1+1=2nd Amendment infringment

[TomAiello 26]

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It is no different than arresting someone and taking them into custody prior to their trial. It doesn't deny due process of law.

The main differences:

1) No notification requirement: there is no requirement that you even be told that you are a "terrorist suspect." Obviously, if you were arrested, you'd know about it.

2) No appeal process: There is no way to appeal your status as a "terrorist suspect." If you are arrested, you have defined rights, one of which is a chance to prove your innocence in court.

3) No defined consequences: When you are convicted of a crime, you face a set sentence, which is determined as part of your trial process. Your status as a "suspect" carries with it a yet-to-be-determined set of rights denials, which can expand in the future without you having done anything.


This clearly _does_ deny due process.

-- Tom Aiello

Tom@SnakeRiverBASE.com
SnakeRiverBASE.com

[TomAiello 26]

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I don't see anywhere that someone can appeal their classification as a "suspect". And, since being a "suspect" doesn't mean you ever get a day in court, people could conceivably be on the "suspect" list forever.

That is consistent with the rest of our justice system. The police can suspect me of anything they want, and I can't do anything about it.

Can they deny your Constitutional rights based solely upon their suspicions?

-- Tom Aiello

Tom@SnakeRiverBASE.com
SnakeRiverBASE.com

[jcd11235 0]

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Would you still support the legislation if the AG, who got to determine if you were a "terrorist suspect" was a Republican appointed by George Obushma, instead of a Democrat appointed by Barack Obushma?

Since the proposed legislation offers due process and places the burden of proof on the government, not the individual, it doesn't matter to me who appointed the AG (w/r/t this legislation).

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[jcd11235 0]

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It is no different than arresting someone and taking them into custody prior to their trial. It doesn't deny due process of law.

The main differences:

1) No notification requirement: there is no requirement that you even be told that you are a "terrorist suspect." Obviously, if you were arrested, you'd know about it.

Which is no different from being a suspect of any other crime. If the police suspect me of murder, they are not obligated to inform me that I'm a suspect.

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2) No appeal process: There is no way to appeal your status as a "terrorist suspect." If you are arrested, you have defined rights, one of which is a chance to prove your innocence in court.

If any action is taken due to your your status as a suspect, then you do, indeed, have an opportunity to appeal the status, which you would already know if you would simply read the proposed legislation, which spells that fact out rather nicely.

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3) No defined consequences: When you are convicted of a crime, you face a set sentence, which is determined as part of your trial process. Your status as a "suspect" carries with it a yet-to-be-determined set of rights denials, which can expand in the future without you having done anything.


This clearly _does_ deny due process.

If you actually read the proposed legislation, you will see that there is no merit to your claim of no due process. If your rights are denied based on your status as a terrorist suspect, the bill provides individuals with the means to appeal, i.e. due process.

I know reading dry proposed legislation isn't as fun as throwing out unwarranted claims of having your rights violated by those scary Democrats in the federal government, but it might help you to refrain from making such blatantly incorrect claims.

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[jcd11235 0]

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Can they deny your Constitutional rights based solely upon their suspicions?

Nope. You're entitled to due process, just like you are entitled under the proposed legislation.

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[rushmc 23]

He has got to be just trolling.......

"America will never be destroyed from the outside,
if we falter and lose our freedoms,
it will be because we destroyed ourselves."
Abraham Lincoln

[lawrocket 3]

Here's how it has worked throughout history.

Congress passes a law. The law can be obviously unconstitutional. It doesn't matter. They want the damned law and they'll pass it.

The law takes effect and is enforced. For example, let's say this law is passed. It begins to be enforced. Upon enforcement, a person who has suffered harm from the law must sue to have the law adjudged unconstitutional - which takes years.

5 years from now a court overturns the law. Congress says, "sorry."

Congress then passes a new law that is similar. Repeat ad infinitum.

See - that's what the SCOTUS and federal courts do - determine whether statutes are constitutional. They often find that they are not.

I think Congress is perfectly willing to pass unconstitutional laws just to make a statement. Presidents really like them. Take a look at the asskickings FDR suffered until he and his Congress worked on packing the court to ensure that the SCOTUS quit holding him back. Take a look at the stuff that Truman did.

I don't doubt for a second that Congress would try to pass a bill like this - and wouldn't mind actually doing it.

My wife is hotter than your wife.

[lawrocket 3]

Actually - there is a significant difference between arresting someone and prevention of gun ownership on the basis of "suspect" status.

There must be probable cause to arrest someone of a crime. Even then, the crime must be proven beyond a reasonable doubt or the person goes freeand has all rights restored.

This gun law requires no such standard. A close parallel would be that a person who is suspected of being a member of one of the aforementioned groups may be precluded from publishing written commentary on political issues using any medium that is involved in interstate commerce.

