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Title: Judge Neil Gorsuch: Some Cause for Concern (Stop & Frisk, Disarm)
Source:
Ameican Thinker
URL Source: http://www.americanthinker.com/arti ... ch_some_cause_for_concern.html
Published: Feb 3, 2017
Author: Lawrence D. Pratt and William J. Olson
Post Date: 2017-02-03 15:21:48 by Hondo68
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Views: 32138
Comments: 66
In recent days, news outlets have been reporting that 10th Circuit judge Neil Gorsuch has now risen to the top of President Trump's list of potential Supreme Court nominees. He apparently replaces Judge William Pryor, who was widely reported as previously leading the pack of potential nominees. Judge Pryor faced significant backlash from many on the right, including Evangelical Christians, criticizing Pryor's apparent support of the radical homosexual and transgender agenda. The danger in being the front runner for a spot on the High Court is that you receive intense scrutiny, and, as with most candidates, Judge Gorsuch is difficult to evaluate fully. Having spent some time digging into Judge Gorsuch's background, we have found many good indicators. First, we should say that we personally knew his mother – Anne Gorsuch Burford, a lawyer whom President Reagan appointed in 1981 as director of the Environmental Protection Agency. Anne was both principled and fearless – taking many arrows in her faithful pursuit of President Reagan's environmental agenda. Sadly, the Reagan administration failed to provide her the backing she deserved, leading to her early departure from that position. Judge Gorsuch's distinguished maternal pedigree should not be overlooked. As to Judge Gorsuch's judicial record, he authored the excellent opinion in United States v. Ackerman, 831 F.3d 1292 (10th Cir. 2016), which, in an alternative holding, determined that government accessing a person's emails constitutes a "search" under the revitalized property rights trespass test articulated by Justice Scalia in the case of United States v. Jones, 132 S.Ct. 945 (2012). Additionally, Judge Gorsuch wrote a concurring opinion in the 10th Circuit, in what became the Hobby Lobby case in the U.S. Supreme Court, determining that the religious freedom of Christian businesses trumps the "right" of a woman to have her employer subsidize the killing of her unborn baby. Finally, Judge Gorsuch is a vocal critic of the modern "Administrative State" – advocating the elimination of the doctrine of "Chevron deferense," which has given unelected and unaccountable federal bureaucrats vast and unconstitutional power over just about every aspect of our lives. On the other hand, there is reason for pause with Judge Gorsuch's record. Judge Gorsuch joined in one opinion, United States v. Rodriguez, 739 F.3d 481 (11th Cir. 2013), which causes us to have some concern about his understanding of the relationship between the government and an armed citizenry. To be fair, Judge Gorsuch did not write the Rodriguez opinion – his colleague, Judge Bobby Baldock, was the author. Nevertheless, Judge Gorsuch joined the opinion. He could have filed a principled dissenting opinion, or even a concurring opinion agreeing only in the judgment. The facts of the case are these. A New Mexico policeman observed Mr. Rodriguez, a convenience store clerk, carrying a concealed handgun. Carrying a concealed loaded handgun is illegal in New Mexico without a permit but legal if one has a license to do so. The officer, upon seeing a Rodriguez's handgun, detained him, then – acting first and asking questions later – forcibly disarmed Rodriguez. After finding out that Rodriguez did not, in fact, have a license to carry and, indeed, was a convicted felon, the officer placed him under arrest. Of course, hard cases make bad law. But the precedent from the Rodriguez opinion will affect police-citizen relations in New Mexico, and possibly elsewhere in the Tenth Circuit, for many years to come. Not bothering to figure out the legality of Rodriguez's firearm before detaining and disarming him, the officer's initial actions would have been