEO friend that has stated to me on multiple occasions that every person he has every arrested was unquestionably guilty.

I am sure most, if not all LEOs feel this way. I don't choose to poke the stick at that tiger directly, but I can say that I have learned that his perception versus how he believes the court system handles those cases creates an undertone of discord between the two agencies.
How the media and the people that pay attention to it portray people is another issue entirely, but more often than not reports are made with indictments firmly embedded therein.

 

[seanc]

I have an LEO friend that has stated to me on multiple occasions that every person he has every arrested was unquestionably guilty.

There are probably 20 million laws on the books. Many are probably diametrically opposed to each other. As civilians, we are in general un knowledgable about ALL of the laws out there. Make enough laws so that everyone is a criminal..

It is just a matter of the police finding out which crimes you are guilty of at any given time... So, I suppose he is kind of right...

 

[OnTheRoad]

I have an LEO friend that has stated to me on multiple occasions that every person he has every arrested was unquestionably guilty.

Say you were at the movies and you come out to find your car window broken and some guy hurrying across the lot with what looks like your car radio in his hands. You wave over a passing cop and point to the treeline that the guy disappeared into. The cop finds the guy and brings him back to you, you identify him and the guy eventually admits everything and tells the cop where he stashed your radio.

Now a few months later you go to the court for the trial. All seems to be a slam dunk except...the guy who stole your radio says the cop never read him his rights before he told where the radio was stashed. The judge believes him, and now the whole confession and telling where the radio was is not admissible. Whether he actually did or id not read the guy his rights is immaterial; the jury never hears about the confession and the guy is found not guilty.

You know the guy stole your radio. The cop knows the guy stole your radio. The guy knows he stole your radio. The judge knows the guy stole your radio. KNOWING something is one thing. PROVING it is different. "Not guilty" is not necessarily the same as "innocent".

 

[Blitz1]

"Not guilty" is not necessarily the same as "innocent".

+1

 

[jmhorrible]

Guilt or Innocence has nothing to do with the issue. The ruling has to do with the automatic revocation of rights of the accused without cause.

If some accused pedofile gets to keep his rights before his day in court, all the better for the rest of us.

 

[Kalahari]

I'm not sure I see an issue with the possession of "kiddie-porn." Its filthy and disgusting as all hell, but so is modern liberalism.

Now, producing the material may be a different matter.

 

[clinotus]

I'm not sure I see an issue with the possession of "kiddie-porn." Its filthy and disgusting as all hell, but so is modern liberalism.

Now, producing the material may be a different matter.

I'm going to go out on a limb here and say that there is a whole hell of a lot wrong with kiddie porn.

 

[Bob P]

I'm going to go out on a limb here and say that there is a whole hell of a lot wrong with kiddie porn.

.

 

[Tiktock]

Im all for "Innocent until proven guilty" but in order to be arrested for posession of child pornography, dont you basically have to be caught with child pornography? Some crimes are a lot more grey area then when they check your hard drive and its full of kids having sex.

I wish he had done something else. I find it hard to even begin to support anyone who I even think might be a pedophile. That being said, i have no problem with him owning a gun during his trial so long as if convicted, he uses it on himself soon after.


*edit* I just read the case against this guy. Unless its a massive gov't conspiracy out to get him, it sounds like he's a certifiable scumbag #1. Ordered, signed for, received and made a confessing statment about buying tapes of 10-12 year olds having sex. I dont care what is "right" but the only gun this POS needs is in his mouth.

 

[appraiser]

I am by no means advocating the sexual exploitation of minors, but this is not a worst case scenario by any means, (and remember innocent until proven guilty beyond a reasonable doubt by a jury of ones peers) but if one is accused of one of the most heinous crimes you could commit in our society, and the Judge who is setting bail conditions says the accused has second amendment rights and I am not going to revoke them without a conviction, then I'm good with that decision.

How many men have had their rights trampled on by being ACCUSED of "domestic violence" ? There is the next law I am waiting to see ruled unconstitutional by the US Supreme Court. Not that it will make any difference in MA because of discretionary licensing, but I disagree with an automatic disqualification with out a conviction in a court of law of a criminal charge of a felony.

 

[Tiktock]

I am by no means advocating the sexual exploitation of minors, but this is not a worst case scenario by any means, (and remember innocent until proven guilty beyond a reasonable doubt by a jury of ones peers) but if one is accused of one of the most heinous crimes you could commit in our society, and the Judge who is setting bail conditions says the accused has second amendment rights and I am not going to revoke them without a conviction, then I'm good with that decision.

