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Old August 6, 2010, 10:55 AM   #1
Bartholomew Roberts
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Seventh Circuit Rejects As-Applied Challenge to Felon-in-Possession Charge on 2A

The Sentencing Law and Policy Blog covers the U. S. vs. Williams decision.

The decision is probably no surprise given the en banc opinion in Skoien; but Sentencing Law and Policy noted that Page 16 of the decision contained a suggestion that the 7th Circuit might look differently at a non-violent felon who was charged with felon in possession. Also of interest was that retired Justice Sandra Day O'Connor was a part of the three judge panel (although she did not write the decision).

Last edited by Bartholomew Roberts; August 6, 2010 at 12:51 PM. Reason: Fix links
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Old August 6, 2010, 11:47 AM   #2
DogoDon
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Your links are messed up.

DD
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Old August 6, 2010, 11:51 AM   #3
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I would have been surprised if the Court had ruled in the felon's favor.
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Old August 9, 2010, 04:01 PM   #4
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So, Skoien doesn't apply here because it considered the question of a misdemeanant, not a felon. However, the court still hears its echoes:

Quote:
But the government does not get a free pass simply because Congress has established a “categorical ban”; it still must prove that the ban is constitutional, a mandate that flows from Heller itself. Heller referred to felon disarmament bans only as “presumptively lawful,” which, by implication, means that there must exist the possibility that the ban could be unconstitutional in the face of an as-applied challenge. Therefore, putting the government through its paces in proving the constitutionality of § 922(g)(1) is only proper. [pp. 13-14]
Under their doctrine of "intermediate" scrutiny (and perhaps even strict scrutiny), the court finds that a ban on firearms possession by violent felons passes muster. Part of me agrees. According to the case, Williams had previously beaten a robbery victim so badly that the victim required 65 stitches [p. 15]. It doesn't look like he's mended his ways in the meantime.

In this case, the government's claim that a law is effective in keeping guns out of the hands like Mr. Williams pretty much constitutes a "strong showing."

This certainly isn't the kind of test case I want for § 922(g)(1), but lest we worry that the court is handing ammunition to the other side, they acknowledge the fact that a more suitable challenge may grow legs in the future:

Quote:
And although we recognize that § 922(g)(1) may be subject to an overbreadth challenge at some point because of its disqualification of all felons, including those who are non-violent, that is not the case for Williams. Even if the government may face a difficult burden of proving § 922(g)(1)’s “strong showing” in future cases, it certainly satisfies its burden in this case, where Williams challenges § 922(g)(1) as it was applied to him. Williams, as a violent felon, is not the ideal candidate to challenge the constitutionality of § 922(g)(1). [p. 16]
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Old August 9, 2010, 04:10 PM   #5
Bartholomew Roberts
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It strikes me that the panel opinion really didn't try too hard to reconcile the en banc decision in Skoien with their own comments regarding non-violent felons. Skoien certainly didn't seem to be a defendant on the lines of Williams; but the court seems to feel that both prohibitions are constitutional.
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Old August 9, 2010, 05:15 PM   #6
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Quote:
Originally Posted by Tom Servo
In this case, the government's claim that a law is effective in keeping guns out of the hands like Mr. Williams pretty much constitutes a "strong showing."
The government can claim whatever it wishes, but the facts conclusively demonstrate that convicted felons have no trouble whatsoever obtaining firearms within 24 to 48 hours of their release from prison. So how is the law prohibiting their possession in any way "effective"?
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Old August 9, 2010, 06:40 PM   #7
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felons

I was watching A you tube of Alan Gura discusing the heller desision, He made brief mention of too many crimes being elevated to felony status (creating lifelong restrictions and hardships). I don't believe he was talking about violent crimes though.
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Old August 9, 2010, 07:50 PM   #8
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Yep. The problem is this case and this plaintiff. Williams is a rather unpleasant man, and not too bright. I wouldn't want him owning guns, either.

A better case will be made by someone who is denied on the grounds of a non-violent felony. Imagine someone convicted of check fraud in 1978 who's lived a lawful life since, for example. Once the penalties have been paid, and the person has rehabilitated, then they should be able to have their rights restored.
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Old August 10, 2010, 07:14 AM   #9
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In Indiana if one has a non felony conviction as a minor that would have been a felony if they had been an adult one can qualify for an Indiana permit but not pass the instant background check at point of purchass. As I recall there are a couple of states that have simmilar laws.
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Old August 10, 2010, 01:05 PM   #10
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Quote:
He made brief mention of too many crimes being elevated to felony status (creating lifelong restrictions and hardships).
That's true, sometimes to the point of being ridiculous. E.G., in CA, it's a felony to carry OC without a permit, but a misdemeanor to carry a concealed firearm without a permit.

Other posters in other threads have chronicled examples of people sitting in their cars outside of Starbucks being arrested for felony theft of services because they were using Starbucks Wi-Fi signal without going into the store.
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