NC Supreme Court finds prohibition on (some) felons possessing firearms unconstitutional.

http://www.reflector.com/news/state/nc-supreme-court-restores-felons-gun-rights-801681.html



The opinion and some analysis is available at The Volokh Conspiracy



http://volokh.com/posts/1251496843.shtml

So the guy’s gone 30 years W/out committing a crime, during that time he has demonstrated responsible firearm ownership, he was originally busted on a non-violent crime. How does his ownership of a firearm make the world less safe?

Edit: spelling

Great post!

:hi:

there are three wars going on right now that significantly affect constitutional rights, and the penal codes

1) war on drugs
2) war on terror (less so with local and state agencies)
3) war on domestic violence

all 3 have resulted in (in some cases) overbroad kneejerk legislation, and in some cases even unconstitutional restrictions on liberty.

those done under #3 are the least challenged because few people want to attack such laws, lest they be deemed to be not down with the cause of suppressing domestic violence. thus, for example, overbroad laws like WA states cyberstalking law, get approved w/nary a debate.

and the opportunity is being utterly discarded. It's as though the court WANTS to promote more guns in more hands! Sick, so sick and misguided.

Just because the govt "can" exclude someone isn't "good enough". A "perfectly defined class" has no legitimacy. Blacks are a perfectly defined class. Would banning all black people from owning a weapon be Constitutional? Jews are an even easier to define class because it is binary. One is either a Jew or not a Jew (as opposed to mixed races). Would a law banning all Jews be Constitutional?

Simply having a defined class doesn't give rise to the scrutiny required to restrict a right.

http://en.wikipedia.org/wiki/Strict_scrutiny

First, it must be justified by a compelling governmental interest. While the Courts have never brightly defined how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred. Examples include national security, preserving the lives of multiple individuals, and not violating explicit constitutional protections.

Second, the law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (over-broad) or fails to address essential aspects of the compelling interest (under-inclusive), then the rule is not considered narrowly tailored.

Finally, the law or policy must be the least restrictive means for achieving that interest. More accurately, there cannot be a less restrictive way to effectively achieve the compelling government interest, but the test will not fail just because there is another method that is equally the least restrictive. Some legal scholars consider this 'least restrictive means' requirement part of being narrowly tailored, though the Court generally evaluates it as a separate prong.

No doubt a compelling interest exists in public safety to keep firearms from those who are likely to offend with them (again).

Where the law fails is on narrowly tailored aspect. Is it possible to keep firearms from violent felons without infringing upon non-violent felons? Is it possible to keep firearms from habitual offenders or persons recently convicted without infringing upon someone with a single conviction a long time in the past? Unless their is evidence that all felons are equally likely to commit crimes with firearms then the law fails the "narrowly tailored" test.

Of course there are method to restrict violent habitual offenders from legal access to firearms while restoring access to non-violent felons. It IS possible to serve the "compelling govt interest" (public safety) by using a more narrowly tailored restriction.

We haven't even got to the third standard yet because the law failed at number two. The third standard is a good example of why it is Constitutional to ban guns in the IMMEDIATE vicinity of the President but not blocks away just because it is "near" (but no in line of sight) of the President. Restricting weapons in the presence of the President is the least restrictive method to protect the President (serve the compelling govt interest). Someone blocks away from the President would need to move to the President's immediate vicinity to start an attack thus weapons can be restricted there without infringe upon the rights of those further away.

an unwholesome purpose though. And it flows from a poor premise. That possession of a gun is an individual right meriting constitutional protection. All jurisprudence should be directed at tearing down any such mistaken belief, not perpetuating it.

DC v. Heller established an individual right not connected to service in the militia DOES INDEED exist.

Given that an individual right exists the above applies.

Now you believe it doesn't exist that is fine and it is fine for justices to have an individual belief that is the same.

However our legal system works on the foundation that as long as Heller is not overturned it is precedent.
Any judge who simply ignores Heller (even if it is 100% wrong) is not following the law.

Without the law we have anarchy. Every judge ruling based on personal belief not precedent. If a judge can ignore DC v. Heller than another one can ignore Roe v. Wade or even Brown v. Board of Education.

So if you strongly believe that Heller is a flawed decision you have w separate routes:
1) find a group that brings a case attempt to overturn Heller and support that. If Heller is overturned and a future Supreme Court finds no individual right exists then you are correct my analysis above has no legal standing. I believe the right exists even without the Constitution but that would be little legal evidence.

