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Old April 23, 2013, 08:16 PM   #26
Vanya
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Yes, we are "twitchy" about this...

But I'm guessing that what we have here on your part, Come and take it, is just a misconception about the applicability of federal laws. While interstate commerce is the basis on which the federal government regulates firearms transactions, that doesn't mean that federal law only applies to a transaction that involves crossing a state line. If someone is a prohibited person in the eyes of the feds, it's illegal for her to possess a firearm. It doesn't matter if she never leaves the state, or how she acquires it -- even if it's borrowed for a day's shooting, it's a federal crime.

We may not like it, but that's the law... and TFL is a community of law-abiding firearms owners.
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Old April 23, 2013, 08:56 PM   #27
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Originally Posted by Come and take it.
Take it for what it is worth, but if the state she resides in has cleared her, than if she never plans to leave that state with a firearm or transfer that firearm out of state or does not purchase the firearm from out of state, than I don't see a problem.

Another way to look at this is that in a state that has cleared you, which also is a shall issue state. If you pass the states background check (which may include the NICS check) and pass the course, you are given the ccwp. Of which in many states you can purchase a gun using your permit without having to take a background check.

In such a situation nothing illegal is done, so long as you remain in the state and do not commute out of the state with that gun.

The feds have a lot more to worry about these days, like going door to door smashing in doors for peoples safety in the police state than to go after someone who has an arguable right to keep and bear arms.

Anyways a right that can be taken away is not a right.... it is a privelage. This is a solid fact and until gunowners in general realize that they are conditioned into believing that a right is just another word for privelage they can expect to one day be totally disarmed for one thing or another.

A lot of this also depends on the state the individual leaves in as well.
This is utterly and wholly incorrect. The applicable code section, 18 U.S.C. 922(g), states as follows:
Quote:
(g) It shall be unlawful for any person
(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
(2) who is a fugitive from justice;
(3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));
(4) who has been adjudicated as a mental defective or who has been committed to a mental institution; . . . .

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
At no point does it state that a prohibited person may possess a firearm "as long as he or she does not leave the state." The odds of prosecution may be low because "the feds have better things to do," but that does not make her possession of a firearm legal.
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Old April 23, 2013, 09:04 PM   #28
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Yes, we are "twitchy" about this...
Yeah, I was trying to let him down easy.

Quote:
or how she acquires it
In the interests of completeness I have come across an incredibly rare and difficult to achieve scenario where is is permissible, but it requires cooperating armed criminals, or "good guys" having a REALLY bad day in need of defense, an affirmative attempt to turn in the firearm immediately as soon as the prohibited person doesn't need it anymore. It's unlikely enough I doubt it happens more than once in a forever, but it's there.
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Old April 23, 2013, 09:13 PM   #29
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Quote:
Originally Posted by JimDandy
In the interests of completeness I have come across an incredibly rare and difficult to achieve scenario where is is permissible, but it requires cooperating armed criminals, or "good guys" having a REALLY bad day in need of defense, an affirmative attempt to turn in the firearm immediately as soon as the prohibited person doesn't need it anymore. It's unlikely enough I doubt it happens more than once in a forever, but it's there.
Have you actually found a case in which this occurred, where the defendant was charged but acquitted? If not, I suspect that this scenario really requires a sympathetic prosecutor, a credible-sounding defendant, and a decision not to prosecute. :skeptical:
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Old April 23, 2013, 09:15 PM   #30
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No, it was more of an Affirmative defense in the legislation or something. It was a while ago I saw it. Basically they had to pick up someone else's firearm during a bona fide emergency, use it, and turn it over to LEO's ASAP. I got the impression they had to basically call 911, tell the operator they needed an officer to come take possession right the heck now to prove they wanted to get rid of it.
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Old April 23, 2013, 09:19 PM   #31
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Was it federal or state legislation?
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Old April 23, 2013, 09:20 PM   #32
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I don't remember. It distracted me while I was reading something else. I finished reading one thing, saw this, and then went back to what I was after in the first place....
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Old April 23, 2013, 09:25 PM   #33
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A State would be perfectly within its rights to create a "safe harbor" of that sort. It would not automatically create a safe harbor from federal law, though.
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Old April 23, 2013, 09:57 PM   #34
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There have been such cases -- it seems to be pretty well established in Michigan, for example, that self-defense trumps a felon-in-possession charge.
For example:
In People v. Goree, the defendant presented evidence that he shot his neighbor in self-defense, and the jury found him not guilty of two assault charges. But after the trial court instructed the jury that self-defense cannot excuse a felony-firearm offense, the jury found the defendant guilty of the felony-firearm charge. Felony-firearm prohibits possession of a firearm during the commission of a crime. The Court of Appeals reversed and remanded, concluding that the trial court erred when it instructed the jury that self-defense cannot excuse a felony-firearm offense. The Court of Appeals relied on Michigan Supreme Court precedent that held that self-defense applies to the charge of being a felon in possession of a firearm – in that case the defendant took the weapon from an assailant and then shot him in self-defense. In this case, because the defendant presented evidence from which a jury could conclude – and in fact did conclude – that he acted in self-defense when he used his weapon, the trial court’s erroneous instruction was prejudicial.
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Old April 23, 2013, 10:16 PM   #35
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So this woman (who according to federal law can no longer bear arms) will do what? when someone enters her home to attack her.

It will come down to a person to decide whether they wish to protect their life or submit to authority. The jews in the Warsaw Ghetto had to make those choices too.

Maybe we have finally come to the day when we can really say we don't need a weapon to protect our life... because the government can take care of us.

I mean if a person who has never went through due process in court before having her "privelage" removed doesn't need a firearm to protect her life, why should we need one to protect ours?

