pipoman
pipoman's JournalNo, the ban was making it's way to SCOTUS
this pre-dated Heller and McDonald so lower courts were ruling blind and politically and probably ruled to push cases to SCOTUS for precedent. The SCOTUS standard is very simple. If a weapon is "in common use for lawful purposes" it cannot be singled out and restricted...around 100 million in private hands with competitive shooting competitions every weekend from coast to coast satisfies that requirement.
Why do you suppose a Democratic Senate and Congress failed to renew the ban?
No, every term without exception in every law is unambiguously defined for the purposes of the law....there are few "common definitions" in law when it comes to terms as opposed to single words. There is no definition of "assault weapon" that isn't inclusive of common 1950's hunting rifles even if modern rifles were not already so prolific in society.
In 2004 there were cases getting close to SCOTUS which were going to set irreversible precedent. Those who supported the AWB did not renew the ban because of the almost certain loss. Which is also why GWShrub happily repeated that he would sign an assault weapons ban renewal and nary Washington repug objected to the newly elected president bush agreeing to sign the extension.
The reason Dems and gun control decided not to renew was to make another run at an AWB at a later date...maybe now...without prohibitive precedent could find a solution or at leaat another sunset law..
The issue remains exactly what we saw in CA just now. CA has the strongest assault weapons law in the US, yet the guns used in SB were CA legal. They are legal because a law which would make them illegal would also make illegal grandpa's 1940's hunting rifle...hundred millions....
"In common use for lawful purposes" is the standard set by SCOTUS as the line between guns which can be heavily restricted and those which are constitutionally protected.."sawn off shotgun" vs. Standard barrel shotgun USA v. Miller 1934 (iirc).
There was also the issue of restriction on enumerated civil rights must show demonstrable benefit to society and there were no supporting statistics for the 10 year ban indicating any impact on society good or bad.
Why Lie When The Truth Is Better? The Background Check Lie.
Once again in the wake of a multiple victim tragedy politicians are clamoring to introduce a bill requiring "universal background checks". We once again have presidential candidates standing on high stating they will heroically pass universal background checks.
Just so we all understand, UBC used to be "gun show loophole"...how many times have you heard a politician promise to "close the gun show loophole"? Both terms define the only exemption in the Brady law requiring background checks on all firearms purchases. The only sales exempted from the National Instant Check System (NICS ) are sales between two people who live in the same state and the seller is not in the business of selling firearms. This exemption has always been a part of the federal mandate for firearms background checks.
Why? Why would this one very specific type of sale be exempted? The NRA?
Well, I suppose the NRA, but only to the extent that they can state they will challenge a UBC bill/law. They have likely been threatening they would challenge since the early 1990's when the federal background check was being written. Any threat of action has to be credible..in fact probable..or it can't sustain, the bluff will be called. In the absence of the NRA someone would atill challenge on the same grounds and it would still be overturned.
So why were private sales exempted? The one and only reason is because if the "commerce clause" which states,
Intrastate, or domestic, commerce is trade that occurs solely within the geographic borders of one state. As it does not move across state lines, intrastate commerce is subject to the exclusive control of the state.
http://legal-dictionary.thefreedictionary.com/Commerce+Clause
This is very simple. There will be no UBC mandate at the federal level...it cannot happen now for exactly the same reason it was originally exempted, and for the same reason ubc bills don't make it out of committee...because it would be overturned pretty quickly.
Why do politicians not simply tell the truth and look for solutions which are actually possible? Does Hillary and Bernie really not get this? Do they really think this will happen? I say they are posturing and pretending for the outraged and it allows them to strike the gun lobby of the Republican party.
Now I said the truth is better than the lie. By honestly stating that UBC must be a state imposed restriction and promising to fund and enable NICS for private sales the first step toward getting UBCs would be complete. As it is Colorado may have to suspend or repeal their requirement because there is no statutory access to NICS, and Colorado doesn't have a system in place of their own.
I believe nobody wants UBCs (except the public who actually try to believe their politicians)..especially big gun control who have used "gun show loophole" and "ubc" as a fund raising tool since their earliest days and cant financially survive after solving the issue...just a theory...
Bottom line is that if you want UBCs you should be working on your state. And....don't let your politicians play you. I would like to ask our candidates why they refuse to tell the truth about this....until they do it will be more of the same..nothing, private sales will remain exempted and we will have another 20 years of the same.
I like debates to be moderated by either
Apolitical or completely unknown moderators. Debates should have not a single solitary thing to do with the moderator....it should only be about the candidates.
Further this 20 year + era of softergentler debates where the candidates are allowed to vet the questions results in something other than a debate...
Yes
The federal form (4472) that is filled requires a signature under penalty of perjury that the person isn't a felon, drug addict, domestic abuser, or been involuntarily committed. A denial usually means that the person is likely to be one of these things.
