1+1=2nd Amendment infringment

[lawrocket 3]

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they're already legally forbidden to obtaining firearms

No. They aren't. That's why the law gives the AG "discretion" to deny.

Read the bill - it amends the statute in more ways than just providing an administrative remedy. It gives the AG the authority to deny the transfers because of suspicion of danger.

That's why the bill is there.

My wife is hotter than your wife.

[mnealtx 0]

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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.)

Because you are not told WHY you were denied...only THAT you were denied - unless they've changed the system in the last several years.

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

[jcd11235 0]

Finally, a well thought out post. I don't completely agree with your conclusions, but at least your post isn't merely a knee-jerk reaction making claims irrelevant to the topic like some others have. Thanks for that.

Oh, and thanks for the new sig line. It's priceless! I.e. I'm not paying you a damn thing for it.

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I will again go to the "free sppech" issue.

sigh> This still isn't a free speech issue.

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

Thus, I am confident that you disagree with the Court's decision in Washington v. Alaimo, 934 F. Supp. 1395 (S.D. Ga. 1996).

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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.

Fortunately, the language of H.R. 2159 prevents the deprivation "of any realistic ability to respond to the accusations."

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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.

Those are all things that are possible under H.R. 2159.

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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.

I'm not sure what you mean by "rough thing."

From the Opinion of the Court in DISTRICT OF COLUMBIA ET AL. v. HELLER:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. … For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. … Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms [See footnote].
…

[Footnote:] We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.

So, H.R. 2159 might be a "rough thing" (or it might not, depending on your definition of the rather ambiguous phrase rough thing), but it does not appear to be unConstitutional, at least not for any reason thus far offered in this thread.

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[jcd11235 0]

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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.

I addressed this in my (immediately) previous post.

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this is the Constitution we're talking about.

Actually, it's H.R. 2159 that we're talking about.

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Neither is analogous to the proposed bill

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Genocide is a red herring, sir.

Right. That's why I gave it as an example of such.

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The two are highly analogous. Both are Constitutional rights.

The biggest relevant similarity is that neither right is unlimited.

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[jcd11235 0]

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No. They aren't. That's why the law gives the AG "discretion" to deny.

Yes, they are. It is currently illegal to give aid or comfort to terrorists. For that matter, if those terrorists are enemies of the US, knowingly giving aid and comfort to those, then helping them obtain firearms could be punishable as treason.

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That's why the bill is there.

I can think of a few reasons the bill might be needed. The one you offer is way down the list.

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[jcd11235 0]

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Because you are not told WHY you were denied...only THAT you were denied - unless they've changed the system in the last several years.

You have to ask why, but if you ask, they must give you the reasons in writing within five days. From the Brady Handgun Violence Prevention Act, Section 103(f):

WRITTENREASONSPROVIDEDONREQUEST.—If the national instant criminal background check system determines that an individual is ineligible to receive a firearm and the individual requests the system to provide the reasons for the determination, the system shall provide such reasons to the individual except for any information the disclosure of which the Attorney General has determined would likely compromise national security, in writing, within 5 business days after the date of the request.

(Amendment resulting from H.R. 2159 in red.)

As previously discussed in this thread, withholding such information from the transferee on the grounds of national security could make it more difficult for the government to support their case on appeal, while not penalizing the transferee making the appeal.

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[mnealtx 0]

Ok...so we've got your mistake in the notification of denial corrected... care to take on the burden of proof in regard to the placement on the list, now?

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

[lawrocket 3]

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Oh, and thanks for the new sig line. It's priceless!

No worries. It's kinda nice when there is no need for due process because there is no taking. Hey, I don't need due process of law to allow me to make this post. It's a pretty cool thing being free to make assinine posts without the need for government approval.

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am confident that you disagree with the Court's decision in Washington v. Alaimo, 934 F. Supp. 1395 (S.D. Ga. 1996).

