Changing the definition of a "prohibited person"?

[megatronrules]

I've read in the past that the Anti-gunners have been trying to expand the definition,of prohibited person. They want this to include people convicted of certain lesser felonies and misdemeanors,to prohibit these people from lawful firearms ownership.

I got thinking do you think that they could ever try to,or succeed in having this expanded to include people with arrest records where no criminal charges or conviction has occurred? Would this not violate due process by denying rights to people who have not been found or adjudicated guilty of a crime? I'm just curious about this is all and would like your opinions on this.

 

[leadcounsel]

Yep- if you can't make guns illegal, just limit the number of people who can own. The more 'households' that don't have guns, the more kids that grow up with no positive gun influences, etc. it's a cycle to eliminate gun ownership.

The following folks cannot own guns:
Felons/ex convicts
Drug users (even marijuana)
Adjudicated mentally insane (include PTSD, short stays in mental wards, etc)
Misdemeanor conviction for domestic violence (likely to be expanded to include ANY assault)
Restraining ordered individuals

PRETTY SCARY considering many of these are very low threshold events.... often involving an allegation and anti-gun judge or psychologist.

 

[megatronrules]

But what about people who have an arrest on their record,where no conviction occurred? Or the per has had said record expunged?

It is scary that all woman has to do is accuse you of being violent,and presto no more guns for you,without a ton of legal fees and court appearances to clear your name. I think this is ridiculous to say the least.

 

[leadcounsel]

It is scary that all woman has to do is accuse you of being violent,and presto no more guns for you,without a ton of legal fees and court appearances to clear your name. I think this is ridiculous to say the least.

VERY scary.

 

[CoRoMo]

...accuse you of being violent,and presto no more guns for you...

I have personal experience here. Many states will pursue domestic violence charges, even when the accusing partner drops the charges. If she called the cops, files a false report, gets hubby arrested, but later realizes how destructive that false accusation is going to be, asks that the charges be dropped, she will be told, "Yeah, we hear that all the time from battered women like you. The state will pursue a conviction from here.".

I have a friend who "took the plea to make it all go away". He won't ever be able to own or touch a gun, can't ever go hunting, and if an armed attacker ever chooses him/his family to be the victim, they will pretty much be at the mercy of the attacker.

 

[Zoogster]

Yes they have been trying.

The most recent partially successful result happened a few years ago.

It was in relation to the NICS improvement Amendments Act of 2007 (signed into law January 2008.) This was also called the Veterans Disarmament Act by many opponents.
After all the changes and rewriting it was not so much what was in the legislation that had the biggest impact but the creation of a national level database on mental health and similar previously private medical records.
Many states have volunteered such records to the Federal Government to help in the creation of such a computerized database.
So a federal database has been and is being created of these records to much more easily catch or deny individuals that were not denied in the past when they were private or state only records.


Much of psychology and psychiatry is highly subjective. This means the exact same person that would be diagnosed with X by expert A would not have been diagnosed it with it by expert B.
Many of the exact symptoms of severe diagnosis are symptoms displayed by your average person to lesser degrees. So it becomes the degree, frequency or other subjective criteria that determines the diagnosis. Giving the professional a lot of subjective freedom to determine if someone is perfectly 'normal', or suffering from something that can result in involuntary commitment, treatment, or loss of rights at some point during the present or future.

What this means is a couple that goes to marriage counseling, or family counseling, or the individual that goes and unloads their concerns to a shrink on a regular basis, could be building a record that can be used against them. A record that can be interpreted as various symptoms at some point in the future, and used to reduce the control they have in or over their own life, such as the ability to own firearms.

A more direct use of such power would be say a San Francisco judge that orders psychological reviews of individuals who appears in the court room to be done by Dr. Courtfriend.
Dr. Courtfriend receiving most of their income through work with the justice system delivers. 'Coincidentally' Dr. Courtfriend has a much higher diagnosis rate than would be typical in the profession.
Meaning a psychological evaluation by Dr. Courtfriend is far more likely to result in diagnosis that give the court much more power over the individual, and allow the types of things that remove firearm rights for life.

Clearly the San Francisco (or other typical anti-gun location, or anti judge) judge who finds out someone appearing before them has firearms or a firearm collection can use such an option to reduce the prevalence of firearms in homes.
It does not even have to happen all at once. A diagnosis one month or year can result in the ability to much more easily give someone an involuntary commitment at a future date (which would strip firearm rights for life.)
A diagnosis, and some court ordered treatment would create a record of mental illness, and an involuntary commitment at any time in the future would be an easy option for the judicial system.

