9th Circuit Reverses Felon in Possession felony firearm conviction of CA man

[Strick8]

"Based on this record, we cannot say that Duarte's predicate offenses were, by Founding era standards, of a nature serious enough to justify permanently depriving him of his fundamental Second Amendment rights," Bea wrote. "The Second Amendment's plain text and historically understood meaning therefore presumptively guarantee his individual right to possess a firearm for self-defense."

9th Circuit reverses felony firearm conviction

www.dailyjournal.com

Interesting development, my friends.

 

[Xeon64]

If a person has paid their debt back to society, prison sentence, then I have no problem with a felon having a gun. Unless the provision is that part of their punishment for life is to lose certain rights. Not sure how felons with guns is worded.

 

[Strick8]

Just because something is the law doesn’t mean it’s Constitutional.

 

[machinedrummer]

If one commits arson and gets out of prison they are allowed to purchase gasoline and matches so why wouldn’t a violent offender be allowed to buy weapons after serving time? Same with DWI fatality..they can buy a car and drive after serving time…its not about the crime and time, its about denying the only right that seems to get denied in most cases after a conviction. Only the 2A is treated this way. Hurt somebody’s feelings and u get red flagged…lose your gun rights. Why not right to vote, speech, etc? I actually believe if one has paid debt to society and isn’t a violent (murder) offender then they should get their rights back.

 

[machinedrummer]

Let me amend that…if one murders an innocent person they should never see the light of freedom again along with pedos and rapist.

 

[Strick8]

If a man is jailed, for any reason, and is then released should he no longer be allowed to defend his own life or those of his family?

 

[gunnut]

If a man is jailed, for any reason, and is then released should he no longer be allowed to defend his own life or those of his family?

Just because you did your time doesn't mean you learned a lesson or will change your ways.
This really rings true with sexual offenders and murderers.

 

[Strick8]

Just because you did your time doesn't mean you learned a lesson or will change your ways.
This really rings true with sexual offenders and murderers.

That’s goes without saying. But in what scenario should a man be told he no longer has the “right” to defend himself and his family, especially in his own home?

Does the Constitution provide the “State” discretion when it says “shall not be infringed”?

And remember my prior statement, just because something is the law does not make it Constitutional. This is not a question of “right” vs “wrong” as each individual may believe, it’s “what does the Constitution say?”

(This is a brain exercise. I don’t know all the answers to these questions, but I know what I think the answers are. I’m taking the absolute position in my questioning. I enjoy the debate.)

 

[thperez1972]

If a person has paid their debt back to society, prison sentence, then I have no problem with a felon having a gun. Unless the provision is that part of their punishment for life is to lose certain rights. Not sure how felons with guns is worded.

If a man is jailed, for any reason, and is then released should he no longer be allowed to defend his own life or those of his family?

What if he is released on parole? Would that time on the street when he's still on paper be part of his sentence? If so, would that time, after being released from jail but still on parole, be part of his debt to society?

 

[Strick8]

What if he is released on parole? Would that time on the street when he's still on paper be part of his sentence? If so, would that time, after being released from jail but still on parole, be part of his debt to society?

Let’s assume he’s still on some sort of probation, but he’s no longer incarcerated. He’s home with his family. It’s late, he tells his wife and kids goodnight. Should he have the right, without penalty of law, to sleep with a pistol on his nightstand to defend himself and his family against an intruder?

 

[thperez1972]

Let’s assume he’s still on some sort of probation, but he’s no longer incarcerated. He’s home with his family. It’s late, he tells his wife and kids goodnight. Should he have the right, without penalty of law, to sleep with a pistol on his nightstand to defend himself and his family against an intruder?

You tell me. If he's given probation in lieu of prison time or released to parole after serving his 35% for non-violent crimes, he's on the street but he's still under his sentence. I.e., he's not yet paid his debt to society.

