1+1=2nd Amendment infringment

[jcd11235 0]

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How on earth can redacted and undisclosed documents be used by the Petitioner?

I said the full documents could be used to support the petitioner's case. I didn't say they could be used by the petitioner. The wording is quite clear on the point, and I don't feel like quoting it yet again.

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The petitioner has no way of getting them or knowing what is in them.

Right. I never claimed otherwise.

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And read the lnaguage - "The court shall not consider." That means that if the petitioner does manage to get ahold of the documents, the court shall not consider them.

That's not quite what it says. Read it again. The court can't consider the full documents to support the AG's claims. The court can consider the full documents to ensure that the summaries and redacted document offer a "fair and accurate representation" of the full documents on the petitioner's behalf. In other words, the full documents can be considered to overturn the denial of transfer, but not as evidence to support the denial.

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Wrong. The lnaguage states, "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."

"May" is an extremely important word in statutory construction. It is different from "shall," which is seen in other portions of the text. "May" allows the AG the option of providing summaries (which is not a common thing, thus the reason why it is specifically provided). Or, the AG can go forward with other evidence.

I read that as a way for Congress to forbid the AG from editing out information or distorting the facts, under the guise of national security, without giving individuals an avenue of legal recourse to challenge the AG's claims. I think the bill's authors are trying to avoid any scenario that might be considered analogous to suspending habeas corpus, without having to compromise national security in the event that the evidence is necessarily classified.

While I agree with a previous suggestion that the bill could benefit from more precise language, I think the intent of the bill is to preserve due process for individuals, not to erode it.

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I read it differently, sir. However, I can see your point.

Likewise, sir.

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This is yet another reason to kill the law. If we can reasonably disagree as to the meaning of the words, then the law is vague - and that's bad.

I think killing the bill would be an example of throwing the baby out with the bath water. Clarifying the wording, OTOH, might prevent unintended loopholes that might be abused by an overzealous or less than ethical Attorney General.

The idealist in me is reminded of Benjamin Franklin's words, "They that would give up essential liberties in order to gain some temporary safety deserve neither liberty nor safety." The realist in me understands that modern civilizations and cities inherently trade some liberty for safety. If we didn't make such tradeoffs, we would still be a bunch of individual nomads/hunters/gatherers. A compromise has to be found, and in this particular case, I think the bill does a pretty good job of reaching just such a compromise. It's not perfect, but I don't think it's bad.

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[jcd11235 0]

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So, again, they are guilty until they force the government to admit they are inocent.

Nice.

No more so than is generally the case in the criminal justice system.

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[rushmc 23]

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So, again, they are guilty until they force the government to admit they are inocent.

Nice.

No more so than is generally the case in the criminal justice system.

Really?

So you must not live in the US. Cause here we have to be proven to be guilty. Not the other way around.

The examples you give are not even close.

You are arrested as a suspect but there must be compelling evidence for that to happen or you will be freed by the court.

You support presumed guilt until you go to court to clear your name.

You live in the US? If so I find that hard to beleive you support assumed guilt

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

[jcd11235 0]

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Really?

So you must not live in the US. Cause here we have to be proven to be guilty. Not the other way around.

While we frequently hear the phrase innocent until proven guilty, the reality is that there is a substantial amount of presumed guilt prior to the trial.

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You are arrested as a suspect but there must be compelling evidence for that to happen or you will be freed by the court.

Likewise, the proposed bill places that burden of proof on the government.

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You support presumed guilt until you go to court to clear your name.

Innocent until proven guilty is a nice ideal, but in reality, defendants are often presumed guilty until acquitted. Public safety is often prioritized over a presumption of innocence prior to a guilty verdict.

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You live in the US? If so I find that hard to beleive you support assumed guilt

It's not a matter of supporting it or not supporting it. It's a matter of recognizing the reality of the situation being that guilt is often presumed until the jury returns an acquittal. The accused are often held in custody from arrest to verdict, or are required to post bail and/or surrender their passport. Such actions would not be necessary if all criminal suspects were really presumed innocent until proven guilty.