2) Amend the Constitution to revise or repeal the 2nd amendment to the United States Constitution. I personally would consider that an act of tyranny as it is my personal belief that the right exists without the Constitution. I also understand that any actions I take in defense of that right may result in criminal charges by a tyrannical govt who would deny me my inalienable rights.

However until the sad day that either #1 or #2 happens the law of the land is that an individual right exists and Justices are duty bound to accept (if not like) it.

COMMERCE in guns and ammo is not protected. No constitutional right to manufacture, distribute, sell or import. That way, Heller fans can still have their Heller, but we can begin to turn the tide on proliferation at the source (to wit, for pecuniary gain.)

You may call that a sad day. I, of course, will call it a Happy One!

With booze.

http://en.wikipedia.org/wiki/Eighteenth_Amendment_to_the_United_States_Constitution



That one didn't work out so well.

If such a ruling happened it IMHO would infringe upon the right to keep and bear arms. Would it completely eliminate it? Of course not but that isn't the standard. Infringement is the standard and it would infringe upon many people's rights. If the govt restricted/eliminated the commerce of books would that infringe upon the 1st?

How do you reconcile a complete ban with strict scrutiny? You still cling to this idea that the govt can ban something gives it the authority. Strict scrutiny requires that there be no other option but a ban to achieve the compelling government interest.

Earlier you seemed to espouse a limit on selling (i.e. commerce) but now you throw in production and distribution the 1st amendment equivalent would be not only making book selling illegal but the very act of printing illegal.

Still all that is hypothetical and lucky no court would say a right exists but the same govt can make it illegal to produce, sell, or distribute the protected item necessary for the right.

It hasn't (and never will) happened yet so as of right now this second all judges have a duty to respect established precedent. Until a case limits Heller it is binding precedent. Any judge who ignores it is violating the law and the oath they took. As such the RKBA is a right and law makers should apply strict scrutiny when crafting restrictions and judges should look for violations of strict scrutiny when hearing appeals on 2nd amendment grounds.

A government which tolerates the proliferation of gun and ammo possession is inviting the public's self help in administering vigilante justice, entirely sidestepping the role of the police, courts and penal system.

A nice ripe Castle Doctrine case could be the ticket to dialing back some of the wild west ethic which keeps feeding our 2A beast.

The function of the Police is to arrest suspects, gather evidence, and support DA at trial. None of which is prevented by lawful use of firearms.

Given that the govt has no legitimacy to deny effective means of personal defense.

Now you're REALLY grasping for straws. One logical implication of that doctrine would be that any government that denies it's citizens the right to defend themselves would assume liability for failure to defend a citizen.

You can't have it both ways- if I can't defend myself, then the cops are responsible for defending me.

Since the SCOTUS has ruled that the police have no duty to protect us (See DeShaney, Castle Rock, Winnebago), it's an untenable position. The only way that would work is if by depriving me of my rights, a 'special relationship' is created (basically, the police only have to protect you when you are in custody or some other 'special relationship' has been established.) We would have to hire 100x as many cops to protect each and every citizen, or face huge liability (sovereign immunity notwithstanding.)

Actually, one could easily reach the opposite conclusion—that by depriving citizens of a means to protect themselves, their families, and their belongings, the government is denying our substantive due process right to life and liberty under the 14th.

Turns out someone IS home, and the burglar tries to flee.

The homeowner shoots the burglar in the back and the burglar falls dead.

There are a lot of legal formalities which have been dispensed with in this scenario to have a sentence of capital punishment imposed upon the burglar.

Estate of Burglar v. Joe Homeowner. Estate of Burglar v. Attorney General of State-With-Unlimited-Castle-Doctrine.

This seems like an area of potential promise to explore in balancing constitutional protections, and perhaps de-fanging the 2A monster just a wee bit.

It simply shifts the burden to the prosecutor.

No Castle Doctrine - home owner must prove he/she acted in self defense.
Castle Doctine - DA must prove homeowner did NOT act in self defense.

That is it.

Now if the DA can prove that homeowner did not act in self defense then he/she will be charged.
If the DA can NOT prove it then how would you in a lawsuit. The classic catch-22.

If you can't prove the homeowner didn't act in self defense then your entire theory goes out the window however if you can prove the homeowner acted in self defense then the homeowner wasn't protected by castle doctrine and the failure to prosecute is on the DA.

That's the main reason why a criminal prosecution is more difficult than a civil suit.

