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Old April 19, 2013, 10:46 AM   #451
Spats McGee
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Quote:
Originally Posted by JimDandy
I was under the impression it was a hodge podge. Some aspects of government had qualified immunity, some didn't. Part of this is tickling the back of my brain over the Watergate scandal.. some of those guys weren't prosecuted because they had a reasonable belief what they were doing was lawful, or some such...
It's pretty well settled that gov't officials have immunity. The hodgepodge ares are: (1) what kind of immunity; and (2) what the standards are.

A gov't official could have:
  • sovereign immunity
  • qualified immunity
  • prosecutorial immunity
  • judicial immunity
  • legislative immunity
  • etc

It used to be that there was a "good faith" element to qualified immunity. That's now gone (in the 8th circuit, anyway), and there's a reasonableness immunity. You also have to look at whether the right violated was "clearly established" at the time of violation.

So yeah, I can see how it might look like a hodgepodge.
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Old April 19, 2013, 11:04 AM   #452
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I'm starting to think I should just audit your class for a couple years. Of course, given how often I see people screaming the mods took away their free speech right, and so forth, I think everybody should "audit" your class in high school as part of the curriculum. We don't seem to have enough knowledge of our own basic laws as we should.
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Old April 19, 2013, 11:07 AM   #453
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Actually, we only touch on that stuff in my class. You should see my students' eyes when I tell them: "Yeah, the A5 says that you have to indict by Grand Jury, but that part doesn't apply to Arkansas."
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Old April 19, 2013, 11:11 AM   #454
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It hasn't been incorporated, though I think at least most of the rest of the 5A has been. I think all of the 1A, 2A, and 4A have been. The 3A has not been, but it's a pretty much forgotten amendment right now. The only way it would be ripe for incorporation is if someone complains at being forced to house Natl. Guard during a Hurricane Sandy type disaster event.
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Old April 19, 2013, 11:18 AM   #455
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Quote:
Originally Posted by JimDandy
It hasn't been incorporated, though I think at least most of the rest of the 5A has been. I think all of the 1A, 2A, and 4A have been. The 3A has not been, but it's a pretty much forgotten amendment right now. The only way it would be ripe for incorporation is if someone complains at being forced to house Natl. Guard during a Hurricane Sandy type disaster event.
BINGO. The A5 provisions are currently a great way for me to teach students about incorporation, because it has only partially been incorporated. (The whole self-incrimination part has been incorporated, for example.)
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Old April 19, 2013, 11:34 AM   #456
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Actually let me back track, the requirements for a warrant may not be incorporated either. You may not have to affirm by oath or affidavit everywhere, I'd have to look that up.

Of course all of this sidetracks us from the point I was making, in that too many of us don't really know what our rights are.

Or the actual conversation we were having so without further ado:
Quote:
Clearly, it can't be just SCOTUS. It requires a change in the way that the law is understood. I'm not saying it's going to happen.
Oh I think it'll happen somewhat. It already is. There's a pendulum to politics, and a pendulum to the courts. They've already started to narrow the commerce clause. That trend may or may not continue, I don't know. I think it's in our best interests to engage Mr. Gura, M. Tresmond, and others to assist that process as much as they directly challenge firearms specific laws.
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Old April 19, 2013, 12:38 PM   #457
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I hope you're right, Jim, but this is only one issues and there are hundreds of others that are in logically/legally worse places.

The gun rights side of the commerce clause doesn't even reach "tip of the iceberg" status. It's more like a snowflake in a blizzard.
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Old April 19, 2013, 02:44 PM   #458
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I'm not willing to go THAT far for the State. They've collectively employed more lawyers than Dewey, Cheetum, and Howe for centuries- which isn't as far a reason as judicial action is the only form of redress for an individual in many of these cases.
To add one point to Spats McGee's post on immunity, the concept of sovereign immunity for state governments is the basis for the 11th Amendment which was passed to keep states from getting haled into court without their permission. It is subject to exceptions. For example, it does not apply to political subdivisions like cities. A federal court can also order a state officer, by name, to take some action or refrain from taking some action. It can't normally touch the state's treasury unless the state waives its immunity.
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Old April 19, 2013, 03:06 PM   #459
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Is that why in cases where the Federal Government is the respondent, it's usually the Attorney General or other Cabinet Officer, rather than the United States, but when the Federal Government is the appellant the case is usually the United States v ______?
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Old April 19, 2013, 03:36 PM   #460
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Quote:
Originally Posted by KyJim
To add one point to Spats McGee's post on immunity, the concept of sovereign immunity for state governments is the basis for the 11th Amendment which was passed to keep states from getting haled into court without their permission. It is subject to exceptions. For example, it does not apply to political subdivisions like cities. A federal court can also order a state officer, by name, to take some action or refrain from taking some action. It can't normally touch the state's treasury unless the state waives its immunity.
Aaaand we're off down the rabbithole!