the same even if Mr. Rodriguez had been a lawful gun owner. According to the 10th Circuit's opinion, the police are justified in forcibly disarming every armed citizen based on nothing more than the presence of a concealed firearm. This allows the police to treat every law-abiding gun owner like a criminal – which, in many cases we have seen, includes rough treatment such as grabbing him, twisting his arm behind his back, slamming him down on the ground, and handcuffing him. Far too many police officers do not like anyone to be armed other than themselves and have taken it upon themselves to intimidate those who dare to exercise Second Amendment rights. Under the Rodriguez decision, only after being forcibly disarmed and detained would a citizen be entitled to demonstrate that he was lawfully exercising his Second Amendment rights. The Circuit Court based this decision on Terry v. Ohio, 392 U.S. 1 (1968) – the "stop and frisk" doctrine. One of the holdings from Terry is that, if the police have "reasonable suspicion" that a person is both "armed and dangerous," they can temporarily seize his weapon to keep everyone safe. Of course, anyone with a smidgeon of common sense knows that just being an "armed" law-abiding citizen does not also make a person "dangerous" any more than a police officer with a gun should be considered dangerous. Unfortunately, the Rodriguez opinion allows the police to conflate the two concepts and treat all armed persons as if they were automatically dangerous. According to the panel opinion joined by Judge Gorsuch, the mere presence of a loaded concealed firearm "alone is enough to justify [the officer's] action in removing the handgun from Defendant's waistband for the protection of himself and others." To be sure, Rodriguez did not raise a Second Amendment claim before the court, and the court cited various Fourth Amendment cases to justify its bad decision. But judges cannot completely hide behind precedent. Judge Gorsuch was free to express his disagreements with those precedents, even if he felt obliged to concur in the result. But that is not what he did. Instead, the court went so far as to quote Justice John Marshall Harlan II in Terry for the pre-Heller assertion that "'concealed weapons create an immediate and severe danger to the public.'" Is that what Judge Gorsuch thinks of the 14.5 million law-abiding Americans with concealed carry permits? That they are an immediate and severe danger to the public? Fortunately, the Framers disagreed, emphasizing in the Second Amendment that an armed populace is not only beneficial to, but indeed "necessary to" the preservation of a "free state." Unfortunately, in almost all of the countries of the world, the government considers an armed citizen a threat. But in the United States, the police should consider an armed citizenry one of the sources of strength of the nation. It is hard to imagine a better way to discourage law-abiding people from carrying guns than to do what the 10th Circuit did, and sanction the police forcibly disarming anyone seen carrying a gun. At the end of the day, a single opinion such as this is not be enough to derail a Supreme Court nomination, especially since Judge Gorsuch did not even write the opinion. But he certainly did join the opinion. And if he is nominated to the High Court, a pro-gun United States senator or two should most certainly inquire as to this decision and ask Judge Gorsuch to explain whether he really believes that the police should be free to treat all armed citizens as though they were dangerous criminals. Lawrence D. Pratt is executive director emeritus of Gun Owners of America. Twitter: https://twitter.com/larrypratt. William J. Olson is an attorney in private practice in Virginia with William J. Olson, P.C. and represents Gun Owners Foundation. Twitter: https://twitter.com/Olsonlaw. Poster Comment: Gorsuck is close to Trump's stance of Stop, Frisk & Confiscate guns. http://hotair.com/archives/2016/09/22/trump-stop-frisk-great-way-cops-seize-guns/
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Begin Trace Mode for Comment # 18.