Also, the DA's determination that a jury would be unwilling to convict REGARDLESS of the evidence is a reason why a prosecution for a bad shoot might not be pursued.

But most importantly, in those versions of Castle or Make My Day which eliminate any duty to withdraw or warn before shooting and declare open season on fleeing perps, there is no objective standard for a prosecutor to apply. The surviving shooter has the sole voice, and the dead tell no tales.

Even in states that have no duty to retreat or warn doesn't allow shooting at a fleeing perp.

That law only exists in your mind. Once again it simply shifts the burden to the prosecutor. If the prosecutor can prove that an execution occurred then it isn't self defense and it is a homicide.

Dead men certainly due tell tales they just need a translator called CSI.

In determining whether use of lethal force in self-defense was justified, there are three criteria that have to be met, commonly known as Ability, Opportunity and Jeopardy.
Ability is that the person defended against had the physical means to inflict grievous bodily harm or death on you.
Opportunity means that the person was in a position to inflict physical harm upon you.
Jeopardy means that you had a reasonable belief, based on the person's behavior, that he or she intended you harm.

Normally, all three criteria have to be met before a shooting is justified. You can't shoot a guy walking towards you (opportunity) swinging a baseball bat (ability) when you're the umpire standing at home plate and he's the next batter up (no jeopardy). You can't shoot a known martial artist (ability) who's screaming that he's going to kill you and the other jurors for finding him guilty (jeopardy) when he's in restraints and being led away by the bailiffs (no opportunity). You can't shoot someone who's standing right in front of you (opportunity) and stating that she hates you and is going to kill you (jeopardy) when that someone is an unarmed 6 year-old girl (no ability).

What Castle Doctrine laws do is establish that, in the event that a person has gained unlawful entry into an occupied dwelling (opportunity), an inhabitant of that dwelling is justified in assuming--absent evidence to the contrary--that the other two criteria have also been met: that the intruder intends to inflict grievous bodily harm on the inhabitants (jeopardy) and possesses the means to do so (ability), and that the inhabitant was therefore justified in using lethal force to stop the intruder.

So it doesn't create "open season"; if forensic or other evidence indicates that one of the three criteria had not been met, and that this should reasonably have been within the inhabitant's ability to perceive, the Castle defense stops. So there is a standard; maybe not an objective one, but since self-defense generally hinge on "reasonable belief" anyway, Castle Doctrine makes no difference there.



Jury nullification? You know how heavily the deck is stacked against that these days? Both prosecutors and judges really don't like juries to exercise their power of nullification (whether it's their right is open to discussion, but they indisputably have the power). Such jury members tend to get weeded out during voir dire.

Not that I'd surprised if there were plenty of potential jurors who'd refuse to convict. Burglars are, not to put too fine a point on it, scum. The damage they cause--both material and emotional--is well in excess of what they gain from their crime.

If a crook happens to pick the wrong house (mine) to break into. In Colorado the law reads that if the BG is in your house and you feel threatened (however slightly) you are with in your rights to use deadly force to stop the threat. I choose not to trust my life to the mercy of a criminal.

That's why we have judges, District Attorneys, juries and all that other stuff.

Due process is only afforded by the government.. you can't claim that one citizen can deprive another of due process. You're not even using terms that relate to each other.

Deprived of life, yes. Justified? For a jury to decide.

So you really don't have a point.

Reduce police response time to zero and that problem would be solved. Until then, some people will need to defend themselves and the legitimacy of that defense will have to be determined after the fact by the courts.

That would work, except for the fact that we have laws dealing with the appropriate use of force.

You cannot hunt down a shoplifter two weeks after the fact and kill them. (Well, you could, but it would be murder.)
*using "you" as a way to state the point simply, not implying anything about other posters.

...of printing presses, typewriters, computers, printers, etc. etc. on the grounds that this would not be an infringement of freedom of the press, because you'd still have the freedom to own one? If you could buy one, which you can't.

I find it a very curious idea that you can acknowledge that there exists a right to possess a particular good, but not to produce it and sell it to the people who have a right to possess it. That sounds like a fairly transparent attempt to evade the spirit of the law that prevents you from getting your way.

Because a distinction is already made for military grade armaments and munitions.

Gradually moving the line from acceptable to unacceptable should be the joint mission of all branches and levels of government, in furthering a national life without guns and ammo.

So why not just be honest and spend your life trying to repeal the 2nd.

