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Old April 16, 2013, 03:41 PM   #201
JimDandy
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Here it is.. it's in forma pauperis

This is when how you qualify

And this is when you get the lawyer

Quote:
(A) is charged with a felony or a Class A misdemeanor
Quote:
(F) is subject to a mental condition hearing under chapter 313 of this title;
Quote:
(H) is entitled to appointment of counsel under the sixth amendment to the Constitution;
(I) faces loss of liberty in a case, and Federal law requires the appointment of counsel; or
(J) is entitled to the appointment of counsel under section 4109 of this title.
And finally:

Quote:
(2) Whenever the United States magistrate judge or the court determines that the interests of justice so require, representation may be provided for any financially eligible person who—
(A) is charged with a Class B or C misdemeanor, or an infraction for which a sentence to confinement is authorized; or
(B) is seeking relief under section 2241, 2254, or 2255 of title 28.
These all seem like several different roads to getting a lawyer to defend you against anything that would cause you to be a prohibited person for the vast majority of us.
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Old April 16, 2013, 03:44 PM   #202
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I'd also like to clarify something else about lawsuits against the government. I've never defended the federal government, but I've spent the better part of the last decade defending municipal officers. There's a whole separate discussion about sovereign immunity and qualified immunity that would need to be sorted out before any plaintiff can get money damages, and that's a whole separate question from whether a plaintiff can get a declaratory judgment that a law is unconstitutional.
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Old April 16, 2013, 03:44 PM   #203
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Spats, you said "in forma pauperis"
Quote:
...doesn't guarantee a lawyer, but it allows an indigent Plaintiff access to the court system without payment of fees.
In your experience, how well equipped are most of those who can't afford a lawyer, to represent themselves in a court case against the government? Waiving of filing fees simply allows them to represent themselves without paying court costs, if I understand you correctly.
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Old April 16, 2013, 03:50 PM   #204
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I resist the notion that I have reduced the principal in the proposal to an absurdity
You are comparing a blatant 1A suppression to the process to redress and contest a clerical error- in the "case" we're discussing the faulty FTA for an ex-wife who did not receive her summons in the mail to demonstrate that fixing it after the fact is not a perfect solution to preventing it beforehand.

Quote:
In the first instance, it looks like the government gets to suppress your letter until after a court determination that it's OK to publish. In your example JD, there's a no-nock warrant, so a court has gotten involved prior to the execution of the warrant.
And one cannot go to a judge, and get.. here I may get it backwards between TRO's and Injunctive Relief but I believe it's- Injunctive Relief prohibiting the State from suppressing the letter with the likely outcome that they'll be found violating my constitutional right to publish?
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Old April 16, 2013, 03:52 PM   #205
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sorted out before any plaintiff can get money damages, and that's a whole separate question from whether a plaintiff can get a declaratory judgment that a law is unconstitutional.
Oh ya! That's further down the rabbit hole than we need to go for the quasi-hypothetical discussion of fixing a bad prohibited person designation.
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Old April 16, 2013, 03:53 PM   #206
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JimDandy, what you seem not to grasp is that you are supporting a substantive shift in philosophy, from a paradigm where government has to justify its infringements against citizens prior to any infringement of rights, to one where citizens have to prove, post-infringement, that their rights have been infringed.

This is a major shift.

When Orwell described future society in 1984 and Animal Farm, he was offering a warning, not a blueprint.
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Old April 16, 2013, 03:57 PM   #207
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Quote:
Originally Posted by JD
You are comparing a blatant 1A suppression to the process to redress and contest a clerical error- in the "case" we're discussing the faulty FTA for an ex-wife who did not receive her summons in the mail to demonstrate that fixing it after the fact is not a perfect solution to preventing it beforehand.
I am comparing a prior restraint on your right of free speech to a prior restraint on your ability to purchase a firearm.

I agree that in both instances the remedy of later litigation is not a perfect way to maintain the constitutional protection of the right.

Quote:
Originally Posted by JD
And one cannot go to a judge, and get.. here I may get it backwards between TRO's and Injunctive Relief but I believe it's- Injunctive Relief prohibiting the State from suppressing the letter with the likely outcome that they'll be found violating my constitutional right to publish?
I think you have the right idea in that injunctive relief would be the consequence of a successful process that begins with a temporary restraining order.

However, we do not generally viewed that as an excuse for the federal government to engage in prior restraint of speech (the Pentagon papers case was a rare exception and one that occurred with the cooperation of the publisher involved). Instead, we prohibit the federal government from violating the First Amendment in the first place.
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Old April 16, 2013, 03:57 PM   #208
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Oh not at all. I was just saying there is a mechanism for when the government goes pear shaped and screws up. It's going to happen. That doesn't mean we shouldn't let them do something,- just because someone- eventually, somewhere, some time, is going to boot the ball.
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Old April 16, 2013, 03:58 PM   #209
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Yeah, I realize that the term I used was a little different than JD's, but I knew what he meant by it. So maybe he's got the term "close," if not exactly "right." He's still got the right idea.