#1. To: hondo68, GrandIsland (#0)
The facts of the case are these. A New Mexico policeman observed Mr. Rodriguez, a convenience store clerk, carrying a concealed handgun. Carrying a concealed loaded handgun is illegal in New Mexico without a permit but legal if one has a license to do so. The officer, upon seeing a Rodriguez's handgun, detained him, then – acting first and asking questions later – forcibly disarmed Rodriguez. After finding out that Rodriguez did not, in fact, have a license to carry and, indeed, was a convicted felon, the officer placed him under arrest. Further, Rather than accept the yellow journalism characterism of the court opinion in Rodriguez, it is preferable to review the actual opinion. Taking the second quote first, I would ask which part of the Second Amendment protects the right of a convicted felon to keep and bear a concealed stolen weapon? The yellow journalists are adequately addressed by the actual court opinion. http://lawofselfdefense.com/law_case/us-v-rodriguez-739-f-3d-481-10th-ct-app-2013/ State: United States v. Rodriguez, 739 F.3d 481 (10th Ct. App. 2013) United States Court of Appeals for the Tenth Circuit December 31, 2013, Filed No. 12-2203Reporter 739 F.3d 481 * | 2013 U.S. App. LEXIS 25853 ** | 2013 WL 6851128 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. DANIEL MANUEL RODRIGUEZ, Defendant – Appellant. Counsel: Scott M. Davidson, The Appellate Law Office of Scott M. Davidson, Albuquerque, New Mexico, for Defendant-Appellant. James R. W. Braun, Assistant United States Attorney (Kenneth J. Gonzales, United States Attorney, with him on the brief), Albuquerque, New Mexico, for Plaintiff-Appellee. Judges: Before GORSUCH and BALDOCK, Circuit Judges, and JACKSON, District Judge. Opinion by: BALDOCK Section 30-7-1 of the New Mexico Criminal Code defines “[c]arrying a deadly weapon” as “being armed with a deadly weapon by having it on the person, or in close proximity thereto, so that the weapon is readily accessible for use.” Section 30-7-2 of the Code is entitled “Unlawful carrying of a deadly weapon.” Subject to five enumerated exceptions, subsection (A) proscribes “carrying a concealed loaded firearm or any other type of deadly weapon anywhere[.]” N.M. Stat. Ann. § 30-7-2(A). The issue presented in this appeal is whether a police officer who observes a handgun tucked in the waistband underneath the shirt of a convenience store employee has reasonable suspicion that the employee is unlawfully carrying a deadly weapon in violation of § 30-7-2(A), in turn justifying a “stop and frisk.” The answer is yes. I. We succinctly state the relevant facts. Around 6:00 p.m. on July 27, 2011, Albuquerque Police Officer Frank Munoz responded to a dispatch informing him that two employees of the “Pit Stop” convenience store and gas station, located at 6102 Central Avenue SW in a reportedly “high crime” area, were showing each other handguns. Tr. vol. 3, at 8, 44. Fellow Officer Steven Miller also responded to the dispatch. Officer Munoz described the store as being “pretty small on the inside.” Id. at 13. Upon entering the store, Officer Munoz, accompanied by Officer Miller, observed Defendant Daniel Rodriguez a “couple feet away” stocking shelves. Id. at 14. As Defendant bent over, Officer Munoz noticed a silver handgun tucked in the back waistband of his pants. Defendant’s shirt concealed the handgun when he stood upright. Officer Munoz told Defendant, “Let me see your hands, and let’s step outside.” Id. at 51. At the suppression hearing, Officer Munoz testified: [Defendant] asked us what for, “What did I do?” And since we were in a pretty cramped area when we walked in, I didn’t want myself and Officer Miller or [Defendant], all of us, to be in that cramped area in case anything occurred, so I told him, “Let’s step outside,” and that I needed to ask him a question. He was a little upset and wanted to know what he had done. I told him to step outside. He then went past myself and Officer Miller to the door. As he pushed the door open once again his shirt came up, and I saw the gun, and it was at that time I pulled the gun out of the back of his waistband. Id. at 16. When asked why he removed the gun from Defendant’s waistband, Officer Munoz stated, “Just for officer safety, until we could figure out what was going on and why he had a firearm.” Id. Outside the store, Officer Munoz promptly asked Defendant why he was concealing a handgun. Defendant responded that “somebody had shot at him at that same location at the gas station.” Id. at 25. Officer Munoz asked Defendant whether he had a permit to carry the handgun. Defendant said he did not. Officer Munoz instructed Defendant to turn around and place ]his hands in the frisk position on a nearby truck. Visible tattoos on Defendant’s legs prompted Officer Munoz, a former prison guard, to ask Defendant if he had been arrested. Defendant stated he recently had been released from prison. Following an unremarkable “pat search” of Defendant, Officer Munoz permitted him to sit on the curb and smoke a cigarette. Id. at 19. A federal grand jury