Licenses and insurance are constitutionally problematic. License are a litmus test for enumerated civil rights/liberties and would be struck down by a unanimous SCOTUS before the ink dried. Insurance is means testing and/or similar to a poll tax for exercise of a civil right/liberty and would be struck down by a unanimous SCOTUS decision before the ink dried.
This illustrates the frustration felt by many on this issue. Insurance and licensing invariably come up (along with about 20 other constitutionally impossible ideas) every time a tragedy occurs. It is usually brought up by the same people who are 'Johnny on the spot' to appeal to the logic of sorrowful, shocked, disgusted, wounded common people who are caught in a moment and who haven't been either personally or professionally involved in the issue of gun control for 20 years (as I have).
As I said and illustrated before there are definitely things which could be done to improve our system. Just that the political activists on both sides don't want to solve the problem, they want to keep it as a fundraising opportunity so their paycheck doesn't go away.
Another example...universal background checks, something constantly pimped by gun control...something supported in principle by a lot of the public. It is and always will be impossible to pass and keep federally mandated universal background checks. As it stands right now in the US there is only 1 very specific kind of firearms purchase which doesn't require a license of some sort or a background check. This is a exchange between two residents of the same state and the seller is not in the business of selling firearms, rather selling a personal gun...a piece of legal to possess and own personal property. The federal government has no jurisdiction..in fact enumerated revocation of the authority to regulate intrastate transactions in "the commerce clause". There will never be a federally mandated universal background check for this very reason.
What does big gun control (lawyers..who all know that ubc's are impossible) do every time in the wake of a tragedy like this? They cry and wail for the impossible federal mandate. They ask for donations to battle in Washington for this oh-so-needed legislation...people angry and grieving send their money in and big gun control lives to raise more money on the next tragedy.
The solution nobody wants to hear...NICS currently is not available for these private sales. A simple change to the conditions of the license for ffl dealers requiring them to do NICS checks for any private sale in a timely fashion for a nominal fee...like $20. Simple. At the same time a bill to eliminate all civil or criminal liability if a gun is transferred using the NICS system and is later used in a crime...perhaps even increasing the possibility of civil or criminal liability for transfers without using the system. Then public awareness campaigns "Use NICS and sleep well tonight!" Etc. Frankly if big gun control were really all that interested in UBC'S they would be setting up kiosks at gun shows doing free private checks...but alas....
I own a couple of family guns and a pistol..I don't carry and usually won't even now that my state has permitless concealed carry. For me, I am a civil libertarian, I believe in a very liberal interpretation of all civil liberties and rights.
I've been in LA, It doesn't cost $500k to live within 30 miles
Of any major city in the US. This is the actual "privilege" that exists...I know people who will swear they need to buy new cars, a bedroom for each of their sub 5 year old kids, eat out 3 times a week and splurge on Saturday for some place nice, move into a turnkey home, it is lunacy that banking regs used to keep from happening.
I had a real estate license in 1985 and sold homes for several years. To qualify for a first time mortgage one had to have 20% down, the 20% had to be earned income or in your bank account for at least a year. Your total indebtedness couldn't exceed 35% including the mortgage.Minimum 2 years job time. People had to save and pay down their debt. Their debt/income may support a $1000 payment which a allow $100k mortgage, but if they couldn't come up with $20 plus 10k closing costs (which could be borrowed but not through collateralization of the real estate) you would buy a $50k home. ..paint the bedrooms, put on a new faucet and toilet, refinish the kitchen cabinets, tidy up the lawn, plant some trees, clean out the gutters, get the ac charged, paint the trim, recalk the windows, and sell it in 5 years for $85k leaving you with $45k equity to buy the $100k fixer upper (2nd home) for another 5 years and scoop the equity allowing for the dream house. It took work. It is what kept the housing market safe for everyone's investment.
Before the bust we had first timers 2 months out of RN school buying 'the home we've always dreamed of' consuming 50% of their income for the interest only for 5 years, 40 year mortgage putting no money down and financing 120% of the purchase price so they can swing by IKEA and furnish the entire new house. Then they pulled up in their driveway in their 2 year leased BMW. ...oh they were so proud. ...now they are the Cabreas'...
both parties shared this one...the other piece is the repubs reducing bank solvency requirements exacerbating the problem.
What reform of police policy/authority could be demanded and accomplished?