Cities themselves do not have the immunity. However, their agents and officers may have some type of immunity (for example, a city police officer may have qualified immunity, or a city prosecutor might have prosecutorial immunity). However, a municipality cannot be held liable for a constitutional violation unless it the plaintiff can show that the city had a policy, practice or custom that led to a constitutional violation. See Monell v. Dept of Human Services.

Further, at least in the 8th Circuit, cities are immune from punitive damages. That's why you see things like "Plaintiff Joe Choirboy vs. Chief Billy Bob Knuckledragger, in his individual and official capacities." The Plaintiff is suing two ways: (a) official capacity (deeper pockets, but have to prove policy, practice or custom) and (b) individual capacity (opens the door on punitive damages).
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Old April 19, 2013, 04:22 PM   #461
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Well cities and other political subdivisions don't have immunity because they're not a sovereign entity, not?
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Old April 19, 2013, 04:26 PM   #462
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Yes.
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Old April 19, 2013, 08:31 PM   #463
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Is that why in cases where the Federal Government is the respondent, it's usually the Attorney General or other Cabinet Officer, rather than the United States, but when the Federal Government is the appellant the case is usually the United States v ______?
The short answer is yes, though sovereign immunity of the federal government is not based on the 11th Amendment.
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Old April 19, 2013, 10:34 PM   #464
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Yeah, it's inevitable.

Eventually the LEO's will get bad information.

Eventually someone will transpose two digits on a search warrant, mix up
street, avenue, boulevard, etc.

Eventually while apprehending one criminal that's a danger for society, bystanders wlll be shot, by one side or the other.

Eventually, the deaf man walking down the street will be tackled, assaulted, and detained when he doesn't respond in any way to the challenge of the law enforcement officer- because he was literally deaf to those orders.

We can argue theory all day long. Eventually theory has to be applied to reality. People make mistakes. It's in the nature of people. Being forcibly detained because you couldn't hear the LEO over the music in your earbuds doesn't rise to anywhere NEAR the same level of "mens rea" as using a phone book in an interrogation room to beat a confession out of someone.
I agree that mistakes are bound to happen. But if laws were more clearly made, lines more clearly drawn, and punishment more swift and sure, both for those who break laws, and for the occasional "mistake", I think we would see a lot fewer laws broken on purpose, and a lot fewer laws broken by "mistake" or other such grievances laid to the shoulders of honest men without reason.

The problem is, criminals do not fear being criminals, and "honest" men who would make "mistakes" against honest men all too often do not fear repercussion either. Else why would we have supposed representatives and others in government who do not lend ear to the people, or fear what will happen if they don't?

You can claim you are acting in my best interest all you want, or that it's for the children, or my own good, but it's hard to believe you when you are taking things that belong to me, and trampling my rights. I can never see such actions as being for my own good. God created me, and gave me my own rights, and my own ability to decide what is good for me. It just so happens that a great deal of those rights were recognized by our brilliant founders, and enshrined in our foundational documents. I will not see them stripped from hand, or give them up willingly for false promises of compromise that is never, ever compromise, only control, and a tighter leash.
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Old April 19, 2013, 10:42 PM   #465
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Who exactly did you fight that was threatening the BoR in the USA?
Or, do you mean, you served in the military, in combat, for some President's most likely ill-advised and even questionably ethical war(s) like I did?
When I took an oath, I swore that I would protect and defend the Constitution first and foremost, before any man or entity that would seek to trample it, whether they be foreign or American. I see people all around me, especially in our government, that enjoy the rights and privileges of being named American, yet seek boldly to deny others of those same basic rights. To me that makes them American's in name only, and I really have no use for anyone who plays games with my freedom, or the rights and freedoms of others that myself, and many others fought for. Do you remember your oath? Mine went something like this:

I, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.