charged Defendant with one count of being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Defendant filed a motion to suppress evidence, claiming a number of constitutional violations arising out of the foregoing incident. The district court denied his motion in a lengthy opinion. United States v. Rodriguez, 836 F. Supp. 2d 1258 (D.N.M. 2011). Defendant subsequently entered a conditional] plea of guilty pursuant to Fed. R. Crim. P. 11(a)(2). After the court sentenced him to 30-months imprisonment, Defendant appealed only his Fourth Amendment claims that Officer Munoz unreasonably seized him and removed the handgun from his waistband. According to Defendant, “[p]ossession of a concealed firearm in the State of New Mexico, standing alone, cannot be the basis for the type of investigative detention and weapons seizure that [he] was subjected to.” Def’s Op. Br. at 15. Notably, Defendant does not dispute the district court’s findings, which are consistent with our recitation of the facts. The only question for us is whether the law as applied to those facts supports Defendant’s claim that Officer Munoz violated his Fourth Amendment rights. We review de novo the district court’s determination that the officer’s actions were reasonable within the meaning of the Fourth Amendment. See Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996). Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm. [...] B. At the commencement of their encounter, Officer Munoz knew Defendant was carrying a concealed handgun in his back waistband. Officer Munoz saw the handgun because Defendant was bending over stocking shelves. The only express element of the crime of unlawfully carrying a deadly weapon, as defined in N.M. Stat. Ann. § 30-7-2(A), that Officer Munoz lacked personal knowledge of bore upon the handgun’s condition. Was the gun loaded or unloaded? See N.M. Stat. Ann. § 30-7-2(B) (carrying an unloaded firearm does not violate § 30-7-2(A)). But Officer Munoz did not have to be certain the handgun was loaded to justify Defendant’s seizure; he only had to reasonably suspect the gun was loaded. See Terry, 392 U.S. at 27. “Probable cause does not require the same type of specific evidence of each element of the offense as would be needed to support a conviction.” Adams v. Williams, 407 U.S. 143, 149, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972). Necessarily then, neither does the less demanding standard of reasonable suspicion require such evidence. A prudent officer under the circumstances confronting Officer Munoz could reasonably suspect Defendant’s handgun was loaded rather than waiting to find out, thus providing the officer all the suspicion he needed to seize Defendant based on a violation of § 30-7-2(A). One of the basic rules of gun safety promulgated worldwide is to “[a]ssume every gun to be loaded . . . and treat it accordingly.” Int’l Hunter Educ. Ass’n, Firearm Safety: Basic Safety Rules, homestudy.ihea.com/firearmssafety/01actt.htm (visited December 12, 2013). Moreover, that Defendant’s handgun was probably loaded is simply a “common sense conclusion[] about human behavior” that Officer Munoz reasonably could draw from the fact Defendant sought to conceal the gun on his person. Cortez, 449 U.S. at 418. (Defendant has never suggested he was openly carrying the handgun). The principal purpose of carrying a concealed handgun is to assail another or defend oneself. An unloaded firearm serves neither of these purposes well, making the fact that Defendant’s handgun was loaded a distinct possibility. Defendant says that instead of seizing him, Officer Munoz simply should have asked him some questions: [T]he officers would have had a sufficient basis to enter the store and engage [Defendant] in an inquiry as to whether he had permission or a permit for the gun he was carrying. Had [he] either refused to produce a valid permit or admitted to wrongdoing, the officers at that point might have had reasonable suspicion to detain him to investigate the situation further. But in this case, the officers exceeded their authority under the law and seized [his] weapon with[out] a reasonable suspicion that he was engaging in criminal activity and without an articulable basis to believe he was dangerous in any way. Def’s Op. Br. at 34. (internal citation omitted). We disagree. Although Officer Munoz could have sought to engage Defendant in a consensual encounter, the law did not require him to do so—and for good reason. Given the confined space in which the parties found themselves at the outset of their encounter, Officer Munoz exercised sound judgment in declining to question Defendant before detaining him. Officer Munoz explained, “I didn’t want myself and Officer Miller or [Defendant], all of us, to be in that cramped area in case anything occurred[.]” Tr. vol. 3, at 16. No officer reasonably suspecting criminal activity—as Officer Munoz did here—”should have to ask one question and take the risk that the answer might be a bullet.” Terry, 392 U.S. at 33 (Harlan, J., concurring). “The reasonableness of [an] officer’s decision