The reality is that police/law enforcement are needed and here to stay, few people would deny this. With that comes a necessity for acceptable policy and limitations of authority which falls outside of constitutional limitations (or the interpretations that have formed precedent). For most of the 20th century there has been a public campaign to indoctrinate children to trust police, to portray police as friends, and to empower them from the grassroots...all good things as long as police actually are friends of the public, trustworthy, and not constantly pushing the limitations of the authority or will of the public. Where we find ourselves now is in a place of overreaching authority in the name of safety, abuse of authority, actions contrary to the will of the public, and a reputation for lying and corruption with an expectation to receive the benefit of the doubt in every scenario. All of this is further exacerbated by the labor union contracts which have gone beyond protection against unfair labor practices to protection of corruption and publicly unacceptable police policies and practices.
In the wake of perception of sanctioned abuse of power and authority all kinds of demands and proclamations have been thrown around. Many....perhaps most of these demands aren't congruent with the charge to effectively police our communities. Some demands would eliminate protections from prosecution stemming from human error and/or immediate response.
What can't be done. ..
We cannot remove immunities given police for the result of human error. Since all police are human, errors will occur. Without some protection police officers will become impossible to find, nobody is willing to allow their future and their livelihood to hinge on the reality of human error.
We cannot place unrealistic racial quotas on hiring. If qualified candidates cannot be found or aren't interested in police jobs, we must hire those willing and qualified.
What we can do through the legislative process and public demands...
360 degree cameras with sound on all police officers and police vehicles. This seems like a nobrainer considering the availability of tiny camera and storage technology. Police are adverse to this because they really don't want to be second guessed and they believe the footage may lead to acquittal on technicalities.
Demanding that all police policy be public. Police policy, pparticularly local and state policy, has long been a big secret. Defense attorneys have been issuing subpoenas for production of policy and procedure manuals for generations. These requests have been fought and ignored in favor of release of only those parts of policies procedures manuals germane to the case at hand then often heavily redacted.
Eliminating asset forfeiture resulting in enrichment of the department or officer involved. A requirement for a human criminal conviction (as opposed to the practice of charging the assets) before assets can be liquidated and not returned. Then requiring legitimately seized assets to enrich some other government agency unrelated to law enforcement. ..schools, infrastructure, public health services, etc. ..
Eliminating bulk data collection by law enforcement.
Eliminating traffic cameras used for issuing traffic violation citations. This is overwhelmingly despised by the public and protestations have been largely ignored by police.
Revision/review of use of force policy
Eliminate authority to use military vehicles, weapons and tactics against the public.
All of these tactics and policies have been challenged and upheld as constitutional. This doesn't mean they can't be legislated out of existence.
I am sure there are other ideas which would be effective and feasible to improve relations and reduce abuse of authority. Change is never easy, if we can eliminate unrealistic demands and concentrate on the possible, change can be forced..the best place to start is in our cities and states.
Any other ideas for reform?
is law enforcement change possible?
This issue has two sides. First, where does the necessity for protection from civil and criminal prosecution for unfortunate human error, necessary snap decision making in extremely high stress situations, allowable self defense and defense of the public end, and criminal/civil culpability for their actions kick in?
Secondly, what other accepted practices that have evolved over the years needs to be revisited?
As stated, some protection for public employees is essential in maintaining public services. Since we're all human, and with that comes inevitable errors, how can any of us deny others, who's human error could result in tragedy while performing on our behalf, some measure against ruin when it occurs? What smart, productive person would accept such personal risk for $50k and a pension (that they most likely would never last to obtain) without some protection?
Do policies like "stop and frisk", "asset forfeiture", questioning tactics for minors, plea bargain corruptions, stoplight cameras, racial profiling, militay equipment, zero tolerance/mandatory sentencing, excessive force (always justified by the 95% overused exclamation "officer safety" even when it's ridiculous); lend themselves to overall distrust and even hatred of public servants?
"Community policing" is a joke once practiced and beneficial. ..On the other hand, there are a lot of individual cops who are stellar public servants.
As it is right now, and frankly forever, cases like Zimmerman and Wilson could never be convicted for no other reason than "reasonable doubt". Nobody who is impartial could say either are guilty "beyond a reasonable doubt" given our laws of self defense and the evidence presented each jury.
The "reasonable doubt" standard has its own inherent issues. The most public frustration comes when someone overwhelmingly believed to be guilty, is acquitted. The reality is that the standard is in place based on the idea that some guilty must go free to minimize the number of innocent people wrongly convicted...a trade off. ..
Reasonable doubt isn't going anywhere, it's a constitutional standard which has no real opposition. All of the policies mentioned above however are just that...policies. Policy and accepted practice can be changed without a constitutional battle.
Many of the demands I have been hearing surrounding Wilson and Zimmerman would require constitutional amendment to remedy at the expense of more innocent conviction, or prosecution/conviction of unfortunate human error. Would stripping (or reining in) our servants of the policies above, which would actually be possible in a reasonable amount of time, quiet the angry?
It seems all I hear is noise, no solutions (which are even remotely possible)...
