A great idea

As most of you know, there is a thread entitled "A question"
that discusses where and how to draw the line on firearm possesion for convicted criminals. Other than a small amount of vitriol, I am pleased with the way it went. It basically distilled down to this idea:

"Perhaps what is needed is to go back a step, and ensure that "felonies" and "misdemeanours" are actually properly classified, or that specific felonies (or even some misdemeanours) are used for the classification exercise, so that the former category would not likely be so over-broad and it could validly be used to distinguish those to whom possession of firearms could be justifiably denied."-Iverglass

I believe that this is a good idea, and as-distilled, merits discussion IMO.

I know that this isn't going to be an easy topic, with the pro vs anti battles that sometimes take place here, but this is an idea that I believe both sides may be able to win on.

Note: forgot to add, I believe this idea could greatly help identifying those that shouldn't have guns, while leaving those that are not a threat to society alone. Pros and cons please.

... (such as assault or armed robbery) should NEVER be allowed anywhere near a gun. But I don't have a problem with restoring the gun rights of someone convicted of a non-violent crime (such as embezzlement).

Is this really any sort of burning issue to anyone?

More of a way of discussing that there ARE folks who should NOT have guns that slip through the cracks and make all pro gunners look bad, and there are also presently prohibited persons that perhaps should not be prohibited.

In any case, this discussion is about how to better identify both types of persons, and whether it could work.

And ya, folks of all stripes in J/PS seem genuinely interested.

The questions are the same in all situations: what rights can be justifiably restricted for what reasons, what constitutes justification, etc. etc.

Never hurts to exercise the brain and analytical skills by considering some particular question, even if it's completely bizarre. (Can the government prohibit the wearing of pink on Tuesdays? Assume that Tuesday is a holy day for 1/3 of the population, and pink is an abomination to their religion and their culture is in danger of extinction ... or assume that pink clothing requires 3 times as much water to wash and electricity to dry as other clothing, and shortages are occurring ...)

In the context of disagreement on a multi-faceted issue, it is *always* useful to identify where agreement might be found, in order to narrow the issue and identify the points of irreconcilable disagreement -- if in fact there are any. And if there are, then once they are properly defined, some authority has to be empowered to decide them. Voilà, supreme courts.

But widespread adherence to the principles that a society has theoretically reached consensus on (voilà: constitutions) and that the courts will apply in deciding such issues is important, if their decisions are to be recognized as legitimate. Discussions of issues like these, no matter how bizarre, and no matter how irreconcilable the final conclusions of the two sides, strengthen that adhesion and enhance each side's respect for the other as sincerely supportive of the shared principles, if not supportive of the way the first side applies them -- and that respect is essential in a democracy.

I'd even say that the whole is-it-or-isn't-it an individual/a collective right in that 2nd amendment becomes essentially irrelevant when the right questions are asked. If it's an individual right, it may not be "infringed" -- but neither may all of the other individual rights which appear to be infringed all the time (free speech, liberty, etc.). The ability of a society to restrict the exercise of a right where there is justification for doing so is obviously inherent in the very concept of "rights", and justified restriction of the "right" to bear arms could surely be no less permissible than justified restriction of speech.

The very first amendment says:

Congress shall make no law ... abridging
the freedom of speech ...

... and yet Congress does that constantly. Treasonous speech is an offence; perjury is an offence, threatening the president is an offence, etc. etc. etc. All legislative abridgements of the freedom of speech. How could possession of firearms be above such justifiable restriction?

I mean ... unless somebody really does believe that your founders & framers intended possession of firearms to rank above freedom of speech (not to mention the right to life, which is "abridged" or "infringed" by the imposition of the death penalty) in the firmament of rights ...

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CO,

I completely agree with your statement.

The only concern I have(thus far) is that often in cases of domestic violence, both partys (the offender and the victim) are arrested. perhaps thats one of those things that need to be reclassified so that one is legaly identified as a victim, and classified accordingly. I know thats a can of worms though.

