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Old June 26, 2009, 06:36 AM   #1
Thermodyne
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2nd Amendment

Now that the US High court has ruled that the second amendment is a personal civil right, How do states like Maryland get away with using misdemeanors to remove peoples rights? The MD law basically states that the legislature has decided that for the purpose of firearms purchases, any crime carrying the possibility of a 2 year sentence shall be considered a felony. I'm no lawyer, but that sure smells bad to me.

Basically you could have your 2 amendment right removed for driving 40 over the speed limit, or allowing your child to ride a motorbike without a helmet, even if you were not present at the time. Almost all misdemeanors have at least the possibility of a 2 year sentence. If that is allowed to stand, what's to prevent them from using it to limit free speech, right of peaceful assembly or right to vote?
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Old June 26, 2009, 10:41 AM   #2
maestro pistolero
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Sounds ripe for a challenge to me.
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Old June 26, 2009, 10:59 AM   #3
Bartholomew Roberts
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That is actually an improvement over Federal law if true. Under Federal law you are prohibited if:

"convicted in any court of, a crime punishable by imprisonment for a term exceeding one year"

Note you don't have to be actually sentenced to one year, just convicted of a crime that could be punishable by more than a year.

As far as misdemeanors go, I haven't looked at the state code; but I've yet to read a state code where a misdemeanor crime was punnishable by 2 years imprisonment - especially for traffic offenses. Can you give me a link showing an example of this in your state penal code?
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Old June 26, 2009, 12:30 PM   #4
vranasaurus
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Quote:
That is actually an improvement over Federal law if true. Under Federal law you are prohibited if:

"convicted in any court of, a crime punishable by imprisonment for a term exceeding one year"

Note you don't have to be actually sentenced to one year, just convicted of a crime that could be punishable by more than a year.

As far as misdemeanors go, I haven't looked at the state code; but I've yet to read a state code where a misdemeanor crime was punnishable by 2 years imprisonment - especially for traffic offenses. Can you give me a link showing an example of this in your state penal code?
Actually federal law excludes misdemeanors punishable by two years or less.

921a(20)

Quote:

The term “crime punishable by imprisonment for a term exceeding one year” does not include—

(A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices, or

(B) any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.
I know in Iowa aggravated misdemeanors carry a two year sentence but they don't trigger a disability.
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Old June 26, 2009, 01:07 PM   #5
carguychris
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Quote:
Now that the US High court has ruled that the second amendment is a personal civil right, How do states like Maryland get away with using misdemeanors to remove peoples rights? The MD law basically states that the legislature has decided that for the purpose of firearms purchases, any crime carrying the possibility of a 2 year sentence shall be considered a felony.
Search L&CR using the word "incorporation". It hasn't happened yet. Will soon I hope.
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Old June 26, 2009, 05:05 PM   #6
Bartholomew Roberts
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Vranasaurus, thanks for the correction and update with the relevant law.
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Old June 26, 2009, 07:49 PM   #7
Jim March
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Everything you ever wanted to know about "Incorporation" - period:

http://www.calguns.net/calgunforum/s...d.php?t=188391

Maryland thinks they don't have to honor the 2nd Amendment (yet). This link shows what's going on.
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Old June 26, 2009, 08:07 PM   #8
Frank Ettin
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Quote:
Originally Posted by Thermodyne
Now that the US High court has ruled that the second amendment is a personal civil right, How do states like Maryland get away with using misdemeanors to remove peoples rights? The MD law basically states that the legislature has decided that for the purpose of firearms purchases, any crime carrying the possibility of a 2 year sentence shall be considered a felony. I'm no lawyer, but that sure smells bad to me....
Two things --

[1] The 2nd Amendment doesn't apply to the states [yet], except in the 9th Circuit. Jim March touched on that.

[2] The Supreme Court ruling in Heller that the 2nd Amendment is an individual right wouldn't in any case simply cause all gun control laws to magically evaporate. A law remains on the books and enforceable until either the state legislature chooses to repeal it or until a court tosses it out upon a challenge.
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Old June 26, 2009, 08:21 PM   #9
vranasaurus
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I do think the issue of taking away someones civil rights based upon conviction for a misdemeanor will eventually be decided.