to stop a suspect does not turn on the availability of less intrusive investigatory techniques.” Sokolow, 490 U.S. at 11. “Such a rule would unduly hamper the police’s ability to make swift, on-the-spot decisions . . . and it would require courts to indulge in unrealistic second-guessing.” Id. (internal quotation marks omitted). What Defendant effectively claims is that the law required Officer Munoz to inquire into the applicability of § 30-7-2(A)’s exceptions before seizing him. Of course, Officer Munoz did not know at the outset of their encounter whether Defendant was “in possession of a valid concealed handgun license.” N.M. Stat. Ann. § 30-7-2(A)(5). Nor did Officer Munoz know whether Defendant was “an owner, lessee, tenant or licensee” of the convenience store. Id. § 30-7-2(A)(1). That New Mexico excepts certain acts or classes of individuals from a law that bans the carrying of a concealed loaded firearm, however, did not negate Officer Munoz’s reasonable suspicion that Defendant’s possession of a concealed handgun was unlawful. See Reid, 448 U.S. at 441 (recognizing that “wholly lawful conduct” may give rise to reasonable suspicion). Neither of these exceptions to § 30-7-2(A)’s prohibition was readily apparent when Officer Munoz seized Defendant. Officer Munoz had no affirmative obligation prior to seizing Defendant—at the risk of harm to himself and others—to inquire of him whether his possession of the handgun fell within the classes excepted by the statute. Cf. Gatlin, 613 F.3d at 378 (“[U]nder Delaware law, carrying a concealed handgun is a crime to which possessing a valid license is an affirmative defense, and an officer can presume a subject’s possession is not lawful until proven otherwise.”). In the end, Defendant grasps at straws. He says the question of whether an officer may conduct an investigative detention based “solely” on the presence of a concealed firearm “is analogous to the question of whether an officer can pull over any motor vehicle he chooses in order to determine whether the driver is properly licensed and in lawful possession of the car.” Def’s Op. Br. at 27. We think not. To be sure, any construction of a motor vehicle statute permitting such random stops, however the statute is worded, would be unconstitutional. In Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979), the Supreme Court held the Fourth Amendment prohibits an officer from stopping a vehicle for the sole purpose of checking the driver’s license and registration, where neither probable cause nor reasonable suspicion exists to believe the motorist is driving the vehicle contrary to the laws governing the operation of motor vehicles. Id. at 650, 663. The Court reasoned: It seems common sense that the percentage of all drivers on the road who are driving without a license is very small and that the number of licensed drivers who will be stopped in order to find one unlicensed operator will be large indeed. The contribution to highway safety made by discretionary stops selected from among drivers generally will therefore be marginal at best. . . . In terms of actually discovering unlicensed drivers or deterring them from driving, the spot check does not appear sufficiently productive to qualify as a reasonable law enforcement practice under the Fourth Amendment. Id. at 659-60. Driving a car, however, is not like carrying a concealed handgun. Driving a vehicle is an open activity; concealing a handgun is a clandestine act. Because by definition an officer cannot see a properly concealed handgun, he cannot randomly stop those individuals carrying such weapon. Officer Munoz responded to a dispatch reporting two employees of the convenience store were showing each other handguns. Once at the store, he witnessed Defendant carrying the concealed weapon only because Defendant was bending over and his shirt was untucked. Moreover, unlike the random stop of a motorist, we may safely assume the contribution to public safety made by the stop of an individual known to be carrying a concealed handgun will hardly be insignificant since “[c]oncealed weapons create an immediate and severe danger to the public.” Terry, 392 U.S. at 31 (Harlan, J., concurring). Randomly stopping a vehicle to check the driver’s license and registration is more comparable to randomly stopping an individual openly carrying a handgun (which incidentally is lawful in New Mexico). The Supreme Court held the former unconstitutional. Whether the latter is constitutionally suspect is a question for another day. But where a police officer in New Mexico has personal knowledge that an individual is carrying a concealed handgun, the officer has reasonable suspicion that a violation of N.M. Stat. Ann. § 30-7-2(A) is occurring absent a readily apparent exception to subsection (A)’s prohibition. Accordingly, Officer Munoz’s initial seizure of Defendant was “justified at its inception” and therefore passes Fourth Amendment scrutiny. Terry, 392 U.S. at 22. V. This brings us to the manner in which Officer Munoz carried out Defendant’s seizure. Recall Officer Munoz pulled the