Such agreements with the opposing view are ....refreshing.:)

We've had many stories here in Colorado where violent people have killed their entire families. It's a problem that needs to be addressed on all levels.

It does need to be addressed on all levels. I'm certain we will not agree with solutions, but thats what debate is all about.

For the moment, its nice to be in agreement with someone I thought I'd constantly fighting with.

This reminds me of a line from the movie x-men:

"Were not what you think, not all of us" - Professor Charles Xavier

I guess that applies to folks on both sides of the gun debate.

Exactly what is sufficient, in terms of a criminal conviction, to get someone in the US banned from possessing firearms?

- different rules in different states?
- blanket prohibitions?
- individual prohibitions (e.g. as conditions of probation/parole)?
(Probation terms are imposed by courts; parole terms are imposed by parole boards.)

So far, it's looking to me like Canada is much MORE lenient in this respect than the US (in addition to not barring inmates from voting, etc.).

I posted the Canadian legislation in the other thread (post 72). Basically, there is no blanket prohibition. There is discretion in the firearms officer (who issues licences, which are required in order to possess firearms lawfully), and a list of factors that must be considered in exercising that discretion; they boil down to (I paraphrase somewhat):

having been found guilty of
- an offence in the commission of which violence against another person was used, threatened or attempted
- an offence in relation to firearms
(carrying concealed, unauthorized possession, careless use, etc.)
- trafficking in & possession of certain drugs (*not* including less than 3 kilos of pot or hash) for the purpose of trafficking; exporting & possession of drugs for the purpose of exporting; producing drugs (not including cannabis)

having been treated for a mental illness that was associated with violence or threatened or attempted violence on the part of the person against any person

having a history of behaviour that includes violence or threatened or attempted violence on the part of the person against any person

http://www.canlii.org/ca/sta/f-11.6/whole.html

Issuance is indeed discretionary:

A person is not eligible to hold a licence if it is desirable, in the interests of the safety of that or any other person, that the person not possess a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition or prohibited ammunition.

... but any abuse of that discretion would be rejected by the courts. In fact, a firearms officer could well issue a licence to someone who flunked the guidelines quoted above, because Parliament may not "fetter the discretion" of someone to whom it gives discretion by requiring that it be exercised in a certain way; it can only require that the decision-maker consider certain things.

So effectively, there *are no* blanket prohibitions in Canada. Each application is decided on its merits. And even people who have orders made against them personally, as part of a sentence, prohibiting them from possessing firearms, may apply for and be granted a licence if they need a firearm for "sustenance or employment".

Once again, Canada is in the forefront of the "liberal" approach to rights and freedoms. Hehe, I love it.

Oh, and I'm not disagreeing with our legislation. It is a finely focused, appropriately targeted interference with the exercise of a right. Firearms possession is a "right" here in the same sense that possession of a dog or a Cuisinart is a right: it's an exercise of liberty, a personal choice that people are entitled to make, subject to any restriction that is justified by the need to achieve a valid and sufficiently important public objective.

And in fact the possession of firearms for "sustenance" -- for subsistence hunting -- is a "right" that is widely recognized and protected, as is clear from the legislation I've referred to. It is also regarded as not just an individual "right", but an element of the collective right to self-determination of the First Nations people, for instance: their collective/traditional hunting and fishing rights are given great weight by the courts, and firearms possession is recognized as essential to the exercise of those rights and therefore subject to restriction only for very good reason.

So I trust that everyone is sufficiently gobsmacked: I, along with the Parliament of that complacent, compliant bunch of people sitting on your upper border, seem to be "pro" on this issue.

Funny how no one ever bothered to actually ask, before. And amazing what asking the right question will do.

Now, that is the solution to the question that applies in Canada, of course. That's not to say that more severe restrictions might not be justified in the US, based on experience and nuances in values.

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But you do get long winded,(more of an observation, not a complaint)
and as I'm in slow mode at the moment, ill take it piece by piece from the top.

"Exactly what is sufficient, in terms of a criminal conviction, to get someone in the US banned from possessing firearms?"

