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National 2nd Amend. Political & Legal Discussion Discuss national gun rights and 2A related political topics here. All advice given is NOT legal counsel.

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Old 07-12-2019, 3:50 PM
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Default Amicus Brief filed by Joseph G.S. Greenlee in U.S.A. v. Raphael Hunt

FPC, SAF and a few other groups filed an amicus brief in the federal Third Circuit Court of Appeals in the criminal appeal of U.S.A. v. Raphael Hunt-Irving, which challenges the federal lifetime ban on firearm possession by even non-violent felons. It argues that historically only persons who were proven to be dangerous by a conviction for a of violent crime lost their right to arms. Based on this historical analysis the brief concludes that the government is violating Mr. Hunt-Irving's Second Amendment rights. I agree with the conclusion and also believe the government is violating Mr. Hunt-Irving's rights.

That said, there are historical examples of people being deemed outside the law's protection who were not violent such as counterfeiters pursuant to the Treason Act of 1351. This supports the proposition that conviction for some nonviolent crimes can strip a person of their rights. The relevant question is what persons are outside of the historical right to arms? Some classes of persons are outside the scope of the Second Amendment right per Heller. The relevant class of persons here includes certain types of criminals. Thus, the preliminary question is what is a crime?

Most commentators use Blackstone's definition of a crime. Blackstone defined a crime as “an act committed or omitted in violation of a public law either forbidding or commanding it” 4 Bl. Comm. 15. However, an act was not necessarily a crime because it was prohibited by a public law. It is necessary to look further and ascertain the grounds upon which the act was punished and by whom the punishment is imposed. To constitute a crime, an act had to have been punished to protect the public and punishment had to have been dealt by the State or other sovereign power. Thus, in the case of In re Bergin., 31 Wis. 383 (1872), it was held that any wrong against the public which is punishable in a criminal proceeding prosecuted by the state in its own name or in the name of the people, or of the sovereign, is a crime within the meaning of the constitutional prohibition against involuntary servitude except as a punishment for a crime and that the term therefore includes both felonies and misdemeanors. See also, People v. Hanrahan, 75 Mich. 611, 42 N.W. 1124 (1889).

At common law, there were there were three classes of crime: Treason, Felony and Misdemeanor. At common law, felonies were those offenses which occasioned forfeiture of the lands and goods of the offender and to which might be added death or other punishment according to the degree of guilt. 4. Bl. Comm. 94; Fasset v. Smith , 23 N.Y. 257(1891); Bannon v. U.S., 156 U.S. 464 (1895). The Common Law felonies were murder (this included suicide), manslaughter, rape, sodomy, robbery, larceny, arson, burglary, and arguably mayhem. See William Lawrence Clark, William Lawrence Marshal New York, Fred B Rothman & Co., A Treatise on the Law of Crime (1905) at 12. All other crimes were either misdemeanors or treasons.

Treason - At common law treason was divided into petit and high treason. High treason was the compassing of the King's death, and aiding and comforting of his enemies, the forging or counterfeiting of the privy seal, or the killing of the chancellor, or either of the king's justices; and petit treason was where a wife murdered her husband, an ecclesiastic his lord or ordinary, or a servant his master. Id at 10. In this country, treason is defined by the Constitution of the United States, and consists of levying of war against the United States, or adhering to their enemies, giving them aid and comfort. Id at 10.

Felony by Statute- Since the ratification of the Second Amendment many crimes have been turned into a felony by statute. However, Heller teaches us that constitutional rights and their limitations should be viewed at the time they were enshrined. Thus, crimes deemed felonies by the modern day legislature do not necessarily disqualify one from Second Amendment rights.

The ultimate question one must ask when determining whether a person is presumptively disqualified from Second Amendment rights is: what classes of persons were historically precluded from Second Amendment rights? It is those classes which were precluded in 1791, i.e., non-virtuous citizens. The classical republican notions inextricably linked to the Founding of the United States emphasized civic virtue, i.e., the virtuous citizenry. Historically, the State disarmed non-virtuous citizens and those like children or the mentally unbalanced, who were deemed incapable of virtue. See, e.g. Robert Dowlut, The Right to Arms: Does the Constitution or the Predilection of Judges Reign? 36 OKLA. L.REV. 65, 96 (1983) (“Colonial and English societies of the eighteenth century, as well as their modern counterparts, have excluded infants, idiots, lunatics, and felons [from possessing firearms].”).

Accordingly, the ultimate question is what is civic virtue? A person with civic virtue possesses qualities associated with the effective functioning of the civil and political order, or the preservation of its values and principles. Skinner, Quentin (1978-11-30). The Foundations of Modern Political Thought: Volume 2, The Age of Reformation. Cambridge University Press. ISBN 9780521294355. It is those persons who do not possess these qualities that are outside of the scope of the Second Amendment right. Whether a person is dangerous or not does not necessarily determine this
“We are twice armed if we fight with faith.”

― Plato

Last edited by wolfwood; 07-15-2019 at 5:44 AM..
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Old 07-12-2019, 4:20 PM
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Why is "presumptively legal" given such deference? Separate but equal was "presumptively legal" - until Brown. Redlining, restrictive covenants, were presumptively legal. Should the court have deferred to Plessey under that theory? Why is "presumptively legal" not simply another way of saying "we've been doing it wrong for so long that tradition outranks rights"?
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