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LadyPact -> RE: Accusation = Loss of Constitutional Rights (10/7/2017 11:37:19 AM)
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quote:
ORIGINAL: MercTech
Some of the laws that seem very hinky to me deal with loss of rights just on the accusation of a crime with no evidence or conviction extant. Or, revocation of Constitutional rights for less than a Felony Conviction.
In this specific; the California provision providing for confiscation of firearms upon a person swearing out a court order with no provision for due process prior to a search and confiscation.
http://smartgunlaws.org/domestic-violence-and-firearms-in-california/
This also gets into question 11.h on the Federal Firearms Transaction Record asking if you have a court order relating to domestic violence or child abuse. What makes it hinky is that there are states, such as California, where you have to right to challenge a court order prior to it being issued resulting in a restriction of rights with no due process.
Link to ATF requirements to purchase a firearm and a copy of the Federal Firearm Transaction Form.
https://www.atf.gov/firearms/atf-form-4473-firearms-transaction-record-revisions
Now, in the 10th circuit, there is a challenge to the provision removing constitutional rights upon a misdemeanor conviction.
http://www.ca10.uscourts.gov/opinions/16/16-3070.pdf
What is the opinion in this dungeon; should a person lose constitutional rights upon a misdemeanor conviction on a count of domestic violence or should it remain as it historically was that it took a felony grade conviction to curtail a citizen's rights?
As I'm sure you are aware, you and I probably have different thoughts on this.
First, we should kind of face the fact that the individual states do a lousy job at even removing firearms from those who DO have felony DV convictions. Yes, there are laws in place for this, but truthfully, there is lousy follow up on it. Mostly, such laws rely on the honor system. Conviction happens, a part of the sentence is to surrender said firearms, but actual law enforcement taking possession of such firearms doesn't happen. The lack of enforcing the removal of firearms is rather pathetic. This is particularly true for states such as CA, TX, and NY.
With this in mind, we have to look at the two areas that you brought up. One being accusations without due process and those with misdemeanor convictions. Let's take these two issues and address them independent.
The accusation part. It would be difficult to argue that any person involved in due process doesn't have restrictions that could be called infringement of rights. Upon a person's entering a plea during their right of due process, the court has the authority to impose certain restrictions on the individual until their case goes to trial. Some of these can include that they can not leave the jurisdiction, have contact with witnesses, a gag order has been imposed that they can not discuss the matters of the trial, no contact with children, and a number of others. Why should a person's firearm possession, or a sanction against purchasing additional firearms, be treated any differently than any of these?
The misdemeanor, rather than a felony part. I fully support ANY type of DV/familial violence conviction being a forfeiture of the person's right to carry a weapon. The conviction is already proof beyond reasonable doubt that the person was/had intention to be violent. This isn't even looking at how hard it is to get that conviction, or how more serious crimes are often plead down to get a resolution to a case. You're not talking about shoplifting or traffic tickets here. You are talking about inherently violent crime. In such cases, one conviction should be enough.
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