Federally, as I understand the law(I may be off)prohibited persons are felons(any), persons who have been commited to a mental institution for something beyond observation, and persons found guilty of a misdemeanor crime of domestic violence. There are more, I think, but they aren't coming to mind at the moment. I guess the federal laws would be the closest thging to blanket since it covers the entire US, but really isn't "blanket" in the traditional sense of the meaning of the word.

The thing that bothers me about the domestic violence is that often the victim is prosecuted along with the offender, and most smaller courts don't seem to be aware of the law believe it or not. Though, this may be getting better.

As states go, I know verry little about most states laws, other than the Cal. AW ban.but i'd wager their far from consistant. Though Im unsure they need to be consistant.

As far as probation or parole, I reckon there are folks with knowledge about it, but I'm not one of them.


I'll be back later, I need to rest..

should be grounds for firearm ban.

Poor judgment used in drinking/using machinery could easily tranlate to poor judgement used in drinking/using guns.

Poor judgment in getting one's self so drunk that one does not obey the rules and thereby endangers other people -- and not just poor judgment: the simple rule-flouting attitude that is exhibited by some drunk drivers -- doesn't recommend anyone for firearms possession.

The general instruction in the Canadian legislation could cover that situation:

A person is not eligible to hold a licence if it is desirable, in the interests of the safety of that or any other person, that the person not possess a firearm ...

The factors that the firearms officer is required to consider (conviction for violent offence, etc.) are not exhaustive and do not fetter his/her discretion to consider any other relevant factors, and I, personally, would consider drunk driving one such factor.

Aha, here's a tale that bears out your connection:

http://www.crimealerts.net/wawa.htm

Suspended driver leads to firearms seizure

(WAWA, ON) –

At approximately 1:30 pm on the 28th of October 2002, Chapleau OPP initiated a traffic stop on Highway 101. The driver of the vehicle was found to be a suspended driver. Further investigation by the officers located 2 firearms and ammunition in the rear of his vehicle. The driver did not possess the appropriate paperwork and was also found to have been prohibited from owning firearms for 5 years. The driver, 34-year-old David Bretzlaff, of Sudbury was charged with Possession of a firearm while prohibited and will appear in court on the 16th of December.

A 1:1 correlation can't be assumed, but there certainly seems to be some intersection between these sets. ;)

... And yes, there is a place in Ontario called Wawa. Home of the giant goose, I believe. Yes ...





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"... And yes, there is a place in Ontario called Wawa. Home of the giant goose, I believe. Yes ..."


Thats so similar to the giant paul bunyan with babe the blue ox in
brainerd(sp) MN!!

GRRR...god I miss snow!!!!!

"Felony drunk driving"?


I have no knowledge of what a felony DUI is, or what makes it different than regular DUI.

It varies state to state. Colorado & Pennsylvania don't have such a classification.

http://www3.madd.org/laws/law.cfm?LawID=DFEL

In California, for example, it breaks down like this:

http://guides.california-drunkdriving.org/felony_dui.html
"Felony DUI", the abbreviation for felony driving under the influence, refers to one of two more serious versions of the misdemeanor drunk driving charge. The differences in the first, DUI with injury, are primarily two. First, the offense requires more than just driving either (1) under the influence or (2) with .08% blood-alcohol or more, but further requires an injury to another caused by the driving. It further requires (3) a serious injury to another human being. In some jurisdictions, such as California, the felony offense also requires (4) independent proof of negligent driving or violation of a traffic law. Second, the offense is usually punishable by a prison sentence, rather than a shorter county jail sentence such as with a misdemeanor. The second and more recent version of the felony DUI charge is brought where the driver has a bad criminal record involving DUIs, usually three or more prior convictions within a period of time (commonly seven years, as in California), or a previous felony DUI conviction.

felony DUI. Thanks much Wonk.;-)


A felony DUI IMO is a verry "mitigating" offense where bans on firearm ownership are concerned. By mitigating, I mean that I believe that this is a perfect example of a classification where some maybe SHOULD be banned, and some maybe SHOULD NOT. I think everyone will agree that alcohol(sp? shows ya'll how much I drink lol) can be mighty powerful-addicting.