No. Not really. Personally, I would have done it differently by sanctioning him $20k pursuant to Rule 11 and levying on it. But the cout did make it clear that the bond was affordable. so $1500 and a signed statement he has read and will abide by Rule 11. Not bad.

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prevents the deprivation "of any realistic ability to respond to the accusations."

Unless it is for national security. Recall - the hearsay summaries may be used. How does one confront an accuser is the accuser is the summarized hearsay recollection?

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it does not appear to be unConstitutional, at least not for any reason thus far offered in this thread.

I read Heller the same way. Not all restrictions are unconstitutional. Preventing the purchase based upon uncharged suspicions is arbitrary.

Why don't we just search them at random times to see whether they have weapons on them and seize anything they find? Just give the citizens a due process right to get the stuff back.

Maybe we could give the POTUS order people to quarter troops, and provide citizens with 60 days to challenge it. Just so long as the government proves by a preponderance of the evidence that its troops needed quartering then due process is satisfied, right?

My wife is hotter than your wife.

[rushmc 23]

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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.

Unfortunatly, this is about an agenda, not rights

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

[kelpdiver 2]

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they're already legally forbidden to obtaining firearms

No. They aren't. That's why the law gives the AG "discretion" to deny.

Read the bill - it amends the statute in more ways than just providing an administrative remedy. It gives the AG the authority to deny the transfers because of suspicion of danger.

And yet JCD still fails to see a problem. Amazing.

Well, certainly not the first time someone on the internet was wrong. Time to let the sleeping dogs lie.

[jcd11235 0]

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Ok...so we've got your mistake in the notification of denial corrected... care to take on the burden of proof in regard to the placement on the list, now?

??? In English, please?

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[mnealtx 0]

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Ok...so we've got your mistake in the notification of denial corrected... care to take on the burden of proof in regard to the placement on the list, now?

??? In English, please?

Upthread you said that (paraphrased) "how would the buyer NOT know why he was denied?" - we've got that one straightened out, now that it's made clear that the person is not told, but has to appeal to get the info.

Now, we're left with the 'burden of proof' you mentioned - where in the bill does it show any burden of proof required to place someone on the list?

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

[jcd11235 0]

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Unless it is for national security. Recall - the hearsay summaries may be used. How does one confront an accuser is the accuser is the summarized hearsay recollection?

Once again, the Court can examine the full documents upon which the summaries and redacted documents are based, on behalf of the transferee does not, to ensure that they present a fair and accurate assessment. (It is true that H.R. 2159 does not allow the transferee to view them directly, but if federal judges cannot be trusted to be impartial, then we have much bigger problems than anything H.R. 2159 might create.) If the summaries do not present an accurate picture, the judge can discredit them to whatever extent she feels prudent. OTOH, if the full documents paint a worse picture than the summaries, only the summaries can be considered by the judge w/r/t the AG supporting his case.

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I read Heller the same way. Not all restrictions are unconstitutional. Preventing the purchase based upon uncharged suspicions is arbitrary.

Arbitrary? No. Less than ideal? Yes. Unfortunately, realism and idealism are often not completely consistent with one another.

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Maybe we could give the POTUS order people to quarter troops, and provide citizens with 60 days to challenge it. Just so long as the government proves by a preponderance of the evidence that its troops needed quartering then due process is satisfied, right?

During time of war, if Congress passed legislation consistent with your hypothetical proposal, the President could do just that, Constitutionally.

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[jcd11235 0]

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Upthread you said that (paraphrased) "how would the buyer NOT know why he was denied?"

I fixed that for you to accurately reflect what I posted.

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where in the bill does it show any burden of proof required to place someone on the list?

Short answer:

"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."

Neither section 922A nor 922B provides the AG the ability to arbitrarily deny the transfer of firearms.

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[mnealtx 0]

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Upthread you said that (paraphrased) "how would the buyer NOT know why he was denied?"

I fixed that for you to accurately reflect what I posted.

Then you answered a question that was not asked.

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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

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where in the bill does it show any burden of proof required to place someone on the list?