Saying the right exists and at the same time indicating and end goal of no guns and ammo is hypocritical.

If the govt can accept a right exists and deny the right at the same time then it is tyranical.

There is a lawful means to end the restriction on the govts powers to restrict firearms, repeal of the 2nd amendment. It is the only lawful method to achieve the end result you want.

Tyrannical? Or just drawing the line at a place deemed good for society?

The limit on tobacco is Constitutional because it follows strict scrutiny.

The govt could have tried to ban all commercial speech in an attempt to ban all promotion of undesirable or dangerous products however that would not be tailored narrowly enough and it would have been struck down as unconstitutional.

It doesn't matter if you like the right or not strict scrutiny applies:
http://en.wikipedia.org/wiki/Strict_scrutiny

Your goal is a country without guns and ammo (of course even ignoring the obvious that you would simply have a country without LEGAL guns and ammo) to do that requires abolishing the 2nd. Pretending otherwise is just disingenuous.

At least be honest and not hide behind the "public good" history shows lots of damage has been done "in the public good"..

If you limited advertising of firearms it would be similar to limiting advertising of tobacco.

However outlawing the sale, production, or distribution of firearms would be like doing the same thing for tobacco. While you could do it with tobacco the 2nd protects the RKBA from infringement. It protect RKBA form INFRINGEMENT not just complete abolishment. To infringe even the slightest the govt needs to prove it passes strict scrutiny. There is no amount of "free infringement".

You fail to realize that any govt who could make the kinda legal pretzels necessary to accomplish your end goal without repealing the 2nd could do the same to any other right. Don't you see the danger in that.

You have a lawful method to eliminate or substantially reduce personal firearm ownership however you reach for the method that is inherently dangerous in the naive belief that the govt would stop the civil rights violations at the 2nd when all the historical evidence indicates it won't. You reach for the dangerous method over the lawful one because it is easier and ends justify the means.

So sad that is exactly how tyranny comes about.

Since no license is required to publish a book or website in reliance on the 1st, an "infringement" already exists upon the 2nd which leaves plenty of room to work with.

Who wants to undertake to attempt to repeal the 2nd Amendment? It is an unnecessary frontal assault on gun love.

You see tyranny from the government? I see tyranny from individuals with the power to conveniently kill upon caprice or whim, and from those interests who would flood society with more guns and ammo, ensuring eventual conflagration and collapse.

Licenses also exists for free speech, broadcast licenses, license to operate a business, cable franchise agreements, sat transmission licenses.

However to think the courts will make the jump from licenses = passes strict scrutiny to banning all forms of commerce involving firearms well that is a leap of faith nobody, not even other antis are delusional enough to believe.

While you may see tyranny of individuals even if you are right the Bill of Rights is a set of lawful restrictions upon the GOVT not the individual.

I do "NOT" need a license from the ATFE to manufacture a working firearm for my personal use. Nor is it required to have a serial number as required by the GCA 1968 for those firearms being made for sale.

Other have already shown the rationalization the government has to license other aspects of the firearms trade.

They are inanimate objects that are in capable of being good or evil in them selves and are used far More often to prevent crime than facilitate it

I contend that crime you say guns prevent is crime which guns also enable.

And that when guns are put forward as a solution to guns the problem, it is a circle of futility.

Most importantly, guns are what are reached for to solve other problems of a more personal and psychiatric nature, resulting in the deliberate slaughter of innocents as an expression of petty, subjective discontent.

People use guns to defend/protect.
Others use guns to commit crimes.
Further, other crimes are committed or stopped without guns.
It is not the object that is causing either crime or self-defense. (Although the competant use of firearms greatly reduces the probability of being injured during a crime. Compliance is the third lowest probability, if you were wondering.)

Guns are not a solution to a gun problem. In some cases, they are an answer to a violent attack problem.

We don't make morphine available over the counter and try to distinguish who will use it responsibly from those who will misuse it.

We simply say, this is bad to have out there and we cut off access generally.

Is morphine more or less harmful than guns and ammo? In fact, was morphine ever really a problem of being used against unwilling victims like guns and ammo are?

Of course you still ignore the reality of the Heller Decision.

The 2nd as much as you hate it IS an individual right. There is no right to get high by morphine or any other drug.

As misguided as you may believe the RKBA is it still is a right and the Bill of Rights is a set of limits on the actions of the federal govt.

The govt could chose to make morphine over the counter or they could make morphine in any for illegal they don't need to check to see if that infringement is acceptable under the Bill of Rights because no right exists.