A typical divorce, or criminal allegations, and other court procedures could easily bring otherwise good people into such a web subjecting them to discretionary loss of firearm rights without ever needing to convict them of an actual crime that would in of itself actually deny the person the right to firearms.

 

[megatronrules]

There a lot of good points here that I didn't think of guys. Do you think one day anyone with an arrest record whether they are convicted or even charged later would face a no guns for life rule? I mean isn't it a criminal conviction,diagnosis of mental illness or being committed to a mental ward involuntarily and being the subject of a restraining order,the only ways to loose gun rights?

the reason I ask is I was arrested once and no charges were filed by the state,I was innocent and my arrest record was expunged. I can pass a nics check for a firearms and have a carry permit as well. Is it possible some new legislation down the road could ban me from firearm ownership,because I have an arrest on my record? Or would this be unconstitutional?

 

[Zoogster]

the reason I ask is I was arrested once and no charges were filed by the state,I was innocent and my arrest record was expunged. I can pass a nics check for a firearms and have a carry permit as well. Is it possible some new legislation down the road could ban me from firearm ownership,because I have an arrest on my record?

No.
What it can and possibly will do is cause any LEO contacts you have to consider that arrest because it will still be on record when they pull up your name.
I assume it is an arrest that would have removed your right to firearms had you been found guilty which is why it concerns you, so let me give examples:

This can cause them to be less inclined to give you the benefit of the doubt in discretionary situations. Or situations where it is one person's word against another.
So for example some guy attacks you, and you defend yourself. You say what you did was self defense, but you have a prior arrest for a fight or weapon violations or something else that says violent or dangerous to police, etc (even though not found guilty.)
The police are not sure what happened in the latest situation having a few possible scenarios in their heads, but seeing that arrest record side with one less in your favor and write their report accordingly.
That can easily lead to a conviction that may not have resulted if they had not written the report in such a manner.
That conviction may then remove your firearm rights.
Domestic violence would be another example. An arrest for it at one time may result in officers believing an accusation in the future, even without any prior conviction. That could result in a report that is slanted more against you being written that results in conviction and loss of rights. Meaning if you have one wife or girlfriend that tries to falsely accuse you it lends credibility to future false accusations when the police or courts see prior arrests. Though they are unlikely to mention the prior arrest record, they will certainly have it in their minds when dealing with you after having looked you up.
What this means is even if innocent of what you were arrested for previously, a list of arrests can very easily count against you in the future damaging your benefit of the doubt or credibility in the eyes of those who can see those arrests in a computer.

 

[megatronrules]

Zoogster but what about the arrest being expunged? I was told only in depth background checks will turn it up,and that it is removed from the nics database and reclassified,meaning a cursory look up even by LE won't find my record,is this not correct?

 

[HOME DEPOT GEORGE]

I've been thru the expungement process as well as getting an old restraining order dropped and this was in NJ. Trust me it can be done and is relatively painless. I was fortunate with the restraining order because I live in FL now and haven't had any contact with the other party in 12 years and she didn't bother to show up for the hearing. The expungement cost 1200 dollars and I never had to leave FL and the restraining order was 1500 dollars. You have to do your research and make sure you get a good family lawyer as a lot of NJ lawyers wont touch a restraining order case. Now I have my ccw as well as many guns with no trouble on the checks.

 

[mgkdrgn]

"They" would also like it to include anybody on the "no fly list", which, can literally be anybody, including (pardon me please, trying to make a point) Jesus Christ, because their name, spelled backwards and phonetically, "sounds like" some -suspected terrorist-. (all you "minute men" and "tea party" people out there ... this means you)

So, it won't be that -they- are a criminal.....

or that their name is exactly the same as someone who IS a criminal ....

but

that their name is something like someone who might be a criminal.

:banghead:

Mean while, the criminals just keep on stealing guns or getting them from their friends/relatives (like 90+% according to the FBI)

 

[ArtP]

I've got a similar question now that the subject has been raised.

I've been arrested once in my 42 years and no charges were filed. As far as crimes go, it was very petty. I'm quite sure in my county any deputy can see that arrest, no matter how much time goes by. Do you think that record of spending the night in the pokey without charges being filed, shows up outside the county it occured in?

 

[DMF]

The following folks cannot own guns:

. . . Adjudicated mentally insane (include PTSD, short stays in mental wards, etc)

Simply not true. A simple diagnosis of PTSD, or a short observation stay in mental hospital, or a voluntary commitment to a mental hospital are NOT prohibiting.

Misdemeanor conviction for domestic violence (likely to be expanded to include ANY assault)

Why would you say likely? I have never seen any proposed legislation in the last 16 years that would expand the Lautenberg amendment.

Restraining ordered individuals

Simply not true, the prohibition for restraining orders only applies to a very specific type of restraining order.