Short answer:

"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."

Neither section 922A nor 922B provides the AG the ability to arbitrarily deny the transfer of firearms.

Again, you are answering a question that was not asked. Please try again.

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

[lawrocket 3]

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It is true that H.R. 2159 does not allow the transferee to view them directly, but if federal judges cannot be trusted to be impartial,

The judge can be trusted to be impartial. The judge cannot, however, be trusted to rely on undisclosed evidence. What is the AG's interest in disclosing the stuff that helps the transferee out? What's the interest of the AG in giving all the information to the judge? (See Senator Stevens. Gross misconduct that was discovered because the defendants had a right to the information and contacted the witnesses who would and did testify. The AG just simply didn't put that stuff out there. Gee, we won't see any of that here).

Also, please note - the prosector MAY use hearsay upon hearsay summaries.

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Unfortunately, realism and idealism are often not completely consistent with one another.

You quoting Dick Cheney now? I think that's what he said in defending the use of torture.

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During time of war, if Congress passed legislation consistent with your hypothetical proposal, the President could do just that, Constitutionally.

So it could be done now. We are certainly not in a time of peace.

My wife is hotter than your wife.

[jcd11235 0]

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Then you answered a question that was not asked.

You posted:

"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?"

You didn't ask about why. To be fair, that may be what you intended to ask about, but I'm not very good at reading minds.

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Again, you are answering a question that was not asked. Please try again.

Fair enough. It says so approximately two-thirds down this page. Now you know where H.R. 2159 says so.

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[mnealtx 0]

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Then you answered a question that was not asked.

You posted:

"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?"

You didn't ask about why. To be fair, that may be what you intended to ask about, but I'm not very good at reading minds.

Odd, I thought the bolded above was perfectly readable.

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Again, you are answering a question that was not asked. Please try again.

Fair enough. It says so approximately two-thirds down this page. Now you know where H.R. 2159 says so.

[jcd11235 0]

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Odd, I thought the bolded above was perfectly readable.

I did, too. It asks nothing about why.

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No, it does not. I am NOT asking if the AG must supply proof when a denial is appealed, I am asking WHERE in the bill does it show any burden of proof on the AG TO PLACE SOMEONE ON THE LIST???

Is that clear enough, or are you going to continue to deliberately misconstrue the question?

What list are you referring to? H.R. 2159 makes no mention of any list. Perhaps you should read (or re-read) the proposed bill. SQ3R can be a helpful tool.

I'm not deliberately misconstruing anything. I'm answering the questions as you ask them. If you want different questions answered, then you should ask those questions, instead.

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

[mnealtx 0]

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Odd, I thought the bolded above was perfectly readable.

I did, too. It asks nothing about why.

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No, it does not. I am NOT asking if the AG must supply proof when a denial is appealed, I am asking WHERE in the bill does it show any burden of proof on the AG TO PLACE SOMEONE ON THE LIST???

Is that clear enough, or are you going to continue to deliberately misconstrue the question?

What list are you referring to? H.R. 2159 makes no mention of any list. Perhaps you should read (or re-read) the proposed bill. SQ3R can be a helpful tool.

I'm not deliberately misconstruing anything. I'm answering the questions as you ask them. If you want different questions answered, then you should ask those questions, instead.

Ok, so you're going to continue to deliberately misconstrue and play semantics games. Thanks for the honesty.

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

[jcd11235 0]

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Ok, so you're going to continue to deliberately misconstrue and play semantics games. Thanks for the honesty.

I'm not misconstruing anything, deliberately or otherwise. I'm not psychic. I can't read your mind. You have to ask the questions to which you seek answers.

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

[rushmc 23]

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Ok, so you're going to continue to deliberately misconstrue and play semantics games. Thanks for the honesty.

I'm not misconstruing anything, deliberately or otherwise. I'm not psychic. I can't read your mind. You have to ask the questions to which you seek answers.

He did. YOU on the other hand, can not honestly answer the question, with an answer, you support!

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