That can't be said about firearms. Any restriction no matter how small must pass strict scrutiny. If it doesn't then it isn't Constitutional.

Cause the war on (some drugs) has worked so well up to now hasn't it?

Shares what he thinks about the War on Drugs.

Personally, I favor legalization (not that wishy-washy "look the other way" decriminalization, I mean legalization) of drugs for recreational purposes*, if for no other reason that prohibition--like that other Prohibition--as been an abysmal failure. So if your argument is "well, morphine is illegal," my answer will be "and that shouldn't be either."

* - I'll make an exception for meth because the production causes a disgusting amount of toxic waste, about six units for every unit of meth produced. But if other, less harmful drugs were more readily available, people who might otherwise do meth would have better alternatives.

I joined DU because I’d heard so much about how anti gun you guys were I came over here to look around from another gun board and was very pleasantly surprised that there are far more freedom loving folks here than I was lead to believe. It is highly likely that I will only be posting in this sub-forum.

I tend to be very Libertarian (which means both republicans and democrats hate me) and I believe that if you can be trusted to live in society you should be trusted W/ a firearm. Conversely, if you can’t be trusted W/ a firearm you shouldn't be allowed out in public.

On the Second Amendment I tend to be an absolutionist, IOW I fully support your right to walk in to any gun store and buy any gun sans background check of any kind ( OK I’ll concede to an age check to make sure you’re 18) and that once you buy that gun you should be allowed to carry it anywhere in any fashion you choose. I believe that the crime rate would drop to almost nil if this were the case

IMO an armed citizenry is the surest means of protecting the people’s liberty there is.

Now, from that basis to you wish to continue this conversation?

EDIT: Spelling

OK, I have you down for that. Open fire America!

At Virginia tech one gunman armed W/ 2 pistols was able to kill 32 people over the span of two hours because no one else was armed and able to fight back.

At New Life Church one gunman armed W/ an AR-15, two or three pistols wearing body armor and Kevlar was able to kill 3 people before running into a private citizen who had volunteered to provide security (along w/ several other ushers) for the church. She WAS NOT a licensed security guard as some news outlets have reported. She dropped him in his tracks before the first 911 call was even made

EDIT I want to add as well that the NLC shooter had THOUSANDS of rounds of ammunition and had killed several UNARMED people the night before at a church in Denver.

Also for those not familiar W/ NLC it is a HUGE church that seat 10,000 plus a service, the hire off duty CSPD cops to direct traffic affter service so in this case the police were ON THE SCENE when the shooter opened fire and they didn't know what was going on until the shooter was already dead

"O genie, grant me my fondest wish.. I want a pony."

http://lawreview.law.wfu.edu/documents/issue.43.837.pdf

According to the DOJ there is no evidence linking any piece of gun control legislation to a reduction in crime anywhere. In Mexico where civilian ownership of ANY weapon in a “military” caliber is prohibited fully automatic weapons and RPG ( Pa-leeze don’t try to tell me they’re getting them from American gun shows) abound.

The fact is that here in the real world the bad guys are going to get guns (all you need is a machine shop) and when only the bad guys (or the State) have guns the body counts are higher.

You and I will never agree on this subject, we’re polar opposites. You’re a Statist I’m a hard core Libertarian. I want the state to have as little power over me as possible and I want the means to stand the state down in the PEOPLE’S hands. You want ONLY the State to have guns (don’t even try to fool yourself that they’ll EVER give them up). The problem with that is that every time all the power rests in the hands of the State ( doesn’t matter if it’s Obama or Bush) people end up in boxcars

:rofl:

According to the DOJ there is no evidence linking any piece of gun control legislation to a reduction in crime anywhere.

Cite, please?

In Mexico where civilian ownership of ANY weapon in a “military” caliber is prohibited fully automatic weapons and RPG ( Pa-leeze don’t try to tell me they’re getting them from American gun shows) abound.

I'll bet you're aware that "gun control legislation" and "gun control" aren't the same thing.

I wonder what the average speed on highways in the US currently posted with a 65 mph limit would be, if police had no radar equipment?

The fact is that here in the real world the bad guys are going to get guns (all you need is a machine shop) ...

How fortunate that all the high-school dropouts who now have guns managed to take that shop class before leaving. All that demand for guns, you'd think some of them would be churning them out as we speak!

... and when only the bad guys (or the State) have guns the body counts are higher.