Pay particular attention to the bolded section, and notice it comes first, and therefor takes precedence over the rest, if the rest threaten the first. Do ponder that won't you?
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Old April 19, 2013, 10:44 PM   #466
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I agree that infractions of civil liberties are inevitable. The question of how to handle them legally remains. One answer is to legally sanction those violations, building exceptions into the law. ... Another answer is to be aware that states will infringe civil liberties, but not provide the cover of law for those infringements.
Well said.
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Old April 22, 2013, 01:12 PM   #467
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I'm a bit late on this, I've been gone for a while, just found my way back. But in response tothe OP

Quote:
I'm going to pre-empt this with some caveats.
1) I've been around firearms all my life
2) I was military, now work for LE
3) I own and will always
4) I am not a democrat, or progressive, I'm an unaffiliated independent who thinks both parties are FUBAR

However, I've been a little disturbed by some people refusing any way shape or form of background checks. Personally, I like selling to someone I KNOW has been at least minimally vetted. The system is far from perfect, granted, but it is a much better system than saying something like you can sniff out a bad guy during your 5 minute meeting with cash in hand and deny the sale based on your gut.

I personally believe that, without any associated government record keeping, continued use of 4473 (and prosecution of liars on the form) is a good thing. It is responsible gun ownership... how I was raised.

To sell to someone without this, in my opinion, is a behavior that should be checked. You simply cannot know if the person is a sociopath.

Force them to go to the black market, which they will always be able too... but when they do, and they go kill people, and it comes back that the gun wasn't legally purchased, it helps our cause... because the media can't say, "look how easy it is to buy guns!".

Lanza actually WAS stopped by gun control. He tried to buy in CT two days before the massacre, and was turned down.
The problem? His mother was an irresponsible creature who left guns within easy reach of an autistic kid (basically Asperger's, which is a form of Autism) with other serious problems who was obsessed with guns, violent games, and his being turned down for military service. Not good.

In 2002-2003, over 120k form 4473s led to rejection. This is a good thing. The DoJ only prosecuted less than 1% of them, however, which is a bad thing. At a minimum, we know some of those people went on to get guns, though they shouldn't have them... but, wasn't it good that all of them didn't get them? Can we work on the system and make it good, so less killings are likely, which will create better statistics to boost our argument for future occurences?

I think the knee-jerk "no compromise" position is a classic case of cutting off one's nose despite one's face.

Discuss...
Can 4473, expanded to all transfers between strangers, be ok under the right conditions?
I've started a grass roots idea that so far goes something like this
Quote:
The biggest hurdle to passing new background checks for gun owners, is the risk of that data being used to compile a list of all gun owners. Which brings the inevitable attempt somewhere down the line of forced confiscation, given that the gun grabbing party will have a list of targets to go after. As I see it there is only one way to avoid this - remove the connection of background check from the action of gun purchasing. This means doing a background check on EVERYONE - once.

This can be accomplished by doing an NICS background check on each and every person and providing proof of pass/fail status. I would propose that this be done at the next renewal date for the person operators license or photo ID. The status of the NICS check would be posted on the photo ID - that status will not change unless there is legal action toward that person - in the case of that legal action, the photo ID would be updated IMMEDIATELY, so it would remain up to date and current. At that point ALL firearm sales would have the requirement that the seller check the photo ID of the buyer, not just for verification that the buyer resides in the same state (because interstate sales will still require the use of an FFL, due to the interstate commerce clause), but also to verify that the CURRENT status of the last NICS check is a a Pass and the buyer is a lawful person to sell to.

Problem solved - no potentially abusable database created.

The only people that could possibly have a problem with this would be criminals who do not wish to be found, and those whose real purpose was the database they wished to abuse in the first place.
Rip away legal eagles.
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Old April 22, 2013, 01:24 PM   #468
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Welcome back, and doesn't Twitter do the strangest things?

Quote:
The biggest hurdle to passing new background checks for gun owners, is the risk of that data being used to compile a list of all gun owners. Which brings the inevitable attempt somewhere down the line of forced confiscation, given that the gun grabbing party will have a list of targets to go after. As I see it there is only one way to avoid this - remove the connection of background check from the action of gun purchasing. This means doing a background check on EVERYONE - once.
Many mental diseases and defects show up later in life. College ages and beyond. A BG check at 16 or 18 would be less likely to catch those, as Adjudication requires them to show up, and dramatically so, first. These would also have to be updated with your criminal activity provision below

Quote:
This can be accomplished by doing an NICS background check on each and every person and providing proof of pass/fail status. I would propose that this be done at the next renewal date for the person operators license or photo ID. The status of the NICS check would be posted on the photo ID - that status will not change unless there is legal action toward that person - in the case of that legal action, the photo ID would be updated IMMEDIATELY, so it would remain up to date and current.
The problem with this, is that the states have a hard enough time keeping up with removing actual firearms from those who end up with a firearms disability, let alone the ones who would need an updated license and don't have any interest in firearms.