And something to consider, the charge he's on paper for may not be the initial charge. It's not uncommon for someone to take a plea in exchange for dropping a violent charge to a non-violent charge. For example, a guy armed with a gun breaks into a house. He's then arrested for aggravated burglary. The DA might bill him for the same charge. If he's convicted, I believe he has to do 75% or 85% of his time before he can come out on parole. Rather than go to trial and take a chance, he takes a plea in exchange for the DA dropping the charge to simple burglary. That is not a "crime of violence" listed under 14:2. So he's only got to do 35% before being able to parole out. So a guy with violent actions is convicted of a non-violent crime. Should he have the right, without penalty of law, to carry a concealed pistol on him when the law goes into effect while he's still on paper?

 

[Strick8]

You tell me. If he's given probation in lieu of prison time or released to parole after serving his 35% for non-violent crimes, he's on the street but he's still under his sentence. I.e., he's not yet paid his debt to society.

And something to consider, the charge he's on paper for may not be the initial charge. It's not uncommon for someone to take a plea in exchange for dropping a violent charge to a non-violent charge. For example, a guy armed with a gun breaks into a house. He's then arrested for aggravated burglary. The DA might bill him for the same charge. If he's convicted, I believe he has to do 75% or 85% of his time before he can come out on parole. Rather than go to trial and take a chance, he takes a plea in exchange for the DA dropping the charge to simple burglary. That is not a "crime of violence" listed under 14:2. So he's only got to do 35% before being able to parole out. So a guy with violent actions is convicted of a non-violent crime. Should he have the right, without penalty of law, to carry a concealed pistol on him when the law goes into effect while he's still on paper?

All good questions. And relevant in the eyes of the courts and law enforcement.

So as I read your comment I’m going to guess that your position is that if: 1) there is still some parole restriction in place, meaning a “debt to society” is yet to be “paid”, 2) there is a violence component involved, whether as part of the actual conviction or otherwise, and 3) that all of the aforementioned is codified in “law”, then the guy has forfeited his right to self defense and the defense of his family by use of a firearm.

And that may seem reasonable to some people.

So for our example, he is still on parole restrictions. His crime involved beating his neighbor with a tire iron for hitting his mailbox. Therefore, he has not “paid his debt” to society, AND he is under penalty of law for a violent felony. So when he tells his wife and kids goodnight he has no “legal” right to possess a firearm as a means of self-defense. If an intruder breaks into his home with a loaded pistol he better be ready to defend his family with a knife, slingshot, pepper spray, or whatever else he can throw at the guy who’s broken into his home ready to kill anyone in his way.
——————

I don’t know the answer to how everything “should” be. But I look at it this way:

*The right to self defense is a God-given right, it just exists as a practical part of survival.
*I interpret that the Constitution, 2A, puts no restriction on the people as it relates to the right to have and carry firearms. (And I don’t think a felon loses his rights under any other of the Bill of Rights.)
*I know as a matter of fact that anyone who wishes to can access a firearm, whether legally or not, and anyone wanting to re-offend can and will regardless of what the law tells him.
*Thus, I believe that prohibiting firearms to a felon is an exercise in futility and practically a waste of time.
*I believe that if our legal system determines it’s time, for whatever reason, to release someone from prison and back into society, that person still has as much a right to self defense as anyone. And I think the release of this individual by the legal system is an acknowledgment that it is safe to do so, right or wrong.

I take my position on the basis that bad guys are bad guys, and if outside of a prison, will continue to be bad guys no matter what you tell them. I don’t think for one minute that crime rates would skyrocket if violent felons were “allowed” to own and possess firearms. They just wouldn’t have to hide it. Hopefully they won’t re-offend, but again, if they do it’s not because they had “legal” access to a firearm - it’s because they’re a bad guy. And hopefully this time society will pay its debt to the victim by keeping this bad guy behind bars.

And I believe any man in his own home or on the street has the right to defend himself and his family with a firearm, under no penalty of law.

These laws don’t work. And there is someone very close to me who cannot put a firearm on his nightstand at night because 25 years ago he was convicted of a non-violent, white collar crime. And because he’s a good guy who made a bad decision and has learned from it he’s going to follow the law and not obtain a firearm. His wife and kids are in danger in their own home for no good reason. So yeah, these laws really just don’t work. I’m hoping rulings like the one today at the 9th will start the ball rolling to correct this injustice.