Ah. Really. You read that on a stone tablet somewhere?

You’re a Statist I’m a hard core Libertarian.

Nah. Some people have a decent concern for others and for their community, some people don't.

http://www.keepandbeararms.com/newsarchives/XcNewsPlus.asp?cmd=view&articleid=409
Even a recent study published in the Journal of the American Medical Association, which is well known for its anti-gun bias, reported that the 1994 Brady Law has not had a discernible impact on homicide or suicide rates. The results from this study are completely counter to claims by gun control groups, like Handgun Control, Inc., which have repeatedly claimed that such laws have saved thousands of lives. This aforementioned study

Ah. Really. You read that on a stone tablet somewhere?





Paul Harvey on Guns
Monday, November 06, 2000

Are you considering backing gun control laws? Do you think that because you may not own a gun, the rights guaranteed by the Second Amendment don't matter?

CONSIDER:

In 1929 the Soviet Union established gun control. From 1929 to 1953, approximately 20 million dissidents, unable to defend themselves, were rounded up and exterminated.

In 1911, Turkey established gun control. From 1915-1917, 1.5 million Armenians, unable to defend themselves, were rounded up and exterminated.

Germany established gun control in 1938 and from 1939 to 1945, 13 million Jews, gypsies, homosexuals, the mentally ill, and others, who were unable to defend themselves, were rounded up and exterminated.

China established gun control in 1935. From 1948 to 1952, 20 million political dissidents, unable to defend themselves, were rounded up and exterminated.

Guatemala established gun control in 1964. From 1964 to 1981, 100,000 Mayan Indians, unable to defend themselves, were rounded up and exterminated.

Uganda established gun control in 1970. From 1971 to 1979, 300,000 Christians, unable to defend themselves, were rounded up and exterminated.

Cambodia established gun control in 1956. From 1975 to 1977, one million "educated" people, unable to defend themselves, were rounded up and exterminated.


Compare Luby's cafeteria to New Life Church compare VA Tech to Logan Utah

You have a reputation beyond DU Iverglass you're a hard core gun hater and nothing I say is going to change your mind. Hopefully though I may reach a fence sitter

http://www.keepandbeararms.com/newsarchives/XcNewsPlus....
Even a recent study published in the Journal of the American Medical Association, which is well known for its anti-gun bias, reported that the 1994 Brady Law has not had a discernible impact on homicide or suicide rates. The results from this study are completely counter to claims by gun control groups, like Handgun Control, Inc., which have repeatedly claimed that such laws have saved thousands of lives. This aforementioned study

No, ta. I'll take a citation of, and quotation from, the "recent study". Not from your right-wing dishonest gun militant "source".

In your own time, now.

Paul Harvey on Guns
Monday, November 06, 2000

Okay, now you're being really amusing. Good job, keep it up!

You have a reputation beyond DU Iverglass you're a hard core gun hater

Nah, sweetie. I'm a hard-core hater of misogynists, racists and other assorted bigots and right-wing scum. And gun militants are them.

Guns, I have no emotions about. I'm not actually delusional. I can distinguish between the object and the individuals/groups using it.

But like I said, I’m not really aiming at you dear. You aren’t going to change your mind
Let me explain exactly where I’m coming from
I have a God given (or natural if you prefer) right to life and liberty. That right did not descend to me from any government (or document and) no government can take them from me. Incumbent to those rights is the right to defend them by any means necessary or available. That’s my world view

I’m not really aiming at you dear.

Who didn't know that?

You're aiming at people who are stupid enough to swallow your crap. Just like the rest of the gun militants.

Seriously, it's one long post hoc ergo propter hoc fallacy. Let me point out the obvious crap ones first:

In 1935, the Nationalists were in power. In spite of any gun control measures they may have passed, they were driven off the Chinese mainland by 1949 by the Communists, who'd managed to arm themselves in spite of any KMT gun controls.


Same story here. The gun control measures were passed before the Khmer Rouge even existed, but failed to stop the Khmer Rouge from gaining power by force of arms.


Actually, Germany established gun control well before the Nazis came to power (partly in an effort to prevent both the Nazis and the Communists from seizing power by force of arms). The 1938 law actually liberalized firearms ownership, provided you weren't a member of an "undesirable" demographic. The Jews, gypsies et al. weren't overly likely to possess firearms even before 1938, so it's unlikely they could have mounted an organized resistance.

