Ammo For Sale

« « Unappealing | Home | Survivalism TV » »

Civil Rights Victory

In United States v. Rehlander, the first circuit rules that Heller means that Maine’s mental health procedures cannot automatically bar firearms possession. There must be an actual hearing since deprivation of a constitutional right requires due process. You can see the ruling here.

6 Responses to “Civil Rights Victory”

  1. Matthew Carberry Says:

    Does this have implications for some DV restraining orders and such as those don’t necessarily allow the potential restrictee to appear in their own defense or present evidence?

  2. Ron Says:

    Probably not, since you do have the right to contest a restraining order in court.

    This might have different implications in FL, where a DV arrest (regardless of disposition) will keep you from possessing a handgun…

    – Ron

  3. Patrick Says:

    A good ruling that will help in many places. In essence, the court says that administrative-based denials of the right are unconstitutional. They focus on mental-health commitments where no right to challenge your interment is allowed (emergency procedures limited to three day periods), but they plainly say that Heller brings Due Process considerations to play.

    This is a big deal that is likely going to be applied to a number of situations:

    – DV / restraining orders where no adversarial hearing is held (you cannot defend yourself from the claims). Lautenburg would scream if he were smart enough to figure this out on his own.

    – “Terrorist” Watch Lists that are based on non-adversarial rulings or administrative findings (Eff Off, Rep. King).

    – Administrative denials based on non-judicial findings

    – Denials based on the use of (legally prescribed) psychiatric drugs that are not in response to an adversarial commitment hearing. In other words…Prozac alone cannot be used to stop you.

    – Also, the court says that any regime that denies a right permanently – without any practical way of petitioning your rights back – is highly suspect and almost surely unconstitutional. They specifically mention the fact Congress has never funded the process they set up, and said that the mere words are not enough to claim the system exists – it must be practically available and exercised.

    Right now this is limited to the 1st Circuit, but will influence others. Within the Fourth Circuit there is at least on state that will be sweating: Maryland.

    Maryland requires that purchasers sign a form allowing a mental-health background check as a condition of transfer. Using the logic of this case, the results of that check are useless. Only commitments that follow adversarial judicial proceedings will work.

    I’d say that this is a big deal. Heller didn’t have much of a practical effect for anyone, anywhere. Even DC and Chicago are still stringing their people along. But Heller has a long tail, and this type of result is one of the many we expected eventually. Let’s just look forward to even more to come.

  4. Mike M. Says:

    Patrick summarized it quite well. This is a BIG win, as it establishes the precedent that only an adversarial hearing can deprive someone of RKBA.

  5. chris Says:

    This is an important win.

    Particularly since the anti-gun types want to ban people on a terrorist watch list (e.g. gun bloggers) from buying guns.

    I didn’t read the decision, but it sounds like a procedural due process decision, which, if I recall, means that the deprivation of rights can only be achieved (except in exigent circumstances) after giving the person whose rights are to be removed a hearing.

    The Constitution also grants substantive due process, but I forget what that entails.

    It’s been 30 years since I took the Bar exam, so I’m a little rusty on areas that I don’t practice in.

  6. Patrick Says:

    Substantive Due Process is the 20t Century invention of the Supreme Court that overturns the 19th Century Slaughterhouse cases without actually overturning the Slaughterhouse cases.

    The 14th Amendment applied the Bill of Rights to all the people of US, but Slaughterhouse upended that five yers later. The court basically gutted the part about “privileges and immunities” being applied to all due to racist concerns. Couldn’t have them former slaves expecting rights and all…

    But the Due Process provisions of the 14th survived.

    20th Century courts had to overturn segregation, Jim Crow and the like and the original 14th really was the best option. But it was gutted. Rather than overturn Slaughterhouse, they instead leaned on the surviving portions of the amendment – the Due Process provisions – and created “Substantive” Due Process from whole cloth.

    Substantive Due Process essentially allows the court to “incorporate” individual rights nationwide in selective fashion, once the are asked to do so. The 1st Amendment didn’t even get a full incorporation until the 1950s. Heller set the groundwork for McDonald, which sealed the deal in 2010 using Substantive Due Process. Of interesting note, at least three of the justices who went pro-2A in McDonald have openly criticized SDB as a sham; and several of the justices who went against 2A are usually pro-SDB.

    So this goes to show, when the right kind of case comes along (judicially upending long precedent), the justices will tend to vote with their heart and bias over their intellectual leanings. They are still human.

    Getting Obama out this year is critical to the establishment of a strong court that will defend our rights. Seriously, little else matters more.

Remember, I do this to entertain me, not you.

Uncle Pays the Bills

Find Local
Gun Shops & Shooting Ranges


bisonAd

Categories

Archives