You're also opening up HIPPA concerns for the general public, if someone is in treatment for a mental issue that provides a firearms disability, but not confinement for treatment... the government needs to know it, not the server bringing you a beer.


Quote:
At that point ALL firearm sales would have the requirement that the seller check the photo ID of the buyer, not just for verification that the buyer resides in the same state (because interstate sales will still require the use of an FFL, due to the interstate commerce clause), but also to verify that the CURRENT status of the last NICS check is a a Pass and the buyer is a lawful person to sell to.
Without an active participation element, a forged document is all that is necessary. The best pre-screened suggestion I've seen was to print out a certificate with an authorization number, and the seller dials a NICS type number, reads off the Authorization number, verifies things like name, address, height, weight, and so on, but not financially sensitive info like SSN.
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Old April 22, 2013, 01:26 PM   #469
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This can be accomplished by doing an NICS background check on each and every person and providing proof of pass/fail status. I would propose that this be done at the next renewal date for the person operators license or photo ID.
Privacy advocates would take issue with this. So would I. It's needlessly intrusive from the standpoint of those who have no interest in firearms ownership. Even if it didn't run afoul of the law, it would be wildly unpopular.

And yet again, why bother? We went for over two centuries without background checks. The NICS system hasn't been proven to reduce the number of guns in the hands of criminals, nor has it been shown to have any impact on crimes committed with guns.
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Old April 22, 2013, 01:37 PM   #470
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LOL.
That's one of the reasons for putting it out this way. It's a "what's good for the goose is good for the gander" type of argument. If it is so "unintrusive" to make prospective gun owners go through it, then the rest of the "potential" Militia (All persons of able body capable of bearing arms in case of emergency) shouldn't have reason to object to it. That particularly applies to those who push so hard for it.

For most of those 2 previous centuries, people lived in close enough knit communities, that everyone pretty much knew everyone else within their sphere of exposure. So anyone who was selling a gun would have known that billy bob was just a bit "not right" and would have first contacted the head of that family to find out why he needed one.
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Old April 22, 2013, 01:54 PM   #471
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Originally Posted by Vibe
The only people that could possibly have a problem with this would be criminals who do not wish to be found, and those whose real purpose was the database they wished to abuse in the first place.
Hmmm, . . . untrue. I've had my background checked for various reasons at least 5 times in the past 10 years. I'm neither a "criminal who do[es] not wish to be found," nor one who wishes to abuse such a database. Nonetheless, I object. This proposeal is one short step to being asked for "papers" on the street.
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Old April 22, 2013, 01:57 PM   #472
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It's immensely intrusive. Moreover, the NICS system isn't adequately funded, or enforced, as it stands; requiring the entire population to be checked by the system, and their records to be kept up to date, would be very expensive indeed.
Quote:
The only people that could possibly have a problem with this would be criminals who do not wish to be found, and those whose real purpose was the database they wished to abuse in the first place.
"The innocent have nothing to fear" is a line that's been used by governments for a very long time in order to justify restriction of rights, invasion of privacy, and denial of due process. Typically, the innocent find out that they did have something to fear, but by then the damage is done. For example, consider the U.S. government's 'no-fly' list for air travel: it's easy for a completely innocent person to be listed, and just about impossible to get off it.
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Old April 22, 2013, 02:01 PM   #473
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One would think we'd have enough identity theft victims on TFL to produce a fair number of skeptics, too.
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Old April 22, 2013, 02:07 PM   #474
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While I agree with you Spats, why must we have to go thought it each and every time, for each and every transaction (if certain parties have their way). Each time an NICS check is run, that's one more opportunity for some minimum wage part timer answering the phone to transpose a letter or number and hit you or I with a Deny response. Eventually it will happen.
As for the overwhelming load - I'm not sure I'm buying that excuse either. The difference between running NICS checks on 1/5 of the population 3 to 20 times each in the course of a few years is actually more than running the entire population over a 5 year period. After all, if we are to go by what the Founding Fathers discussed in the Federalist Papers, and enumerated in the 2nd Amendment - the intent was for every man to be armed and ready to come tothe call of his country. If there are some who, for one reason or another should not be burdened with that - for whatever reason (and I am not proposing that that reason be displayed on the photo ID) I think the average person should be able to be responsibly informed. But I also happen to think that if you can't be trusted with a gun, than you shouldn't be trusted to hold public office either....But that's just me.
I'm just looking for one line
"NICS = Pass" or "NICS = Deny" & there would be no "delay" nor obligation to explain.
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