This means he is precluded from offering his opinion in anything other than private conversation. Indeed - he may be speaking as part of a terrorist plot.

I believe that the Second Amendment (and all Amendments not superseded) stand in equal dignity with each other. Any restriction on the right to b ear arms should be met with the restrictions on a right to free speech.

Lefties don't think the First, Second or Tenth Amendments should be allowed to exist as written and seek to limit their availability for use by thw citizenry.

Righties don't think the First or 4th Amendments shoul be allowed to exist as written and seek to limit their availability for use by the citizens.

I think they all should exist as written and be fully enforced in their words and spirit.

My wife is hotter than your wife.

[Andy9o8 3]

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It is no different than arresting someone and taking them into custody prior to their trial. It doesn't deny due process of law.

The main differences:

1) No notification requirement: there is no requirement that you even be told that you are a "terrorist suspect." Obviously, if you were arrested, you'd know about it.

2) No appeal process: There is no way to appeal your status as a "terrorist suspect." If you are arrested, you have defined rights, one of which is a chance to prove your innocence in court.

3) No defined consequences: When you are convicted of a crime, you face a set sentence, which is determined as part of your trial process. Your status as a "suspect" carries with it a yet-to-be-determined set of rights denials, which can expand in the future without you having done anything.

This clearly _does_ deny due process.

Denial of due process is always a serious issue.
I understand why you think there is no appeal process to being put on the "suspect" list, but I don't think that is the case. It's a governmental administrative action; and the general rule is that those are always appealable. The first step is to exhaust administrative appeals; and once that's done, you can appeal to the courts. If you're correct that there's no appellate process at the administrative level (and I haven't researched whether that presumption is correct in this instance, so I really don't know), then that means that aggreived parties (people on the "suspect" list) would be entitled to immediately appeal that administrative action directly to the courts.

[lawrocket 3]

A note about the remedies:

The remedy is the sort of thing that makes defense nearly impossible. The burden of proof is indeed on the government. The government, however, is entitled to introduce "summaries" of the evidence as evidence in support of the denial. There are a couple of different terms for this: (1) hearsay (2) hearsay upon hearsay; (3) argument; (4) cherry picking.

Summaries, as you all know, tend to leave things out such as exculpatory evidence. So, the summary is carte blanche for the government to produce only that "evidence" which is summarized.

But wait, you say. I can challenge the summary to get the raw information summarized. Yep - for an "in camera review.". This means to gevernment and the judge get to see it - not me. So the raw evidence is not gonna be provided to me.

Thus, I will have my Constitutional RIGHT denied on the basis of a preponderance of evidence abou which I have not been afforded the opportunity to respond. The "preponderance of the evidence" is a very easy standard to meet - especially if the evidence is summaries for which I cannot present counter evidence. I cannot produce any summaries. I don't even know the underlying evidence.

I'll put it this way - I could summarize every post (again - summaries are by definition subjective) by any poster here to paint that person as dangerous.

Even better, I could summarize the opinions of quade (just an example) and offer my summary as evidence (not proof - evidence) to support the burden of "preponderance" that quade is dangerous and cannot be trusted with a weapon.

So ithe goverment can form its opinion of quade based upon others' opinions of quade and not let quade know who formed the underlying opinions or the bases therefor.

When Congress puts in a special and highly lenient evidentiary standard - said standard only applicable to the government and normal evidendiary standards for the Petitioner - it is the quintessential unlevel playing field. A true kangaroo court.

My wife is hotter than your wife.

[jcd11235 0]

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Here's how it has worked throughout history.

Congress passes a law. The law can be obviously unconstitutional. It doesn't matter. They want the damned law and they'll pass it.

The law takes effect and is enforced. For example, let's say this law is passed. It begins to be enforced. Upon enforcement, a person who has suffered harm from the law must sue to have the law adjudged unconstitutional - which takes years.

5 years from now a court overturns the law. Congress says, "sorry."

Congress then passes a new law that is similar. Repeat ad infinitum.

See - that's what the SCOTUS and federal courts do - determine whether statutes are constitutional. They often find that they are not.

I think Congress is perfectly willing to pass unconstitutional laws just to make a statement. Presidents really like them. Take a look at the asskickings FDR suffered until he and his Congress worked on packing the court to ensure that the SCOTUS quit holding him back. Take a look at the stuff that Truman did.

I don't doubt for a second that Congress would try to pass a bill like this - and wouldn't mind actually doing it.

Do you see this bill as unConstitutional? If so, why?

Math tutoring available. Only $6! per hour! First lesson: Factorials!

[ChileRelleno 0]

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We really need a subsection of the forum called;

"SHIT THAT'S NEVER GOING TO HAPPEN"

OK, but they managed to get a million+ people on the "NO FLY" list based on similar criteria. Not a peep from Mr. ChileR about that; wasn't his ox being gored, I suppose.