JD, all of those that you've named are criminal or habeas statutes, if I remember correctly. IOW, they're all, well, sort of right. They provide an attorney, but the're for criminal-related stuff. (Habeas is a whole different rabbit hole that I don't care to go down. It is its own breed of beast.) I can't name the statute for you, but there are other provisions to allow an indigent to sue officialls civilly using IFP.

Quote:
Originally Posted by MLeake
In your experience, how well equipped are most of those who can't afford a lawyer, to represent themselves in a court case against the government? Waiving of filing fees simply allows them to represent themselves without paying court costs, if I understand you correctly.
How well equipped? Not particularly well. (Though I have met some pretty impressive jailhouse lawyers.) It rarely takes long for them to figure out how to draft a Motion for Appointment of Counsel, though. If their case is very complex (or egregious), the court will appoint them counsel. Judges will also soft-pitch them a few things, or create a questionnaire so that they don't have to know the ins and outs of statutory law.
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Old April 16, 2013, 04:03 PM   #210
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To clear some up:

I see very little difference between applying the NICS/4473 process exactly as it is now on private(retail) sales at a store to private(secondhand) sales between two non licensees- which use a FFL as a middleman.

Whether you think it's right or wrong, I haven't seen anyone on either side come up with a convincing legal argument why retail sales aren't private sales, or why they're interstate trade (under the current definition) and a person to person sale is not.

The NICS system is not perfect. But any false positives that arise there with a person to person sale will arise in a retail store.

Any false positives in either location would still provide the same mechanism for redress.
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Old April 16, 2013, 04:07 PM   #211
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Quote:
Originally Posted by JimDandy
Whether you think it's right or wrong, I haven't seen anyone on either side come up with a convincing legal argument why retail sales aren't private sales, or why they're interstate trade (under the current definition) and a person to person sale is not.
Well, how's this for a hypertheoretical theory: In the case of an FFL sale, and assuming that the gun was made in, or traveled through, States other than the one in which it is being sold, the firearm is still in the stream of interstate commerce at the time of sale, whereas in a person-to-person intrastate sale, the fiream has left the stream of interstate commerce. In the case of a person-to-person, interstate sale, the firearm is once again being placed into the stream of interstate commerce, subject to Congressional regulation.

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Old April 16, 2013, 04:09 PM   #212
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Don't they consider the firearm to have never LEFT the Interstate commerce stream? As the money from the sale buys another stock item at wholesale, which paid for the worker to mine the minerals? Interstate Commerce isn't just the transaction, else Miller never would have been convicted- he didn't sell the shotgun, he just took it across state lines.
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Old April 16, 2013, 04:11 PM   #213
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Quote:
Originally Posted by JD
I see very little difference between applying the NICS/4473 process exactly as it is now on private(retail) sales at a store to private(secondhand) sales between two non licensees- which use a FFL as a middleman.

Whether you think it's right or wrong, I haven't seen anyone on either side come up with a convincing legal argument why retail sales aren't private sales, or why they're interstate trade (under the current definition) and a person to person sale is not.
When you purchase from a store, you are purchasing from a federal licensee. The federal government has some authority to regulate its licensees. The purchase at a store is a two-party transaction. Both parties, the seller and the buyer, are necessarily present for that transaction.

Where is the federal authority to regulate the conduct of an individual who is not a federal licensee? If you require two non-licensees to work through and FFL, you have not only expanded federal authority to cover non-licensees, you have also converted that transaction into a three-party transaction. A three party transaction is significantly more complex to arrange than a two-party transaction. It inevitably also includes additional costs.
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Old April 16, 2013, 04:15 PM   #214
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Quote:
Originally Posted by JimDandy
Don't they consider the firearm to have never LEFT the Interstate commerce stream? As the money from the sale buys another stock item at wholesale, which paid for the worker to mine the minerals?
I was just pulling a theory out of my backside, JD. I'm not sure who the "they" is in your question. However, under that line of thinking, EVERYTHING is subject to Commerce Clause regulation by the fed gov't.

Quote:
Originally Posted by JimDandy
Interstate Commerce isn't just the transaction, else Miller never would have been convicted- he didn't sell the shotgun, he just took it across state lines.
Yes, at that point, Miller is carrying the shotgun in interstate commerce himself. Interstate movement, not just commercial transactions.
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Old April 16, 2013, 04:17 PM   #215
JimDandy
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I realize I'm circling back around but...
Quote:
The federal government has some authority to regulate its licensees.
Where do they get the authority to issue the license they're regulating?
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Old April 16, 2013, 04:17 PM   #216
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From the Commerce Clause.
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Old April 16, 2013, 04:19 PM   #217
JimDandy
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I was just pulling a theory out of my backside, JD. I'm not sure who the "they" is in your question. However, under that line of thinking, EVERYTHING is subject to Commerce Clause regulation by the fed gov't.
Almost everything. And, while admitting that's part of what rankles sooooo many people, that's the world we live in too. Just because they don't choose to regulate the shoelaces that travel from the plant in Athens Georgia, to the place they get the plastic tips in Smyrna, doesn't mean they don't have the authority to do so.
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Old April 16, 2013, 04:22 PM   #218
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You'll get no argument out of me on that, JD. The last half-century has seen an absolute explosion of Commerce Clause based expansion of federal power. But if you'll look around, you'll see more and more states passing "Firearms Protection Acts" under which firearms produced wholly in-state, and kept there, are supposed to be (more) shielded from federal regulation. Whether or not any of those laws hold up, however, is an entirely separate question.
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Old April 16, 2013, 04:22 PM   #219
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Quote:
Originally Posted by Spats
However, under that line of thinking, EVERYTHING is subject to Commerce Clause regulation by the fed gov't.
And that's exactly my point.