The main problem with this litany is that it asks you to believe that the victims would have been capable of resisting being "rounded up and exterminated," but were not capable of resisting having their firearms confiscated in the first place.

I joined DU because I’d heard so much about how anti gun you guys were


Good one. Will you continue to be so amusing? One can hope!

Probably not, I was very pleasantly surprised to find that most of the folks here are as much, if not more, vocal about your right to freedom than the republicans are

What the Court said:

http://www.aoc.state.nc.us/www/public/sc/opinions/2009/pdf/488-07-1.pdf
(selected passages; emphases mine)

This case presents an as-applied challenge to the constitutionality of the 2004 amendment to N.C.G.S. § 14-415.1 that makes it “unlawful for any person who has been convicted of a felony to purchase, own, possess, or have in his custody, care, or control any firearm.” We determine that N.C.G.S. § 14-415.1 is unconstitutional as applied to plaintiff and reverse the decision of the Court of Appeals.

... Accordingly, this Court must determine whether, as applied to plaintiff, N.C.G.S. § 14-415.1 is a reasonable regulation.<2>

<2> Because we hold that application of N.C.G.S. § 14-415.1 to plaintiff is not a reasonable regulation, we need not address plaintiff’s argument that the right to keep and bear arms is a fundamental right entitled to a higher level of scrutiny.

... We conclude that N.C.G.S. § 14-415.1 is an unconstitutional violation of Article I, Section 30 of the North Carolina Constitution as applied to this plaintiff. As discussed above, pursuant to N.C.G.S. § 14-415.1, the State unreasonably divested plaintiff of his right to own a firearm. Such action violates plaintiff’s right to keep and bear arms under Article I, Section 30 of the North Carolina Constitution. For that reason, we reverse the decision of the Court of Appeals to the extent that court determined N.C.G.S. § 14-415.1 can be constitutionally applied to plaintiff.

dissent:

Because the majority has crafted an individualized exception for a sympathetic plaintiff, thereby placing North Carolina in the unique position of being the first jurisdiction, either federal or state, to hold that the inherent police power of the State must yield to a convicted felon’s right to own a firearm, I respectfully dissent.

Although the majority stands up for Mr. Britt and other convicted felons who will now undoubtedly seek judicial exemption from N.C.G.S. § 14-415.1, this is a policy matter and determination best left to the executive or legislative branches.

What it did NOT say was that strict scrutiny applied. So I don't understand why you are saying that the prohibition failed some part of the strict scrutiny test. The individual was seeking a personal exemption from the effects of the legislation, not to have the legislation struck down.

I would note once again that a prohibition like the one in the US, on "felons" possessing firearms, would fail in Canada just as the prohibition on penitentiary inmates voting failed. It is too broad a class, and the restriction would not be the minimum necessary in order to achieve the legislative purpose. That is why applications for licences to possess firearms in Canada are dealt with on an individual basis, and the only absolute bar to a licence is a firearms prohibition order expressly imposed by a court as part of an individual sentence of an individual offender for a particular criminal offence.

(Also by way of analogy, this case is similar to the Larimer case in Canada, the father convicted of the "mercy killing" of his severely disabled daughter. He sought a constitutional exemption from the mandatory 10-year minimum to be served on a conviction for second-degree murder. The Supreme Court of Canada denied it, also citing the legislature's authority in matters of policy.)

"Plaintiff, through his uncontested lifelong nonviolence towards other citizens, his thirty years of law-abiding conduct since his crime, his seventeen years of responsible, lawful firearm possession between 1987 and 2004, and his assiduous and proactive compliance with the 2004 amendment, has affirmatively demonstrated that he is not among the class of citizens who pose a threat to public peace and safety...."


Frankly, there is no convincing reason to suspect that his possession of a firearm is a threat to any member of the public.
...at least from what is posted.

And this court missed an opportunity to prevent him from becoming armed.

A foolish mistake.

"He poses at least the same level of threat as anyone who possesses a gun does. And this court missed an opportunity to prevent him from becoming armed."

Ever heard of Equal Protection under the law?

If he is no more or less of a threat then any other person then the court CAN'T just deny him a firearm they would need to deny everyone access to firearms.

Which is what you want. Complete disarmament of all law abiding citizens.

The fascist thing isn't so much that belief but the belief you can do it lawfully without repealing the second.

Obviously, this court is infected with the same gun love which infects so much of our nation.

Exalting the most revered value: More arms into the hands of the public!

An opportunity lost to take a stand and say no.

Regrettable.