I wholeheartedly agree with ya, this could very well come to life.
Parts of the Patriot Act and the abuse/negligence of some listed on the No Fly Lists, does indeed twist my beard in knots.
But I'm not posting about the Patriot Act/No Fly Lists at this particular time.

I agreed that many Bills such as this actually fall far short or ever becoming law.
But that isn't going to stop me from crying foul and raising the alarm on such crap as this.

ChileRelleno-Rodriguez Bro#414
Hellfish#511,MuffBro#3532,AnvilBro#9, D24868

[lawrocket 3]

Andy -

I agree that denial of due process is a serious issue, no matter how minot it seems.

But as you know, the appeal is administrative mandamus - in which the court may only decide whether denial was arbitrary and capricious with respect to the standards set.

In this, an appeals court cannot find that because the AG is granted broad discretion. The standards are that the AG may put forth otherwise inadmissible evidence to meet its burden and the Petitioner is stuck. 1000 hearsay statements that are made admissible outweigh 800 non-hearsay statements.

An appeals court won't find it arbitrary if the standards are met.


As an aside - administrative practice is great and useful. Turning violations of CORE constitutional rights into administrative remedies is, to me, detestable.

My wife is hotter than your wife.

[Andy9o8 3]

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as you know, the appeal is administrative mandamus - in which the court may only decide whether denial was arbitrary and capricious with respect to the standards set.

In this, an appeals court cannot find that because the AG is granted broad discretion. The standards are that the AG may put forth otherwise inadmissible evidence to meet its burden and the Petitioner is stuck. 1000 hearsay statements that are made admissible outweigh 800 non-hearsay statements.

An appeals court won't find it arbitrary if the standards are met.

I suppose one could launch a challenge on the grounds that the standards themselves are, in practice, violative of the Constitution. And by the 5th or 6th year of the Obama administration, the make-up of the Federal judiciary just might allow that argument to fly.

[jcd11235 0]

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There must be probable cause to arrest someone of a crime.

Right. And with the proposed legislation, the person must be "known (or appropriately suspected) to be or have been engaged in conduct constituting, in preparation for, in aid of, or related to terrorism, or providing material support thereof, and the Attorney General has a reasonable belief that the prospective transferee may use a firearm in connection with terrorism.'"

Are you arguing that appropriate suspicion is fundamentally different from probable cause? The two phrases seem very similar to me.

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Even then, the crime must be proven beyond a reasonable doubt or the person goes freeand has all rights restored.

Likewise, according to H.R. 2159, the onus is on the government to provide evidence supporting the AG's decision to bar the transfer of firearms/explosives to an individual.

`(b) In any case in which the Attorney General has denied the transfer of a firearm to a prospective transferee pursuant to section 922A or has made a determination regarding a firearm permit applicant pursuant to section 922B, an action challenging the determination may be brought against the United States. The petition must be filed not later than 60 days after the petitioner has received actual notice of the Attorney General's determination made pursuant to section 922A or 922B. The court shall sustain the Attorney General's determination on a showing by the United States by a preponderance of evidence that the Attorney General's determination satisfied the requirements of section 922A or 922B. To make this showing, the United States may submit, and the court may rely on, summaries or redacted versions of documents containing information the disclosure of which the Attorney General has determined would likely compromise national security. On request of the petitioner or the court's own motion, the court may review the full, undisclosed documents ex parte and in camera. The court shall determine whether the summaries or redacted versions, as the case may be, are fair and accurate representations of the underlying documents. The court shall not consider the full, undisclosed documents in deciding whether the Attorney General's determination satisfies the requirements of section 922A or 922B.'.

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This gun law requires no such standard.

Clearly, it does offer a similar standard.

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A close parallel would be that a person who is suspected of being a member of one of the aforementioned groups may be precluded from publishing written commentary on political issues using any medium that is involved in interstate commerce calling for an armed uprising or an assassination attempt on the President.

Now it's a closer parallel.

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I believe that the Second Amendment (and all Amendments not superseded) stand in equal dignity with each other.

As do I, but I've yet to see any reasonable argument explaining why H.R 2159 infringes on the 2nd Amendment.

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Any restriction on the right to b ear arms should be met with the restrictions on a right to free speech.

For example, it would be wrong to prevent known terrorists from legally obtaining firearms without, say, preventing people from shouting "Fire!" in a crowded theatre or from inciting riots or …

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Lefties don't think the First, Second or Tenth Amendments should be allowed to exist as written and seek to limit their availability for use by thw citizenry.

Bullshit, plain and simple. Unsubstantiated bullshit. At least the tin foil hatters claiming how the scary Democrats are trying to take away the guns will still want to play with you.