My thought is that if a crime is serious enought to warrant permenantly taking away someones civil rights shoudln't it be a felony?
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Old June 26, 2009, 09:14 PM   #10
Thermodyne
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http://www.maryland-defense-lawyer.c...urtProcess.htm
Quote:
What is the Difference Between a Felony And a Misdemeanor?

In Maryland there is no clear line for determining whether a crime is a felony or a misdemeanor. Unless the statute says otherwise, the classification of a crime as a felony or a misdemeanor comes down to what is was considered at common law. Unless the offense was considered a felony at common law, or is specified as such in the statute, the crime will be considered a misdemeanor.

However, there is a rule-of-thumb used to distinguish a misdemeanor from a felony: Unless a statute says otherwise, crimes that have a penalty of more than 1 year in jail are considered felonies, while crimes that have a penalty of 1 year or less in jail are considered misdemeanors.
http://www.maryland-defense-lawyer.c...Sentencing.htm

Quote:
Felony v. Misdemeanor

Strictly speaking, Maryland statues don't use the terms misdemeanor and felony. However, in general use, felonies are always regarded as more serious charges than misdemeanors.

In the broadest sense, so-called felony charges in Maryland include violent and very serious offenses, including murder, first degree assault and sexual assault, weapons charges, and selling drugs.

Misdemeanor charges can still have significant and life changing penalties. These offenses include 1st offense DUI, shoplifting, Disorderly Conduct and Marijuana possession.

If you are facing a felony offense, you can expect to be facing minimal penalties of 1 year or more in prison. Many serious or violent felonies have mandatory minimum sentences that are significantly higher than that.

Other results of a felony conviction can be: loss of professional licensing or certification, you may no longer be able to own a firearm or gun, you may lose the right to vote, you may become ineligible for many types of employment, and more.

Misdemeanor offenses are generally defined as crimes in which the maximum sentence is 1 year in jail. For a misdemeanor conviction, you can still face significant additional penalties, that can include loss of driver's license, inability to travel internationally, problems with immigration status, and any number of court imposed probation requirements.

For a true understanding of what penalties you are facing for any Maryland criminal charge, you need to speak to an experienced defense attorney. A lawyer will need to ask you a number of questions about the facts of your case, any prior offenses, and other circumstances that could affect what is likely to happen to you in court.
Sort of like the justice system having it's cake and eating it too.

http://www.mcsm.org
/mdlaw.html


I will be there when and if this little fiefdom ever does get forced to stand before a federal judge.
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Old June 26, 2009, 09:58 PM   #11
ImprobableJoe
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Quote:
My thought is that if a crime is serious enought to warrant permenantly taking away someones civil rights shoudln't it be a felony?
My thought is that a crime that would enable the government to restrict your gun ownership should actually have some relevance to guns and violence. Committing a nonviolent felony shouldn't automatically have much bearing on your right to buy a firearm, while multiple misdemeanor assault convictions might be a good reason to keep a gun away from someone.
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Old June 26, 2009, 09:59 PM   #12
vranasaurus
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It seems you need to lobby your state legislators to change Maryland's code to clearly define flonies and misdemeanors.
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Old June 27, 2009, 08:35 AM   #13
Thermodyne
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To lobby in this state is to hand out wads of cash. Every time we push reform onto the agenda the bill get pocket veto'd in comity. Just look up the history of slots over the last 6 years.
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Old July 1, 2009, 07:09 PM   #14
maestro pistolero
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Why do you keep debating over these laws? Do you really think any of that matters? You are debating over a pine needle in a pine forest.
I'm beginning to see a pattern in your posts. When you grow up, maybe the fine points of your oh so subtle critique will come clear.
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Old July 1, 2009, 10:17 PM   #15
Bud Helms
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Quote:
Now that the US High court has ruled that the second amendment is a personal civil right, How do states like Maryland get away with using misdemeanors to remove peoples rights?
Can you think of any other situation in which personal civil rights are limited or removed based on a misdemeanor?

How does the federal government get away with removing your Second Amendment rights based on a domestic violence misdemeanor? (Lautenberg)
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