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[mnealtx 0]

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Likewise, the proposed bill places that burden of proof on the government.

I'm sorry, I see nothing that places any burden of proof on the government before a person gets placed on the 'no gun for you' list. I also see nothing that states that the person is to be notified in the event of a denial due to this bill - can you point out the verbiage for me that explicitly states so?

Mike
I love you, Shannon and Jim.
POPS 9708 , SCR 14706

[rushmc 23]

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Really?

So you must not live in the US. Cause here we have to be proven to be guilty. Not the other way around.

While we frequently hear the phrase innocent until proven guilty, the reality is that there is a substantial amount of presumed guilt prior to the trial.

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You are arrested as a suspect but there must be compelling evidence for that to happen or you will be freed by the court.

Likewise, the proposed bill places that burden of proof on the government.

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You support presumed guilt until you go to court to clear your name.

Innocent until proven guilty is a nice ideal, but in reality, defendants are often presumed guilty until acquitted. Public safety is often prioritized over a presumption of innocence prior to a guilty verdict.

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You live in the US? If so I find that hard to beleive you support assumed guilt

It's not a matter of supporting it or not supporting it. It's a matter of recognizing the reality of the situation being that guilt is often presumed until the jury returns an acquittal. The accused are often held in custody from arrest to verdict, or are required to post bail and/or surrender their passport. Such actions would not be necessary if all criminal suspects were really presumed innocent until proven guilty.

Ok, lets just assume for a moment that the premises you lay out are correct (which they are not but in any event) You want go further against freedoms and the constitution because we are doing it already?

WTF man. What are you willing to give up for some kind of nonsensical security?

It is this kind of stuff that makes, no helps, me understand why Obama was elected.....

"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]

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While we frequently hear the phrase innocent until proven guilty, the reality is that there is a substantial amount of presumed guilt prior to the trial.

Indeed. And there is usually a bail system. Think there will be a bond authorized while appeal is going?

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Likewise, the proposed bill places that burden of proof on the government

It is in a sense a burden or proof. Preponderance. With any other right, it's gonna be "clear and convincing" or "beyond a reasonable doubt." And usually excluded evidence is allowed for this.

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It's a matter of recognizing the reality of the situation

You are correct in a sense. The Constitution, though, provides for bail - and a proscription against "excessive bail.'

The 2nd Amendment provides no such system. Would you support the banning the practice of Islam on the basis of suspicion that terrorists come from the religion? All we'd need to show is a mere preponderance of the evidence on a case by case basis.

Or a proscription of rap music? There is certainly a correlation between its listeners and a large number of homicides. just make sure that the prospective listener can go ahead and challenge the seizure of the music and prevention of any acquisition of same.

My wife is hotter than your wife.

[kelpdiver 2]

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It's a red herring to you because it chops your legs off at the thigh. Higher really, since flying is not a constitutional right.

It's a red herring because it's completely irrelevant to the topic at hand. Let me know if you'd like to actually discuss the topic of the thread.

The subject is prior restraint. You don't want to accept that; instead you want to mindless defend this Democrat led attack of civil liberties just as the right defended the Patriot Act. I see little difference between you.

Now if you had actually admitted to having to weigh it a little, might give you some credit, but you flat out say you have no concerns at all with it.

[okalb 104]

This post is not directed at anyone in particular, I am just curious.

How is it that several people posting in this thread are so concerned that someone could potentially be wrongly labeled a terrorist and lose their guns, but those same people had no problem with someone potentially being wrongly labeled a terrorist and being held against their will in Gitmo for years with no trial or proof. I believe they usually said something like "if you didn't do anything wrong you have nothing to worry about". So civil liberties only apply when it relates to the 2nd but nothing else?

Time flies like an arrow....fruit flies like a banana

[lawrocket 3]

Indeed. A prior restraint is what this is about.

But be advised, this is far from a Democrat-led attack. This bill was introduced in 07 with the blessing of AG Gonzales. The comparisons to the Patriot Act are far more accurate than most think.

The Bush admin wanted this more than anyone. And we all know how much individual liberties counted for it (Gitmo, wiretaps, etc.).