On one hand, you have the "I don't need no help" types that refuse to admit they have a problem, refuse to seek help, or only get help when its legally forced on them and go on doing what they do, and living the way they live, reguardless of the consequences to others. I have NO sympathy for folks like that. I wouldn't want them around a car, or a gun, or my daughter. No way-No how. Now, I don't expect every pro-gunner will agree, and I certainly respect that. I speak only myself here.

On the other hand, you have an individual that KNOWS he/she has a problem, has been honestly trying to change, getting help, counseling,AA,etc. I have a hard time condemning this individual alongside the previous type of individual. And since this IS an addiction, I have alot of sympathy for the folks fighting the truly hard fight of alcoholism. I would have a verry hard time banning this type of individual from firearm ownership.

I guess to me, it all boils down to (in the above examples):

one person knowing whats right and wrong, fighting one of the most miserable addictions known to mankind, and trying to get help with the fight. I support in good conscience the right to own/posses firearms in this case.

AND

one person not giving a damn about his/her actions or the consequences others may pay for them. I can NOT in good conscience support firearm ownership/possession in this case whatsoever.


"The state IS JUSTIFIED in limiting the exercise of rights in order to protect the public. The questions are, basically:
- is the interference with the exercise of rights likely to contribute to achieving the objective of protecting the public?
- can that objective be achieved without interfering with the exercise of the rights? i.e. are there less intrusive ways of achieving the same objective?
- is the interference with the exercise of rights so serious that the objective does not outweigh the harm done?"
-Iverglass

Theres also the above "validation clauses" that this needs to be bounced off( though, they are canadian law, are they not?) for discussion sake at least.

Then theres the matter of "equal protection". Im not really sure how this would play out. One thing I AM sure of though:

Felony DUI is a GREAT first example of a classification that is IMO
NOT cut and dry at all, with addiction being involved.

Im going to post 3 replys to this thread, one entitled "offenses that WITHOUT QUESTION justify firearm prohibition for the offender in question", and all said offenses can be replys to that heading.

Also one entitled "offenses that without question DO NOT justify firearm prohibition for the offender in question", and likewise to the first with the replys.

And the third, "offenses that without question MAY or MAY-NOT justify firearm prohibition for the offender in question", and again, likewise to the replys.

This would seems to be a good way to keep them seperate, and discuss them seperately within the same thread. This doesn't appear to be against any rules that I'm aware of, but if it is, Please someone let me know asap.

Also, suggestions are welcome, especially being I'm A DU newcomer. Also, if there are objections, I'm not opposed to or above criticism.

for the offender in question.

Cut and dry offenses please. Just reply to this thread with the cut and dry "no question" offenses please.

for the offender in question.

Please reply to this thread with offenses that clearly DO NOT justify firearms prohibition.

Who was it that said you can steal more with a pen than a gun? (Maybe the Godfather movies ?!? LOL).

These criminals have proven they have no regard for the law. They are willing to destroy peoples lives, businesses, families, etc. in a WORSE way and even more throughly than a punk with a .22 who robs the grocey story of $200.

If someone is willing to take every last cent from a widow or disabled person, even if its through a paperwork scam rather than actual physical violence, aren't they quilty of a greater crime than the mugger?

Isn't the major difference between the mugger and the con man the tool they use? Why should we allow known criminals access to more tools, that may allow them to commit a larger variety of crimes?

Convicted embezzelers, con men, corporate raiders, tax cheats - no firearms.

to the offender in question.

Please reply to this post with offenses that are in need of clarification, may have potential mitigating circumstances, or may have 2 or more types of offender, like felony DUI does, IMO.