gun from Defendant’s waistband as Defendant was going out the door. Once Defendant promptly acknowledged he did not have a license to carry the handgun, Officer Miller ran the check that reported the handgun stolen. Defendant’s sole argument in this regard is that Officer Munoz unlawfully dispossessed him of his handgun as he exited the convenience store which, in turn, permitted Officer Miller to run a check of the gun. See Adams, 407 U.S. at 145 (analyzing as a Terry search defendant’s contention that the initial seizure of his pistol, upon which the subsequent search rested, was unlawful). “[T]o proceed from a stop to a frisk, the police officer must reasonably suspect that the person stopped is armed and dangerous.” Johnson, 555 U.S. at 326-27. Defendant acknowledges he was armed, but claims Officer Munoz had no reason to believe he was dangerous. We have already observed that a prudent officer could reasonably suspect Defendant’s handgun was loaded. That alone is enough to justify Officer Munoz’s action in removing the handgun from Defendant’s waistband for the protection of himself and others. But even if Defendant’s handgun had not been loaded, the Supreme Court’s decision in McLaughlin v. United States, 476 U.S. 16, 106 S. Ct. 1677, 90 L. Ed. 2d 15 (1986), forecloses his argument that the gun posed no immediate threat to the officers. In McLaughlin, the Court explained an unloaded handgun is a “dangerous weapon:” [A] gun is an article that is typically and characteristically dangerous; the use for which it is manufactured and sold is a dangerous one, and the law reasonably may presume that such an article is always dangerous even though it may not be armed at a particular time or place. Id. at 17. We will not deny an officer making a lawful investigatory stop the ability to protect himself from an armed suspect whose propensities are unknown. See Adams, 407 U.S. at 146. Officer Munoz did no more than was required to retrieve the gun. Officer Munoz was entitled to remove Defendant’s handgun, not to discover evidence of a crime, but to permit him and Officer Miller to pursue their investigation without fear of violence. See id. As the Supreme Court observed in Adams, “[T]he frisk for weapons might be equally necessary and reasonable, whether or not carrying a concealed weapon violated any applicable state law.” Id. Accordingly, Officer Munoz’s act of dispossessing Defendant of his handgun subsequent to his seizure was “reasonably related in scope to the circumstances which justified the interference in the first place.” Terry, 392 U.S. at 20. For the foregoing reasons, the order of the district court denying Defendant’s motion to suppress is—AFFIRMED.
Rather than accept the yellow journalism characterism of the court opinion in Rodriguez, it is preferable to review the actual opinion. Taking the second quote first, I would ask which part of the Second Amendment protects the right of a convicted felon to keep and bear a concealed stolen weapon? It was foremost, almost exclusively, a search and seizure case. That the search/seizure involved a handgun was judicially incidental to the law being considered. I don't see how they fault Gorsuch for failing to file a dissenting opinion. They never outline exactly what opinion they think he should have issued to protect the rights of gunowners from a stop-and-frisk if they happen to be convicted felons. People need to think hard about this. I think most CCW permit holders will grant some leeway here. They don't want convicted felons to think they can carry CCW without a license and will probably be willing to accept an occasional stop-and-frisk against legit CCW holders as the price for stronger enforcement against the criminal element that is the reason they choose to CCW to begin with. If they want to tar Gorsuch, they need to do a lot better than this. Nor do they take any note whatsoever of his many positive merits as a jurist. Gorsuch is as good as Scalia on any issue (assuming he is as pro-life as Scalia) but he is also a skeptic of Chevron doctrine (which Scalia was way too weak on) and he shares Scalia's loathing for any consideration of legislative commentary (as opposed to a plain reading of the text of any law; this being the antithesis of the contortions by Roberts to uphold ObamaCare). Even Kagan praises his legal prose in opinions as lucid, even lyrical. That is very high praise and it is certainly true that Scalia and other famous justices all possessed considerable literary skills and an aptitude for combining them with profound legal thought in writing court opinions. People tend to forget that most legal opinions written by judges are rather horrible to read and a well-written one does have more impact on legal thought and the direction taken by lower courts in subsequent cases. Great writing on the bench from a strong mind does have a peculiar power to influence the entire judiciary. Gorsuch is not perfect. No justice with a record is. But he is surprisingly good on every issue and has a moderate personality, making it harder for the Dems to Bork him.