My wife is hotter than your wife.

[kelpdiver 2]

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How is it that several people posting in this thread are so concerned that someone could potentially be wrongly labeled a terrorist and lose their guns, but those same people had no problem with someone potentially being wrongly labeled a terrorist and being held against their will in Gitmo for years with no trial or proof.

i don't care what "some people" believe.

Kallend was against Gitmo abuse, but fine with similar moves on the gun side. He was hardly alone here. The 1st and 4th were more important than the 2nd. And yes, on the other side you see a similar problem. The 1st is only valid if its about religion. The 4-8th don't exist.

But for the more intelligent among us, it's not an either/or situation. Both are wrong.

As suggested (without response, I note) by a couple people here, either arrest these people, or give them their guns. You can't fairly submit them to a process because you think they might commit crimes in the future.

[kelpdiver 2]

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But be advised, this is far from a Democrat-led attack. This bill was introduced in 07 with the blessing of AG Gonzales. The comparisons to the Patriot Act are far more accurate than most think.

It's been fairly consistent between Reno, the multitude of Bush appointees, and now. Obama has pulled the torture policy, at least as far as official stances go. But we still seem to have the Patriot Act, and now moves to augment.

[lawrocket 3]

Yes. This is the interesting thing about this is that it shows a couple of strange bedfellows and overreaching policy aims.

The GOP has been about "security" at the expense of the Constitution (which is what I was mentioning earlier, jcd.). Remember that security is so important that executive discretion trumped the Constitution.

The Democrats have publicly and rhetorically opposed the Patriot Act, wiretaps, Iraq war, etc. While voting for them.

Now, of course, domestic security is important if it means guns are banned available only to those who are appropriate to have them.

Yep. The Secons Amendment is now a pain in the ass to both the GOP and the Dems!

My wife is hotter than your wife.

[jcd11235 0]

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I'm sorry, I see nothing that places any burden of proof on the government before a person gets placed on the 'no gun for you' list.

Being able to easily appeal a denial of transfer makes it much more likely for the government to make a denial without sufficient evidence, just as in the criminal justice system.

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I also see nothing that states that the person is to be notified in the event of a denial due to this bill - can you point out the verbiage for me that explicitly states so?

If you go to the gun shop to buy a gun, and the shop refuses to sell the gun to you, what more notification is needed to make you aware that the transfer was denied? (It seems rather difficult for the government to fulfill their obligation of providing the reasons for the transfer denial without informing the transferee of the denial.)

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[jcd11235 0]

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You want go further against freedoms and the constitution because we are doing it already?

You're right. Instead of arresting accused murderers, we should simply send them a postcard letting them know about their trial date and trust them to show up on their own so that we don't risk presuming guilt prior to a guilty verdict.

I have trouble understanding how people interpret legislation that explicitly ensures due process as something that erodes freedoms.

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What are you willing to give up for some kind of nonsensical security?

??? We're not giving up anything. The bill provides for due process.

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It is this kind of stuff that makes, no helps, me understand why Obama was elected.....

Right. Because under Bush/Cheney, the suspected terrorist would just be classified as an enemy combatant, sent to Gitmo and denied a writ of habeas corpus.

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[jcd11235 0]

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Think there will be a bond authorized while appeal is going?

Why would there need to be? They're not arrested, their denied a transfer of a firearm (which can be immediately appealed).

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Would you support the banning the practice of Islam on the basis of suspicion that terrorists come from the religion?

Nope. Nor do I support genocide of lawyers just because 99% of attorneys give the rest a bad name. Neither is analogous to the proposed bill. They are, like your rap example, red herrings.

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[jcd11235 0]

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The subject is prior restraint.

According to Black's Law Dictionary (seventh edition):

prior restraint. A governmental restriction on speech or publication before its actual expression. • Prior restraints violate the First Amendment unless the speech is obscene, is defamatory, or creates a clear and present danger to society.

Please explain how prior restraint is relevant to the discussion.