Current interpretation seems to be that anything that is EVER involved in interstate commerce is FOREVER in interstate commerce and anything that MIGHT have been in interstate commerce if it hadn't NOT been "effects" interstate commerce so it is ALSO covered by the Commerce Clause.

That's an argument that is so preposterous that it should be laughable... but instead it's "the law of the land".

It makes no sense whatsoever and it CERTAINLY makes no sense when applied to the idea of background checks.

They might as well say that someone who buys a car has to pass an FBI drug test because the car came from interstate commerce.

There could be 10's of thousands of examples that anyone in their right mind would find absurd, yet it somehow "makes sense" in this case.
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Old April 16, 2013, 04:26 PM   #220
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There could be 10's of thousands of examples that anyone in their right mind would find absurd, yet it somehow "makes sense" in this case.
I don't like a lot of things that make sense. But I accept them as reality, and work around, over, and through them as necessary.
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Old April 16, 2013, 04:39 PM   #221
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But you aren't working around, over, and through them - you are advocating adding to the mess.

Just because we have some regulation does not mean that we should accept more, but that appears to be your premise.
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Old April 16, 2013, 05:10 PM   #222
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Quote:
Current interpretation seems to be that anything that is EVER involved in interstate commerce is FOREVER in interstate commerce and anything that MIGHT have been in interstate commerce if it hadn't NOT been "effects" interstate commerce so it is ALSO covered by the Commerce Clause.

That's an argument that is so preposterous that it should be laughable... but instead it's "the law of the land".
It's far worse than that. In Wickard v. Filburn, SCOTUS held that a good which never entered the commerce stream, but could, is subject to commerce clause regulation. Roscoe Filburn (gotta love the name) was a wheat farmer who, during WWII, grew more than his "share" and was forced not only to destroy the excess but to pay a fine as well, even though not one grain of wheat ever crossed a state line. In fact, the excess never entered the stream of commerce - it was all consumed by Filburn and his family. I don't doubt that if a case presented itself, the good itself could be entirely hypothetical.

In Gonzalez v. Raich, the SCOTUS used similar logic to rule that Congress constitutionally acted within the scope of the commerce clause by essentially banning the possession of marijuana (even though Raich didn't sell so much as a leaf across state lines).

The only conclusion I can draw is that SCOTUS is saying that government interest alone is enough to cross the commerce clause threshold with respect to any economic transaction - and that should frighten the bejeezus out of all of us.


==============
p.s. Carter v. Carter Coal Co. is an interesting read for those of you arguing over the point of a product's entry into the interstate commerce stream. It will no doubt be cited if any of these locally made/sold firearms laws comes up.

Last edited by csmsss; April 16, 2013 at 05:29 PM.
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Old April 16, 2013, 05:21 PM   #223
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But you aren't working around, over, and through them - you are advocating adding to the mess.

Just because we have some regulation does not mean that we should accept more, but that appears to be your premise.
It is true, I'm not opposed, and even mildly in favor of extending the NICS process to non-store sales for myriad reasons...

Equal protection- Why do stores suffer under more burden than second hand sellers?

There's no real difference between a retail and second hand sale. as far as anything covered by such an extension- obviously warranty, etc would be different.

Of all the gun control legislation that's been suggested over the years, the only one that appears to have had any measurable effect is background checks.
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Old April 16, 2013, 05:30 PM   #224
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Originally Posted by JimDandy
There's no real difference between a retail and second hand sale. as far as anything covered by such an extension- obviously warranty, etc would be different.
No? If you give a bag of peppers out of your garden to your neighbor, should you be held to the same food safety standards as the grocery store? Health department inspections? Temperature controls?

How many examples does it take?

This is (should be) such a silly concept. All the more depressing that so many folks can't see it.

The current background check system is already unconstitutional.

The only thing that seems more ludicrous that defending it under the commerce clause is thinking that you can make it "fair" by further extending an already unconstitutional principle.
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Old April 16, 2013, 05:47 PM   #225
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Quote:
No? If you give a bag of peppers out of your garden to your neighbor, should you be held to the same food safety standards as the grocery store? Health department inspections? Temperature controls?
The common-sense answer is not just no but hell no. But the answer in light of Wickard v. Filburn is...well..yes indeedy. Better make sure those peppers have no e. coli and that your fridges hold a nice constant temp!
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