Here is the truth about restraining orders and firearms possession:

"It is illegal for a person to possess a firearm while subject to a court order restraining such person from harassing, stalking, or threatening an intimate partner or the child of an intimate partner or from engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child. The protection order must have been issued following a hearing as to which the defendant had actual notice and an opportunity to participate. The protection order must also include a specific finding that the defendant represents a credible threat to the physical safety of the victim, or must include an explicit prohibition against the use of force that would reasonably be expected to cause injury."

http://www.ovw.usdoj.gov/docs/federal_violence.pdf

So it only applies to restraining orders involving intimate partners or the children of intimate partners, and only when the order is about violence and must have the specific find of a credible threat or a specific prohibition against use of force.

So if your wife gets a restraining order preventing you from draining the joint bank account or disposing of certain property during divorce proceedings that does not create a federal prohibition from firearms possession. If your neighbor gets a restraining order, because he feels threatened by you it does not create a prohibition from firearms possession, unless the neighbor is also an intimate partner of yours.

People need to be honest about this stuff rather than posting rumors, half-truths, and outright lies.

 

[CapnMac]

Uhm, DMF, you might want to go back and re-read Emerson

U.S. v. Emerson, 270 F.3d 203 (5th Cir. 2001), cert. denied, 536 U.S. 122 (2002).

46 F. Supp.2d 598 (N.D. Tex. 1999), rev'd, 270 F.3d 203 (5th Cir. 2001), cert. denied, 536 U.S. 122 (2002).

I will not assert that you are incorrect, only that I disagree on some points.

 

[Ragnar Danneskjold]

"Yeah, we hear that all the time from battered women like you. The state will pursue a conviction from here.".

Not to defend the practice of denying 2A rights of people accused, but in all fairness, a lot of battered women do later retract their very real claims. People in relationships are not logical.

 

[DMF]

Uhm, DMF, you might want to go back and re-read Emerson

U.S. v. Emerson, 270 F.3d 203 (5th Cir. 2001), cert. denied, 536 U.S. 122 (2002).

46 F. Supp.2d 598 (N.D. Tex. 1999), rev'd, 270 F.3d 203 (5th Cir. 2001), cert. denied, 536 U.S. 122 (2002).

I will not assert that you are incorrect, only that I disagree on some points.

YOU might want to re-read Emerson. Nothing in that case conflicts with what I posted.

Here is a link to the test of the entire ruling from the 5th Circuit so you can review it:
http://scholar.google.com/scholar_case?case=14262752073118297274&hl=en&as_sdt=2&as_vis=1&oi=scholarr

 

[danprkr]

Fox news ran a story yesterday morning about the latest 'loop hole' in which people on the terror watch list are buying guns, and some senator is proposing a law to stop them. Of course to be on the watch list you just have to be thought to be worthy of watching. Not convicted of anything. If that makes it through then all they have to do is say all NRA members are on the watch list, or all hunting license purchasers, or all....

Well you get the idea.

Oh, and the nice part, they don't even have to tell you that you're on the watch list, much less why. You just find out when you go to buy a gun. And, as far as I know there's no mechanism for getting off the watch list.

 

[wildbilll]

I saw that piece. It was Lautenberg. He is always looking for ways to subvert your gun rights. He is the one behind the domestic violence law on firearm possesion. I couldn't believe they didn't point that out on the segment. Mr. Gun Grabber.
The idea that your name appears on a watch list can take away your constitutional rights is something that today won't float thanks to Heller.

 

[Art Eatman]

DMF, the federal "Lautenberg Amendment" applies to misdemeanor domestic violence, does it not? And ex post facto, at that.

 

[KBintheSLC]

Yes... eventually, excessive infringements may force us all to become outlaws. Since anti's tend to focus on disarming law-abiding citizens instead of criminals, it may just be easier to be a criminal.

 

[mgkdrgn]

I've got a similar question now that the subject has been raised.

I've been arrested once in my 42 years and no charges were filed. As far as crimes go, it was very petty. I'm quite sure in my county any deputy can see that arrest, no matter how much time goes by. Do you think that record of spending the night in the pokey without charges being filed, shows up outside the county it occured in?

If you are not -convicted- (which would be impossible if no charges were filed) then it is a non-event.

 

[DMF]

Yes, the Lautenberg amendment created the prohibition for persons convicted of misdemeanor DV crimes. However, it most certainly is not ex post facto. We've discussed this before and I would link to some of the previous discussions, but I'm posting from a mobile device & haven't figured out that trick yet.

 

[DMF]

http://thehighroad.org/showthread.php?p=5081842&highlight=Facto#post5081842

This is the best I can do. So hopefully this link actually works.