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you want to mindless defend this Democrat led attack of civil liberties …

Bullshit. I called you on your red herring. I haven't defended any attacks on civil liberties.

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Now if you had actually admitted to having to weigh it a little, might give you some credit, but you flat out say you have no concerns at all with it.

Perhaps you should actually read my posts in this thread before you make any further incorrect statements.

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[kelpdiver 2]

Playing stupid doesn't become you.

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Please explain how prior restraint is relevant to the discussion.

Bullshit. I called you on your red herring. I haven't defended any attacks on civil liberties.

Notice the lawyers have no problem seeing it. Only you fail to see the parallels to it, or to no fly lists, or Gitmo.

You (and the proponents) seek to disarm people that have committed no crimes because you believe they might if they are allowed to buy their weapon.

let me repeat it in case you're really having this much trouble. PEOPLE THAT HAVE COMMITTED NO CRIMES.

[kelpdiver 2]

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If you go to the gun shop to buy a gun, and the shop refuses to sell the gun to you, what more notification is needed to make you aware that the transfer was denied? (It seems rather difficult for the government to fulfill their obligation of providing the reasons for the transfer denial without informing the transferee of the denial.)

They should be informed when they are placed on the no gun list.

People have died during the 10-15 day waiting periods that assholes forced upon many states. What we have here is a wait of months to years.

Another comparison (yeah, I know you hate those) is silently purging people from the voter rolls in the months before the November election. By the time they find out, it's too late to do anything about it. The appropriate fix is to prohibit purges between the primary and the general election. It's not to give some phony due process promise.

[jcd11235 0]

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You (and the proponents) seek to disarm people that have committed no crimes because you believe they might if they are allowed to buy their weapon.

As I understand, they're already legally forbidden to obtaining firearms. What this bill does is guarantees an avenue of appeal. It boggles my mind how many people are arguing against legislation that will help to guarantee due process.

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[jcd11235 0]

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People have died during the 10-15 day waiting periods that assholes forced upon many states. What we have here is a wait of months to years.

Another comparison (yeah, I know you hate those) is silently purging people from the voter rolls in the months before the November election. By the time they find out, it's too late to do anything about it. The appropriate fix is to prohibit purges between the primary and the general election. It's not to give some phony due process promise.

Actually, I love your red herrings. They make it obvious to most reasonable people that your argument lacks merit.

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[lawrocket 3]

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I have trouble understanding how people interpret legislation that explicitly ensures due process as something that erodes freedoms.

Because there is no present need for due process. I will again go to the "free sppech" issue. Picture a law that requires a person wishing to submit a letter to the editor to be subject to a background investigation and approval of the content of the letter. Under the law, a disapproval must be made within 48 hours. If the writer feels that disapproval was not merited, that person may file a petition with the court, in which case the burden is on the government to prove beyond a reasonable doubt that the content of the letter is obscene, overly inflammatory, treasonous or seditious.

Perhaps you would not find that to be an erosion of freedom. If so, you and I would differ.

As much as criminal law is brought up, the Bill of Rights provides some explicit procedures for what process is due - no excessive bail, jury trial, probable cause, etc. The criminal arena is loaded with these protections.

Also note - due process is a presumed requirement, thanks to the Fifth and Fourteenth Amendments. For "due process" to apply, you've gotta have: (1) a protected life, liberty or property right; (2) a deprivation of the right; and (3) is the deprivation of the liberty on a case-by-case basis. If so, "due process" is required.

All three would be met with an AG's denial of a firearm permit. That leaves the question - what process is due?

As much as I hate bringing it up, the McCarthy era is instructive in the need for "fair" procedures. Back with the red-baiting, undisclosed informants or even misanthropes generated rumors about the loyalty of government employees, which resulted in the loss of jobs and even freedoms. These employees were provided with hearings but fundamentally deprived of any realistic ability to respond to the accusations.

Fundamental to this right to respond is to be provided notice of the evidence against you. to confront your accuser, to present your own evidence and argument and to have the decision made upon the basis of the record of the proceedings.