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Righties don't think the First or 4th Amendments shoul be allowed to exist as written and seek to limit their availability for use by the citizens.

Likewise, bullshit.

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I think they all should exist as written and be fully enforced in their words and spirit.

Of course you do.

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[TomAiello 26]

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Are you arguing that appropriate suspicion is fundamentally different from probable cause? The two phrases seem very similar to me.

During the last Obushma adminstration, it appeared that simply being muslim was (through ethnic profiling) sufficient to raise "appropriate suspicion."

So, yes, I'd say that "appropriate suspicion" (a nebulously defined term subject to the whim of the Justice Department) and "probable cause" (a legal term used precisely in statutes) are quite different.

-- Tom Aiello

Tom@SnakeRiverBASE.com
SnakeRiverBASE.com

[kelpdiver 2]

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Look it does not matter what the legislation says as long as you approve of the intent, those who favor this just want guns banned no matter how it gets done,

Incorrect. I see no reason not to support this legislation (i.e. I have not seen any legitimate concerns raised thus far), and I'm pro-gun.

Yeah, we hear that BS claim a lot (Kallend was pro gun too).

You have no problem with prior restraint, which is alarming to anyone that supports the 1st and 2nd.

[1969912 0]

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(Kallend was pro gun too)

Today's joke of the day

"Once we got to the point where twenty/something's needed a place on the corner that changed the oil in their cars we were doomed . . ."
-NickDG

[jcd11235 0]

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Yeah, we hear that BS claim a lot (Kallend was pro gun too).

Yeah, it must be a BS claim when a gun owner claims to be pro-gun.

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You have no problem with prior restraint …

In exactly the same manner that I have no problem with suspects going to jail before and during their trial, and after if convicted.

If you bothered to read the proposed legislation, or the code it will potentially amend, you would know that the proposed bill is far from the most restrictive part of the law as it currently exists.

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You have no problem with prior restraint, which is alarming to anyone that supports the 1st and 2nd.

Sorry. I forgot that no one can believe in (or serve their country defending) the Constitution unless they think exactly like you do.

It's rather ironic that you would imply that someone who makes the effort to research the background in order to form an educated opinion on the topic doesn't support the 1st or 2nd Amendments.

Math tutoring available. Only $6! per hour! First lesson: Factorials!

[1969912 0]

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He has got to be just trolling.......

Me thinks you're right.

"Once we got to the point where twenty/something's needed a place on the corner that changed the oil in their cars we were doomed . . ."
-NickDG

[warpedskydiver 0]

Hmmmmm I guess he did not read the rules

[nerdgirl 0]

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He has got to be just trolling.......

Me thinks you're right.

Disagree w/r/t substance of challenge.

Also disagree w/r/t argument style. Calling it trolling is also an ad hominem. If someone's challenge really is weak or invalid, pull apart the argument. Rather than going after the poster: play the ball not the player. If one asks questions in a climate change thread, one is "skeptical." Whereas, asking questions or challenging consensus in this thread is labelled trolling. As much as you all (general and non-specific) have the right to challenge in that topic, so does someone else here.

VR/Marg

Act as if everything you do matters, while laughing at yourself for thinking anything you do matters.
Tibetan Buddhist saying

[nerdgirl 0]

Thanks for the discussion and additional information guys -- very much appreciated!

My non-lawyer reading of the proposed legislation, H.R. 2159, The Denying Firearms and Explosives to Dangerous Terrorists Act of 2009 is that the substantive restrictions already exist. Largely legislation passed after the 1995 Oklahoma City bombing and 9-11. It's already illegal to give aid or comfort to known terrorists (as defined in the CFR not EOs or other executive or State documents - the Ron Paul bumper sticker list was from Missouri) including money, information, arms, or explosives. As you two have pointed out, the new component is permitting arbitrary intervention by the AG without having to prove sufficient cause. I don't get that latter piece on multiple grounds. Mostly the laws already exist. Enforce the ones that exist. Don't need new ones.

/Marg

Act as if everything you do matters, while laughing at yourself for thinking anything you do matters.
Tibetan Buddhist saying

[warpedskydiver 0]

That has always been the problem, legislators only want to pass new laws instead of repealing stupid or unconstitutional ones.

They would rather grandstand in front of cameras instead of actually doing any real work.

[kelpdiver 2]

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You have no problem with prior restraint …

In exactly the same manner that I have no problem with suspects going to jail before and during their trial, and after if convicted.

Suspect have actually been 'suspected' of committing crimes. When they are arrested, they must be charged in short order (aside from the unconstitutional use of enemy combatents), which requires the DA to agree that there is an actual case. A wildly different standard than what is being discussed here. As already alluded to, the no fly list is hardly a good example of due process.