As quoted from the original post:

"Plaintiff’s right to possess firearms was restored in 1987."

In other words, the felony conviction was no longer a bar to gun ownership. Any law that attempts to remove that right to ownership is in direct violation of the second amendment. It might also be unconstitutional as an Ex Post Facto law, in that possession of the guns he legally bought prior to the passage of the law was criminalized. I leave that up to those of you who are much better versed in legal affairs than I.

SharesUnited, I respect your views. Unlike others in this forum, you are willing to engage in reasoned debate, and I try to respond in kind (Mea culpa for my "Are you on Drugs?" remark in another post!). however, I'm pretty sure that we will never agree on this subject. I will continue to try to bring you to the light...and enjoy future sparring sessions.

I met a fellow who served time. For several years after getting released, he kept clean. He "applied" for a restoration of 2A rights and now has a muzzle-loader with which to hunt. I wouldn't worry about being in the field with him -- except for the noxious cloud!

rehabilitate people if we deny them any hope of a return of their constitutional rights?

No one said ANYTHING about "proliferation"

This is an appellate court opinion which discards a golden opportunity to exclude, and to put the burden on the excluded class to take the battle to SCOTUS.

And pretty soon they'll exclude everybody, then they'll start loadin' up the boxcars

And should be struck down.

Justice Timmons-Goodson's concerns can be addressed by the legislature passing laws that aren't overly broad or take effect retroactively on people who have had their firearm rights restored. God, I hate the mentality among legislators that compels them to present themselves as being more "tough on crime" than their opponents.

The guy is non-violent, and even went to the Sheriff to confirm the law and turn in his firearms.
There should always be a way to appeal any denial of rights, and this seems like a logical result of such an appeal.

People make mistakes, and people can and do change. They shouldn't permanently lose any of their Rights just because of some non-violent crime that happened long ago. While serving under Probation or Parole, obviously they can restrict your Rights since you are still technically a ward of the state. But once you have finished out your complete sentence, your Rights should be restored -- all of them: the right to vote, the right to be free of unreasonable search and seizure, and the right to keep and bear arms.

Is NC going to repeal the law? It seems what is unconstitutional for one is for all. Does the law just automatically go back to a five year ban?

My layman interpretation is the law is Constitutional IF the legislature provides some mechanism for remedy.

So something like you lose firearms rights and after 5 years you can appeal to have them reinstated.
The court was largely absent on the exact mechanism but rather there must be a mechanism in place.

I could even imagine a situation where people with certain felonies (armed robbery, murder, home invasion, etc) are prohibited from appeal and the law still be Constitutional.

Seeing as this is a state issue NC has no further legal option so likely they will need to modify the law. Time is of the essence cause I imagine a couple dozen people are filing lawsuits as we speak and the number will grow to hundreds before too long so unless they want NC courts to be buried in a deluge of lawsuits they should act quickly.

My layman interpretation is the law is Constitutional IF the legislature provides some mechanism for remedy.

Unfortunately, your lay interpretation isn't accurate.

As the Court said: "other convicted felons who will now undoubtedly seek judicial exemption" -- so yes, if the state doesn't want to be buried in litigation, it will provide an internal / administrative mechanism for seeking an exemption.

Again, see my post 72 and my post in reply to the one you replied to.

No, and that is the entire point.

A few people here need to study up. "Constitutional exemption" is the relevant concept.

Here's a fun one:

http://www.fec.gov/law/litigation/rnc_fec_supp_reply_mot_sj.pdf

The RNC seeks a constitutional exemption to the soft-money ban
as applied to the party’s intended spending on certain activities.

Similar:

http://www.jamesmadisoncenter.org/WI/WRTL-Dorsenetal.pdf (my emphasis)

For example, McConnell holds that minor parties can claim a constitutional exemption from BCRA’s soft-money ban by showing that the ban on receiving or spending soft money “prevents it from ‘amassing the resources for effective advocacy,’” McConnell, 540 U.S. at 159 (quoting Buckley, 424 U.S. at 21), a test that is nothing if not fact-intensive. A similar standard applies if a litigant wishes to mount an as-applied challenge to BCRA’s ban on soft money contributions to state and local political parties. See id. at 173 (requiring as-applied challenger to show that the ban’s effect on contributions “is ‘so radical in effect as to . . . drive the sound of the voice below the level of notice’” (quoting Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 397 (2000))).

See my post 72 re the "as-applied" nature of the NC case.