This is guaranteed to be the one post of the three that WILL have the most disagreement, and potential vitriol, and understandably so, lots of suspicion on both sides. I ask though, Please try to keep it as civil as possible. I truly believe that the pro and anti "factions" if you will, can win on this issue, and if that is the case, it WILL be a winner for the party.

A felony DUI IMO is a verry "mitigating" offense where bans on firearm ownership are concerned. By mitigating, I mean that I believe that this is a perfect example of a classification where some maybe SHOULD be banned, and some maybe SHOULD NOT. I think everyone will agree that alcohol(sp? shows ya'll how much I drink lol) can be mighty powerful-addicting.

On one hand, you have the "I don't need no help" types that refuse to admit they have a problem, refuse to seek help, or only get help when its legally forced on them and go on doing what they do, and living the way they live, reguardless of the consequences to others. I have NO sympathy for folks like that. I wouldn't want them around a car, or a gun, or my daughter. No way-No how. Now, I don't expect every pro-gunner will agree, and I certainly respect that. I speak only myself here.

On the other hand, you have an individual that KNOWS he/she has a problem, has been honestly trying to change, getting help, counseling,AA,etc. I have a hard time condemning this individual alongside the previous type of individual. And since this IS an addiction, I have alot of sympathy for the folks fighting the truly hard fight against alcoholism. I would have a verry hard time banning this type of individual from firearm ownership.

I guess to me, it all boils down to (in the above examples):

one person knowing whats right and wrong, fighting one of the most miserable addictions known to mankind, and trying to get help with the fight. I support in good conscience the right to own/posses firearms in this case.

AND

one person not giving a damn about his/her actions or the consequences others may pay for them. I can NOT in good conscience support firearm ownership/possession in this case whatsoever.

Note: the fact that I put felony DUI here does NOT make it a fact thats its not cut and dry, but I believe it is not, and that it merits further discussion as such.

I knew a guy (friend of a friend kinda thing) who I went deer hunting with one year. It was his farmland, so everything was cool. He didn't drink (that I know of) while we were hunting, but he was an alchoholic with (afaik at the time) one or two misdemeanor DUI convictions. I had a beer with him at the end of the day, but left when he brought out the whiskey. As an aside, he was quite helpful with the deer I bagged that year. Generally a pretty good guy, as far as I could tell when I knew him.

Anyhow, to make a long story short, I learned a few years later that he'd died while DUI. The occupants of the car he hit with his pickup survived, barely.

Should he have had the right to own his guns? He never hurt anyone with them...

:shrug:

This is where it gets muddy. In hindsight he probably should have had his driving license revoked, though it wasn't my job to do so. Could he have hypothetically been dangerous with his guns as well? I suppose so, but he didn't seem the type, though I do admit I didn't really know him all that well....

:shrug:

"This is where it gets muddy. In hindsight he probably should have had his driving license revoked, though it wasn't my job to do so. Could he have hypothetically been dangerous with his guns as well? I suppose so, but he didn't seem the type, though I do admit I didn't really know him all that well...."

Totally muddy.

"Should he have had the right to own his guns? He never hurt anyone with them..."

This question should be considered as well. If this person is no threat to society with his guns, should he lose the right to own or posses them? And thats not the only question, there are many.

The hard part, is that for every individual that is similar to your example, and every individual that fits my example of a felony DUI convict(the type that looks for help) there must be at least 1 that fit the "no firearms" example. This is the reason why I believe in the idea of reclassification of offenses.

Its is sad when ANYONE dies in an alcohol related accident, even when it is the party that is intoxicated.

"And since this IS an addiction, I have alot of sympathy for the folks fighting the truly hard fight against alcoholism. I would have a verry hard time banning this type of individual from firearm ownership."

Prohibition from owning a firearm -- like withdrawal of a driver's licence from a person with a medical condition that makes him/her dangerous behind the wheel -- is not a punishment. It is a measure to protect society. How much of a nice person an individual is, or how deserving s/he may be of our concern or admiration, doesn't come into it, in the first instance anyway.