So someone may say I’m an idiot, how could I think it’s ever reasonable that a man who beat his wife should be allowed to have a firearm?!

Because he’s going to get it either way. Make the penalties more severe for severe crimes and keep their asses in prison. Stop with the defund police, easy on crime, “send psychologists and not law enforcement to diffuse domestic disputes!” bull crap. That emboldens the bad guys.

Fire away! I’m not saying I’m right, just saying how I see it. Prove me wrong!

 

[thperez1972]

It seems you feel that at the time the 2nd amendment was written, there were no crimes that would have removed someone from "the people" whose right to bear arms was guaranteed. Is that right? If so, should people be able to exercise their 2nd amendment rights in prison?

 

[Strick8]

It seems you feel that at the time the 2nd amendment was written, there were no crimes that would have removed someone from "the people" whose right to bear arms was guaranteed. Is that right? If so, should people be able to exercise their 2nd amendment rights in prison?

I’m taking the extreme position, interpreting the Constitution as absolute. The Courts have obviously ruled otherwise, thus the ability to restrict weapons access… at least on paper. I just think the laws don’t do what they’re intended to do. Should we still try? Sure. But tougher laws and enforcing the ones we have now is a better start IMO.

As far as firearms in prison the field is even. No one (bad guys) has them or real access to obtain one (at least it’s EXTREMELY rare that a prisoner gets his hands on a gun while incarcerated). Self defense is man on man. And even in prison weapons can be accessed by those who want them. It would defeat the purpose of incarceration if the criminals could wage battle with their jailers. But I get your point - my argument would seem to support guns for everyone, everywhere.

I’m focusing more on free men and the ability to bring a gun to a gunfight. If a criminal comes into my home with a gun I should be able to defend myself with a gun. Of course my example is based on a violent felon trying to do right, with a normal family and good intent. I’d imagine that’s not the typical case.

Thanks for engaging in the debate with me. Did I scare everyone else off?! Lol

Btw, I didn’t realize until I read somewhere here on BS that felon in possession restrictions weren’t in place until the Firearms Act of 1968?!

 

[GunRelated]

This is a win. Although, I'm sure the people who feel incapable of any wrong doing probably don't see it that way.

 

[thperez1972]

I’m taking the extreme position, interpreting the Constitution as absolute. The Courts have obviously ruled otherwise, thus the ability to restrict weapons access… at least on paper. I just think the laws don’t do what they’re intended to do. Should we still try? Sure. But tougher laws and enforcing the ones we have now is a better start IMO.

As far as firearms in prison the field is even. No one (bad guys) has them or real access to obtain one (at least it’s EXTREMELY rare that a prisoner gets his hands on a gun while incarcerated). Self defense is man on man. And even in prison weapons can be accessed by those who want them. It would defeat the purpose of incarceration if the criminals could wage battle with their jailers. But I get your point - my argument would seem to support guns for everyone, everywhere.

I’m focusing more on free men and the ability to bring a gun to a gunfight. If a criminal comes into my home with a gun I should be able to defend myself with a gun. Of course my example is based on a violent felon trying to do right, with a normal family and good intent. I’d imagine that’s not the typical case.

Thanks for engaging in the debate with me. Did I scare everyone else off?! Lol

Btw, I didn’t realize until I read somewhere here on BS that felon in possession restrictions weren’t in place until the Firearms Act of 1968?!

Someone on probation or parole isn't free. They're just serving all or part of their sentence not in prison.

 

[machinedrummer]

Actually allowing these hardcore criminals to exercise their 2A while inside would clear up a lot of our future funding, overcrowding, and crime problems. There should be a facility that does an experiment to test the results. Cali is always looking to give criminals more rights than law abiding citizens. Start there.

 

[Strick8]

Someone on probation or parole isn't free. They're just serving all or part of their sentence not in prison.

Free as in the community, subject to the whims of those who would harm them, just like the legally free (e.g., you and I).