Gottcha
Just a little more to ponder. ..You seem to believe that the NRA is the mouthpiece of the "firearms industry". Why...why would the "firearms industry" not want the same level of regulation applied to every gun sold, as is required for every single gun they sell? You do know that every single new firearm sold in any state in the US requires a background check or equivalent, no? That there is only one very specific kind of sale exempted? That is a sale between 2 parties living in the same state who are neither one in the firearms business. That's it. Every single other purchase requires a check.
Why do you suppose those sales were exempted in 1994 in the first place? Why hasn't a single solitary bill ever emerged a judiciary committee regardless who chairs the committee? Since 1994! It is so simple. They can't find a way around the commerce clause.
You have been lied to. Why wouldn't Brady just make public the reason? Because their identity is built around "the gun show loophole". They know states can require bg checks, they know 80% of the public agrees (myself included). There are several states that would be very easily lobbied into it. The one hold up is that federal firearms licensees aren't required in their regs to provide bg checks for private sales. A simple regulatory change with absolutely no constitutional issue could be done via executive order tomorrow. With this states could require bg checks on private sales without having to spend millions reinventing the wheel (as those states which already do require ubc have had to do.
I don't recall ever being on any NRA website, am not and have not been a member, am a civil liberation Democrat and have been here a long time.
There are literally thousands of regulations on guns and the 2nd amendment
Some have been challenged and the decisions of the challenges have given us "case law". "Case law" defines boundaries of constitutionality of laws (among other things). Case law is occasionally reversed or adjusted by more case law. Roe v. Wade is an example of case law, as is every case citing used in any justification of action before a court.
There is case law defining the limits of regulation of the 2nd amendment and every other amendment. One of the examples of case law applying to the 2nd found in USA v. Miller in 1939 was a limit/distinction used to determine if a specific firearm can be under more regulation than others firearms. In this case the firearm in question was a sawn off shotgun. The court decided a sawn off shotgun could have more regulation than a regular shotgun because sawn off shotguns were not "in common use for lawful purposes". This case law has been referenced in many cases since 1939 establishing even more case law. Without SCOTUS redefining the limitations in some other case, effectively overturning Miller, this will be the standard for additional regulation on specific firearms.
Now ask yourself why Bush said he would reauthorize the 1994 assault weapons ban seemingly against the interests of his of his obligations? Why would a Democratically controlled congress fail to reauthorize the assault weapons ban? There were challenges coming down the pike to the assault weapons ban. The challenges mostly based on their statistical evidence that the weapons affected by the ban were "in common use for lawful purposes". Bush allies believed that most weapons affected by the assault weapons ban could be shown to be "in common use for lawful purposes", so did democrats in Congress and the prospect of the ban being overturned could make future legislation more difficult so they chose not to reauthorize.
The point is that there are damned few new gun control ideas that wouldn't require a very rare SCOTUS case law reversal to save. States otoh have more latitude for regulation. Big gun control wastes money lobbying for constitutionally impossible federal legislation. There is a reason the NRA spends so much time and money in the states...
I disagree
I would absolutely agree if all inmates were just trying to serve their time. This isn't the case. There are many who live to victimize others and resume victimizing at any opportunity. There are individuals and groups within the prison system who run extensive criminal enterprises spanning multiple facilities. Drugs, prostitution, gambling, murder for hire, and every other vice imaginable. Again, not localized. To the vast majority of the population, what happens in the prison system is both unbelievable and unimaginable.
Instead of some blanket determination of no more solitary. ..I'm not sure why this is an issue and institutionalized violence isn't the focus.
Many, especially first time offenders, go in with a desire to peacefully serve their time and work toward release. Many would accept educational opportunities and job skill training. When they get there they are slammed into a population ran by victimizers. They have to either allow victimizing or join a gang for protection. Once in a gang they are labeled "disruptive group members" by the system resulting in extentions of sentences, and a lifetime commitment to the gang. Guards fear for their own safety and that of their families resulting in enabling of the gangs. In the federal system there are people, government employees who are charged with extending people's sentences. They do this by putting people in impossible situations, then punishing them for reacting.
The system is severely broken and solitary is the tiniest tip of the iceberg.
The more effective reform would be to have facilities devoted to education and training for all first time offenders where victimization isn't tolerated. And separate facilities for victimizers. If we polled the population about what they would fear most about going to prison, the number one answer by far would be victimization by other inmates. That is sad and unbelievably corrupt. It is no wonder that recidivism is as high as it is. ..solitary adds to that but isn't the largest problem by far.
I spent many years as a licensed defense investigator, have interviewed many inmates and visited many prisons both state and federal. Prison reform is long overdue, concentration on the tiniest issue to the exclusion of the far bigger issues will not begin to fix the problems...imho..
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