In that sense it meets "equal protection" and "due process" -- it applies evenly across the board. If you don't meet the qualifications (where they are reasonably related to the activity the prohibition applies to), you are prohibited from it. If (hypothetically, and not taking a position on the issue) a driving-while-intoxicated conviction disqualified someone from possessing a firearm, that would apply equally to the Prime Minister and the local farmer.

Now under the Canadian law, the difference is that the local farmer might have a better chance of getting a firearms licence than the Prime Minister. If a drunk driving resulted in a firearms prohibition order, and they were both convicted of it, the PM would have no need to own a firearm. The farmer, on the other hand, could argue that he needed a firearm for "sustenance" (if s/he hunted regularly to supplement the family's food budget in winter, for instance), or "employment" (if a firearm were needed to protect livestock from predators).

So the farmer could go to a judge, after being prohibited from owning a firearm on grounds that were applied as part of the sentencing process (which must meet equal protection/due process requirements -- the prohibition must be rationally related to the offence), and argue that s/he should have an exemption. At that point, the farmer's personal characteristics -- e.g. having been sober for 6 months, that sort of thing -- would be taken into account.

If drunk driving were one of the offences in the list of things that a firearms officer must consider before granting a licence, the firearms officer could still use discretion to issue a licence -- and a person denied a licence could still have that exercise of discretion reviewed by a court.

"one person knowing whats right and wrong, fighting one of the most miserable addictions known to mankind, and trying to get help with the fight. I support in good conscience the right to own/posses firearms in this case."

But the plain fact is that the person may be unable (or ultimately unwilling) to keep fighting that fight, and that when intoxicated, s/he loses all judgment and/or all respect for society's rules. And the minute that the person became sufficiently intoxicated, public safety would be endangered in one way or another -- if the person had car keys, by drunk driving; if the person had a firearm, by drunk gun-handling. The loss of inhibitions (that right-from-wrong thing), and/or exacerbation of anger, hostility and self-absorption, and/or propensity to antagonize other people leading to escalated violence, etc. etc., that are common among drunks are not conducive to safe and legal firearms use.

I have major qualms about firearms being possessed by people with addictions of any kind. I've known 'em, intimately, and the self-absorption, and all its ramifications, that come both with the addiction itself and the with the use of the substance make such people (and I'm not saying necessarily all of them at all times) unpredictable and potentially dangerous to the public or to certain members of the public, even without cars or firearms. Why add either to the mix?

Again, it isnt a "punishment", it is a measure to protect society. Sentencing includes both factors: an element of retribution against the offender and an element of protection of society, along with rehabilitation, denunciation, and whatever else the prevailing sentencing theory considers. Where a court sentences someone and imposes a ban on firearms possession, the court is acting within its "protection of society" mandate, not its "retribution" mandate.

And that's specifically where blanket prohibitions -- be they on firearms possession or on voting -- may go astray. It may be that many of the people affected *are* being "punished" improperly, because there is no public-safety justification, for instance, for the prohibition that affects them.

But I'd say that a drunk driving conviction would at least raise a red flag, and make it worth investigating whether, in the words of the Canadian Criminal Code, "it is desirable, in the interests of the safety of that or any other person, that the person not possess a firearm".


Here's about the only case I could find on a quick google:
R. v. Tsapoitis (that's from google's cache; the site wasn't responding)

A respected member of the community was found guilty of assaulting a police officer -- shoving him in a moment of anger. He was denied a firearms licence. He sought judicial review, the judge considered all the facts of the case (including that the guy in question had been a civilian firearms instructor for the Cdn military, what fun), and directed that he be issued a licence.

.

I think this is one case where the US could borrow a page from Canada's play-book. Under U.S. federal law there is theoretically a procedure to have your firearms rights restored, but it is effectively blocked at present. I think the restoration of firearms right should be possible on a case-by-case basis, much as iverglas has described. A felon may have given up the blanket presumption that they are entitled to possess firearms, but let them make the case that they should have an exception.

I have no problem with that. Obviously, a violent offender will have a much harder time making that case than am embezzler.