The bigger question to me isn’t what the law is. It is what it is, and we need laws. And most people will alter their actions to comply with the law in order to stay free.

I see the Constitution/Bill of Rights as the way the founding fathers set forth what government CANNOT limit. They’re forming a new nation based on personal freedoms and God-given rights. They know laws are needed, but they’re putting together a founding document to enumerate the non-negotiables.

First thing they say is untouchable is the freedom of a man to speak what he wants, worship how he wants (etc.). In effect make whatever laws you want, but you CANNOT impose on these rights.

The second prohibition they place on the new government is that it CANNOT infringe on a man’s right to own and carry “arms”. Period. It doesn’t say which kind (options were obviously much different then, but the left no wiggle room). And it doesn’t place limits on the “who”.

The question then is at what point CAN the Republic step in and override a provision of the Bill of Rights? There are legal and judicial precedent where this has been decided. (Because a law exists does not mean it’s Constitutional.) So we have to abide by these or face punishment from our government, no matter the intent of the founding fathers. Fair enough.

That brings me to the larger philosophical question around which most of my discussion revolves: why shouldn’t all men have the right to defend their lives without facing punishment from the government? Is this right truly God-given, a right of basic human survival, or is it limited by past indiscretions?

I may think I know that answer, but it’s my answer - which ultimately doesn’t matter. And NOTHING in my position is in SUPPORT of the violent felon in the sense of me advocating for them as bad dudes. If we presume that all laws are followed by all people, good and bad, surely we’d be in a safer world with the existing laws restricting gun access of felons. But as I’ve stated multiple times, that world does not and never will exist regardless of the law. I believe that although a man is a felon he has the right to defend himself in a legitimate exercise of self defense. And since felons get guns anyhow the felon in possession laws are worthless IMO. The better solution is address the problem where no limits have been placed - tougher penalties on violent crime and ENFORCEMENT OF THESE LAWS (I.e., keep their butts in prison!)!

What scares me is the door that’s suddenly been blown wide open to limit free speech, religious freedom and whatever else I’m missing. The Bill of Rights is effectively being tossed to the wayside. And I think the history of 2A infringement and the incessant barrage of 2A infringing rules being imposed sets the precedent and paves the way for it’s (BoR’s) dismantling. The good news is that although the politically- driven courts are trying to re-write law, we are scoring important victories against many of these infringements. I hope this continues. Of course we all know that at some point the USSC is gonna flip. And we’re in trouble.

 

[Manimal]

bring back dueling, reduce murder and bring back honorable death.

Parole/Probation is part of the penalty, it's "paid" when it's over, and paid up felons should be able to own firearms.

get rid of plea bargains, get rid of qualified immunity, get rid of petty moral laws, and gets create an actual civil society!

Execute baby diddlers, rapists (real not #metoo "rape" 30yrs after "buyers remorse"), and common street thug murderers/assaulters, (only caught red handed) and victimizers. Give victims the ability to execute or exile their perpetrators, under supervision of the State since people love government)

And we need to build barrier Islands off of the coast, like China does, where we can exile trash that makes society a fearful and corrupt place. There will be put corrupt politicians & the exiles. They get to face storms and invasions, and they'll live like the Palestinians without building supplies to create a functional society.


...just thoughts...

 

[Strick8]

bring back dueling, reduce murder and bring back honorable death.

Parole/Probation is part of the penalty, it's "paid" when it's over, and paid up felons should be able to own firearms.

get rid of plea bargains, get rid of qualified immunity, get rid of petty moral laws, and gets create an actual civil society!

Execute baby diddlers, rapists (real not #metoo "rape" 30yrs after "buyers remorse"), and common street thug murderers/assaulters, (only caught red handed) and victimizers. Give victims the ability to execute or exile their perpetrators, under supervision of the State since people love government)

And we need to build barrier Islands off of the coast, like China does, where we can exile trash that makes society a fearful and corrupt place. There will be put corrupt politicians & the exiles. They get to face storms and invasions, and they'll live like the Palestinians without building supplies to create a functional society.


...just thoughts...