The case of Mathews v. Eldridge (1976) 424 U.S. 319, the Court gave a test for what level of process is due: (1) what is the private interest; (2) what is the risk of an erroneous deprivation of such interest through the procedures used; (3) what is the probable value (if any) of additional procedural safeguards; and (4) what are the government's burdens of additional procedural requirements.

In Eldridge, the court also opined that in challenging a procedure, the litigant must prove another suggested procedure that would be effective. Of course, Eldrige did not deal with a Constitutional right, either. Also, in Eldridge, the Court noted that Eldridge had full access to the files showing the reason for the denial of his disabilit benefits.

So my point is that if "due process" is required, by definition a freedom has been eroded. And is "due process" actually "less than is due process?" I couldn't find anything where a Constitutional right (outside of the criminal context) has been eroded, subject to a due process requirement.

For a right that is expressly stated in the Constitution to be denied and must be affirmatively challenged by the citizen seems to be a rough thing. And since the government need only prove a "suspicion" by "preponderance" of the evidence and without full access to the government's file, it fits in with the element above of the probable benefit of any procedural safeguards.

We saw this same kind of thing in the 1950's.

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[TomAiello 26]

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How is it that several people posting in this thread are so concerned that someone could potentially be wrongly labeled a terrorist and lose their guns, but those same people had no problem with someone potentially being wrongly labeled a terrorist and being held against their will in Gitmo for years with no trial or proof. I believe they usually said something like "if you didn't do anything wrong you have nothing to worry about". So civil liberties only apply when it relates to the 2nd but nothing else?

I can't really answer the question, because I'm generally opposed to both practices.

I think _a lot_ of people posting here try to pigeonhole those who disagree with them as "those lefties" or "those righties" without actually inspecting each persons viewpoints. This leads to lots of supposed inconsistencies, in which people think "those lefties" or "those righties" all think alike, and want to know why they "were" on the other side of the last issue, when in fact the actual individuals have fairly consistent positions--it's just the perception of "their group" that is faulty.

-- Tom Aiello

Tom@SnakeRiverBASE.com
SnakeRiverBASE.com

[TomAiello 26]

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But be advised, this is far from a Democrat-led attack. This bill was introduced in 07 with the blessing of AG Gonzales. The comparisons to the Patriot Act are far more accurate than most think.

It's been fairly consistent between Reno, the multitude of Bush appointees, and now. Obama has pulled the torture policy, at least as far as official stances go. But we still seem to have the Patriot Act, and now moves to augment.

And again, I have to ask;

WHERE'S THE CHANGE?

It really looks like, on most substantive issues, we're still following the same policies.

George Obushma, Barack Obushma...same show, different lead actor.

-- Tom Aiello

Tom@SnakeRiverBASE.com
SnakeRiverBASE.com

[lawrocket 3]

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Why would there need to be? They're not arrested, their denied a transfer of a firearm (which can be immediately appealed).

They are enjoined from purchasing a weapon on the stated basis of individualized facts. This isn't like banning alcohol for all persons under 21. This is deciding to discriminate on an individual basis.

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They're not arrested

Yep. They are not arrested. Just denied a constitutional right even though they are not being charged with any crime. There is merely a suspicion. Imagine Nixon's AG, John Mitchell, being in charge of who gets or doesn't get weapons. Recall that this is the guy who advocated not only preventive incarceration of suspects who are charged with a crime, but preventive incarceration of persons who were not charged with a crime.

If a person is being incarcerated prior to trial, that person is entitled to a hearing where the government has to prove by clear and convincing evidence that no release conditions will reasonably assure the safety of another person and the community.

Note - this is for a person actually charged with a crime.

Note - this is the Constitution we're talking about.

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Neither is analogous to the proposed bill

Genocide is a red herring, sir. Banning of the practice of a religion would violate a Constitutional right. Banning of some persons from attending a mosque on the basis of suspicion would probably be considered pretty abhorrent. Assuming that there is a process set forth to challenge the banning, it would still be intensely problematic - especially if the person lacks access to the entirety of the file and the government need only prove by preponderance of the evidence.

The two are highly analogous. Both are Constitutional rights.

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