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Tuesday, September 20, 2022

A blow against the Gun Control Act of 1968

Following the assassinations of JFK, his brother Bobby, and Martin Luther King, Congress passed the Gun Control Act of 1968, which established background checks for gun purchases. Criminals, the mentally ill, drug addicts, alcoholics and others were banned from buying guns.

The first category of the banned were a person who "is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year."

In short, felons. 

What is curious is that being accused of a crime -- "is under indictment for" -- can deprive you of your right to purchase a firearm.

Now this law has been on the books for 54 years and no one has successfully challenged the deprivation of a liberty protected by the Constitution without due process.

On Monday, that changed. In Pecos, Texas, U.S. District Judge David Counts dismissed an indictment of Jose Gomez Quiroz, who had purchased a pistol while under indictment for burglary and missing court dates. At the time, Quiroz was not a convicted felon. He was only charged.

The reporting is limited to AP and the Texas Tribune, a whackadoodle lefty publication that keeps pushing Beto as the man who will turn Texas blue. The phrase sounds like strangulation.

AP reported, "In a 25-page opinion filed in Pecos, Texas, Counts acknowledged 'this case’s real-world consequences — certainly valid public policy and safety concerns exist.' However, he said a Supreme Court ruling this summer in a challenge brought by the New York Rifle & Pistol Association 'framed those concerns solely as a historical analysis.

"'Although not exhaustive, the Court’s historical survey finds little evidence that ... (the federal ban) — which prohibits those under felony indictment from obtaining a firearm — aligns with this Nation’s historical tradition.'"

The judge said,  the "Second Amendment is not a ’second class right.'"

Of course not. Nor is the Fifth Amendment, which states, "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

You cannot be deprived if life or liberty without due process. I can see where a judge might say, OK, Jose, you are a risk, so I'm going to keep you from buying a gun pre-trial.

But the law forbids people who are indicted but not convicted of a crime from buying a gun. Why should a fellow charged with not paying his full taxes be banned from buying a gun?

To me, this should not be a Second Amendment case but rather a Fifth Amendment one.

Most of the Gun Control Act of 1968 makes sense, but denying a liberty without due process bothers me.

25 comments:

  1. "nor be deprived of life, liberty, or property, without due process of law". The first thing that comes to my mind is all the folks in jail for "parading" on Jan. 6, 2021. At the very least, they should have been bailed out over a year ago.

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    Replies
    1. Yes. But true consistency with our rights is not a high priority for the current Regime and its Deep State supporters. I anticipate greater deviations from what should happen by what will happen. Time to armor up.

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    2. biden is fighting to get the 9 ft dykey basketball player out of a Russian jail, while illegally holding Americans in jail, J6. He is funding Ukraine to kill Russians, while spending billions more to find a cure for cancer, because he is such a humanitarian.
      At least he is saving energy at home, when he showers with his daughter, we got to give him that.

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  2. Replies
    1. I be white collar crimes should be exempt from being denied access to purchase a weapon also.

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  3. Seems to me that this same analysis renders unconstitutional those statutes authorizing extreme risk protection orders that allow guns to be taken away on an allegation that its owner is a threat.

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  4. I think you are correct that The Fifth Amendment is implicated in this case, Don, but it is primarily a Second Amendment case dealing with federal regulation under The Gun Control Act of 1968. In recent Supreme Court Second Amendment cases, the Due Process clause of the Fourteenth Amendment was used to require state-level gun restrictions to be consistent with American historical tradition of firearms regulation. Since this case involves an act of Congress, the identical Due Process clause of the Fifth Amendment would presumably apply instead, with the identical analysis. I'm not aware of any pre-1968 prohibitions on people that had been merely indicted of a felony, so that may not be in our historical tradition of firearms regulation.

    What's more, I'm not aware of a pre-1968 historical tradition prohibiting convicted felons of exercising their Second Amendment rights after serving their sentence and being released. I think that the general historical tradition has been that a convicted person had "paid his debt to society" upon completion of his sentence. So, The Gun Control Act of 1968 may be about to unravel in more ways than one if this case gets appealed to The Supreme Court.

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    Replies
    1. Nope. Individual rights Trump government rights, every time. If that's not the case, with the intent to limit the powers of federal government, we need better judges and legislators

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  5. I could get used to this. A judge following the law and/or the constitution.

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    Replies
    1. Almont sounds to good to be true ! 👍

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    2. EN2 SS says;
      Don't hold your breath, S L, it happens so infrequently, you might go from blue to dead white.

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  6. In Pennsylvania all crimes from felony first degree to misdemeanor of third degree are punishable by a sentence of at least one year in jail. The only exceptions I know of are low blood alcohol and minor marijuana possession. Therefore anyone in PA convicted of basically any offense is second amendment barred for the rest of his life unless he received a pardon from the governor. This is overbroad. Should be limited to convictions for gun related charges or crimes of violence.

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  7. If someone cry’s “fire” in a theater when there’s no fire, does he lose his 1st A right before or after conviction?

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  8. With all due respect, while you may feel most of the 1968 gun grab makes sense to you, the 2nd Amendment, an enumerated right, is only one simple sentence and has no exclusions or exceptions and simply isn't open to an interpretive dance about feels.

    Common sense feels is why the 2nd is the most abridged right that we have effectively lost.

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    Replies
    1. EN2 SS says;
      Demoncrat 'feels', not logic, is why we are in the mess we're in.

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    2. Exactly. Love your work Don, but the second amendment has no exclusions, caveats, or exceptions, so all of the 1968 gun control law is extra constitutional. Now, once someone has gone through due process, rights can be removed. Otherwise not, in the case of the 2A there are no footnotes. Right to keep and bear “arms” shall not be infringed.

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  9. A judge can prohibit a person under bail from possessing a gun. He can't be prosecuted criminally for violating a bail order, but he can be found in contempt, have his bail revoked, and jailed for violating the bail terms.

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  10. If he was prosecuted for lying on the form, then Hunter should be prosecuted for same. That is the reason he wasn't.

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  11. The Right of the People to keep and bear arms shall not be infringed. There is no following "amendment" that can EVER change this, if you want proof, look at the First which states - CONGRESS SHALL PASS NO LAW.
    It is that stupid/simple.

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    Replies
    1. Each and every gun law, whether local, state, or federal is unconstitutional as the very purpose of it's existence is to infringe on the right to keep and bear arms.

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  12. But here's the REAL kicker though! The legal system/Matrix is a CRIMINAL organization, as it commits crimes against everyone who goes in there EVERY SINGLE DAY!!! The legal system/Matrix could not exist at all, if its Agents, Operators, Actors or Officers were not allowed to commit those crimes! Prove me to be wrong, if you can!! Since when do men and women who are proven criminals, get to have any amount of power or authority over anyone else? If you expose the frauds and other crimes of the legal system, you will winnnn!!!

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  13. How can a person who purchased more than 1oz. of weed 30 years ago be deprived of the right to defend themselves and their family when their state has now legalized weed?

    ReplyDelete
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