How many men have had their rights trampled on by being ACCUSED of "domestic violence" ? There is the next law I am waiting to see ruled unconstitutional by the US Supreme Court. Not that it will make any difference in MA because of discretionary licensing, but I disagree with an automatic disqualification with out a conviction in a court of law of a criminal charge of a felony.

My logical side agrees with you but my human side knows that theres a 99% chance this guy gets off on little girls and my human side is winning this argument right now. If he gets to keep his guns at home while he sits in jail awaiting trial, I am fine with that, though...

Can you IMAGINE the fallout if a judge cited 2A to let an accused pedophile keep them until found guilty and he used one to rape some kid? (and normally im the last one to yell "its for the kids!")

 

[seanc]

How about this..
He gets his ability to own a firearm back, and we can all wish for him to have a tragic fatal accident on the return trip from the court house...

Irony would dictate, being run over by a school bus...

 

[n1zfg]

Can you IMAGINE the fallout if a judge cited 2A to let an accused pedophile keep them until found guilty and he used one to rape some kid? (and normally im the last one to yell "its for the kids!")

That is what makes this case one of the best for the liberals.
It is a win-win for them.
If the dirtbag gets to keep his guns, the win the P.R. contest.
If the dirtbag gets to turn in his guns, they win a weakened 2A.

I would rather have seen a condition of his bail that he put his guns go into what is, in effect, receivership. Get them placed into the custody of an accountable 3rd party of his choice (like an attorney or FFL) as part of securing his release from custody. That way he doesn't have to comply. He can always sit in jail with his guns back at his home.

 

[appraiser]

and then we have a still innocent person, sitting defenseless in his home, his 2A rights revoked without being proven guilty of anything, and some vigilante mob comes to get him.

This is what the Heller decision was all about. Heller doesn't give you the right to carry a weapon, it affirms your right to own a firearm in your home for protection.

When he is convicted, and the appeals process has run it's course, and the conviction stands, put him against the wall and let me use him for target practice.
Until then he is innocent, and if the Judge thought he was a risk to himself or others he would have been denied bail and we would not be having this discussion.

 

[Kalahari]

I'm going to go out on a limb here and say that there is a whole hell of a lot wrong with kiddie porn.

Again, making of it, yes. And I'm in complete agreement that it is filthy, disgusting, and all those other bad things. But possession of it is ultimately a "victimless crime." The creation of it, through the coercion of underage minors, is absolutely wrong and should not be tolerated.

 

[jobowker]

He hasn't been convicted of anything yet and as such is innocent until proven guilty. The laws that pertain to civil rights apply to all and the true test is when someone who is odious or holds unpopular beliefs are afforded the same rights as anyone else. That's the truest test of how well we can exercise our civil liberties.

Increasingly there is a perception that arrest equals guilt without due process.

Mark L.

Mark -
You make an important distinction that I think many of us, including myself, sometimes forget. This is dangerous for many reasons that go way beyond the scope of this thread.

Many of us have observed couples going through a bitter divorce, where one person makes wild accusations for the sole purpose of hurting the other person. It wouldn't be a stretch for a scorned person to wrongly accuse their spouse of hurting their own child. Also, many people on a jury assume the defendant is guilty, otherwise the cops wouldn't have arrested them.

 

[clinotus]

Again, making of it, yes. And I'm in complete agreement that it is filthy, disgusting, and all those other bad things. But possession of it is ultimately a "victimless crime." The creation of it, through the coercion of underage minors, is absolutely wrong and should not be tolerated.

I'm pretty sure that the victim is the kid captured on the images, and soliciting and purchasing such are supporting the industry of child exploitation far past the moral relativism involved in consensual pornography with people of age.

 

[MetalgodZ]

I'm pretty sure that the victim is the kid captured on the images, and soliciting and purchasing such are supporting the industry of child exploitation far past the moral relativism involved in consensual pornography with people of age.

Not that I think this guy is AT ALL a good poster boy for Heller...

How do you feel about this?

I don't want to assert it as fact w/o providing you a link to the applicable statute, but I'm reasonably sure that child pornography has been defined as any image advertised - even blatantly falsely - to portray a minor in a sex act.

 

[appraiser]

a link to doggy day care?

 

[terraformer]

Not that I think this guy is AT ALL a good poster boy for Heller...

How do you feel about this?

I don't want to assert it as fact w/o providing you a link to the applicable statute, but I'm reasonably sure that child pornography has been defined as any image advertised - even blatantly falsely - to portray a minor in a sex act.

Not sure what doggie day care has to do with this but yes, simulated (aka virtual or CGI generated) images have been defined as child porn and the ACLU is going after that one big time. A guy in Australia was put away for having a simpsons spoof where lisa was getting some from another character and he will be considered a perv the rest of his life.