You seem to have lost your mind. Convicted felons who have served their time/paid their debt to society and been released from prison have the same right to self-defense as any other American,and the Second Amendment applies to ALL Americans. Anything else is un-American.
I believe that violent felons should lose their right to bear arms. Non violent "felons" should have all their rights.
While I do agree, the words are at war with themselves. Either these rights are irrevocably granted by God to all human beings (within American jurisdictions) or they are not. As soon as you predicate them as a "privilege", they are no longer a right. You may have, in various states, the right to own and use a firearm but the right to a concealed firearm is a matter of licensing in order to screen out known violent criminal elements. Words make things so messy. : ) I would say people lose their right to exercise their Second Amendment rights sovereignly if they demonstrate in a proper court procedure (like conviction in a jury trial) that they are themselves the very bandits and lawless elements that God granted human beings the right to defend themselves against. So, in this sense, the Second Amendment is not a form of suicide pact. We are not required to arm the bandit or the murderer because we want citizens to be able to exercise their god-given rights to defend themselves and their property from those same bandits and murderers. There is a kind of impossible standard of purity that some adopt toward the Second Amendment that makes it self-contradictory, for instance, by viewing violent felons as having the same exact rights to self-defense (and powerful weapons) as any other citizen. I don't agree with this view.
Very well stated.
#20. To: A K A Stone, nolu chan, sneakypete (#18)
I'm no lawyer but it seems to me that when we start to postulate the Second Amendment as though it is divided against itself (against its very purpose), then we have lost our rudder in legal thought. The Founders did not create the Second Amendment to ensure that bandits and murderers have the right to defend themselves against law enforcement. What they did intend was to arm citizens (who lacked formal police forces in the colonial era) against those bandits and murderers and to further arm the citizenry to overthrow tyrants if/when they arose to threaten the liberties of the citizens. In addition, the practice of the era was to rely on a citizen militia against any attempts by the British/French/Spanish empires to threaten any citizens of the Republic. Of these things, we can be certain. We may argue over the Founders' precise purpose(s) in writing the Second but we can know with certainty that they were not trying to arm known criminal elements (i.e. convicted felons) with powerful weapons. To me, that is a first principle to apply in such cases in the courts. Any decision reached on the Second must recognize that fundamental fact of history.
Top • Page Up • Full Thread • Page Down • Bottom/Latest On the other hand, there is reason for pause with Judge Gorsuch's record. Judge Gorsuch joined in one opinion, United States v. Rodriguez, 739 F.3d 481 (11th Cir. 2013), which causes us to have some concern about his understanding of the relationship between the government and an armed citizenry. To be fair, Judge Gorsuch did not write the Rodriguez opinion – his colleague, Judge Bobby Baldock, was the author. Nevertheless, Judge Gorsuch joined the opinion. He could have filed a principled dissenting opinion, or even a concurring opinion agreeing only in the judgment.
To be sure, Rodriguez did not raise a Second Amendment claim before the court, and the court cited various Fourth Amendment cases to justify its bad decision.
US v. Rodriguez, 739 F.3d 481 (10th Ct. App. 2013)
Date: December 31, 2013
Defendant: Rodriguez
#5. To: nolu chan (#1)
To be sure, Rodriguez did not raise a Second Amendment claim before the court, and the court cited various Fourth Amendment cases to justify its bad decision.
#10. To: Tooconservative (#5)
I think most CCW permit holders will grant some leeway here. They don't want convicted felons to think they can carry CCW without a license and will probably be willing to accept an occasional stop-and-frisk against legit CCW holders as the price for stronger enforcement against the criminal element that is the reason they choose to CCW to begin with.
#12. To: sneakypete (#10)
#16. To: A K A Stone, GrandIsland, hondo68, sneakypete (#12)
I believe that violent felons should lose their right to bear arms. Non violent "felons" should have all their rights.
#18. To: Tooconservative (#16)
I would say people lose their right to exercise their Second Amendment rights sovereignly if they demonstrate in a proper court procedure (like conviction in a jury trial) that they are themselves the very bandits and lawless elements that God granted human beings the right to defend themselves against.
Replies to Comment # 18. Very well stated.
End Trace Mode for Comment # 18.
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