But of course none of us here do anything illegal. We all submit to authority.
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Old April 23, 2013, 10:23 PM   #36
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She has had due process. She was adjudicated mentally deficient, and involuntarily committed, according to the OP. That's due process.

She MAY have an appeals process to go through.

Until she does, There are other avenues of personal defense other than firearms.

Everyone here breaks a law somewhere. Be it Jaywalking, or "pinking" a red light or whatever. We just don't advocate it to others on the forum.
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Old April 23, 2013, 10:44 PM   #37
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Will her options protect her as well or better than a gun?
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Old April 24, 2013, 06:45 AM   #38
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I actually recently had a discussion about a common law right of SD vs. felon-in-possession charges. I will try to find time to dig around later and see if I can uncover cases of that nature. However, I'm not sure People v. Goree says what you think it does, Vanya. The actual opinion can be found here, and I gave it a very quick read this morning. It appears that the charge was not "felon in possession of a firearm," but rather "possession of a firearm during the commission of a felony." MCL 750.227b. Specifically, the alleged felony of shooting his neighbor, which the jury found to be SD.

Come and take it., we started with a discussion of what this woman may legally do. You took the following position:
Quote:
Originally Posted by Come and take it.
. . . . if the state she resides in has cleared her, than if she never plans to leave that state with a firearm or transfer that firearm out of state or does not purchase the firearm from out of state, than I don't see a problem. . . . .If you pass the states background check . . . .and pass the [cwp] course, you are given the ccwp. . . . .In such a situation nothing illegal is done, so long as you remain in the state and do not commute out of the state with that gun.
First of all, that's entirely incorrect. Second, the OP has stated that his sister was initially denied her CWP because of the commitment. (It appears that subsequent thereto, the sister had her state-level rights restored.)

The new position that you've taken appears to be one that her possession of a firearm is justifiable or defensible, based on a possibility of future harm.
Quote:
Originally Posted by Come and take it.
So this woman (who according to federal law can no longer bear arms) will do what? when someone enters her home to attack her.
The proposition that "a prohibited person might justifiably possess a weapon, taken from an intruder, long enough to defend herself," is entirely different from the proposition that "a prohibited person may justifiably go purchase a firearm, and keep it at home or on his or her person, so long as she doesn't leave the state in which she resides."

Do you have any legal basis for the proposition that it would be legal for her to keep a firearm? Statute? Caselaw?
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Old April 24, 2013, 09:03 AM   #39
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Well, this really tears up the proposition that the NICS system does not interfere with rights, since due process will fix all problems.... The state which put her on the list in the first place has restored her rights, but the feds have no working mechanism for restoration.

And people think this is ok?
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Old April 24, 2013, 09:06 AM   #40
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I'm still not sure she has to have the Feds "restore" her rights, so much as go through the appeals process, and have the NICS team check with her state.

As has been mentioned previously,- the State of residence applied and removed a firearms disability. The reason it's apparently not updated in the NICS database is the state not reporting to NICS. That's a problem with the State government, not the Feds.
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Old April 24, 2013, 09:08 AM   #41
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So this woman (who according to federal law can no longer bear arms) will do what? when someone enters her home to attack her.
For home defense, percussion firearms might be an option for her. It would really depend on state law, though.
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Old April 24, 2013, 10:15 AM   #42
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Well, according to our TFL lawyers, she would stand a serious risk of committing a federal felony if she were to take possession of a firearm at this time.

That implies a greater problem than you claim, JimDandy.
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Old April 24, 2013, 10:25 AM   #43
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Well, according to our TFL lawyers, she would stand a serious risk of committing a federal felony if she were to take possession of a firearm at this time.
I didn't dispute that. I disputed the laying of fault with the FBI and NICS, as opposed to with the State government that is not adequately servicing it's citizen.
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Old April 24, 2013, 10:28 AM   #44
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Negative, JimDandy. If the only issue were reporting lag, one would think the concern would be that she might have to prove to the feds that she had not committed a crime, but the system was in error.

Our in-house legal beagles are saying she would actually be committing a crime.

That is a broken system... yet you keep arguing to expand it.
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Old April 24, 2013, 10:33 AM   #45
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Quote:
Originally Posted by Spats McGee
However, I'm not sure People v. Goree says what you think it does, Vanya.
You're right that the charge in that case wasn't possession, but the opinion does state that self-defense excuses a possession charge, as well:
Quote:
A defendant’s commission of a violent crime may be excused when the defendant acts to protect himself or others, as may a firearm-possession charge.
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Old April 24, 2013, 10:33 AM   #46
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There is a big difference between "X is not a crime," and "X is a crime, but I had a really, really good reason for doing it anyway." SD shootings are a great example of this. Killing a person is a crime. Killing someone is SD means you had to have a really, really good reason to kill that person.

ETA: Sorry, Vanya, but I cross posted with you. Give me a second and I'll have a response to your post.
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Last edited by Spats McGee; April 24, 2013 at 10:41 AM.
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Old April 24, 2013, 10:37 AM   #47
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And rightly so. Killing someone is never a good thing, and should be very hard to justify. (This is why I'm not totally convinced that stand-your-ground laws, at least as written in many states, are an entirely good idea.)

(Crossing again... round and round we go... )
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Old April 24, 2013, 10:40 AM   #48
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Our in-house legal beagles are saying she would actually be committing a crime.
Again, I have never disputed that.

If you can't vote in an election because your state hasn't reported you registered to vote, do you blame the state, or the FEC?

If the IRS comes after you for back taxes, because the State Income Tax isn't reported to the Feds right for the federal tax break, do you blame the state, or the Feds?

The State not doing it's job is not the Fed's fault.
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Old April 24, 2013, 10:42 AM   #49
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@ Vanya: Let me see if I can get this crossposting straightened out.

I can't seem to open my own link right now, but here are a couple of points, as I recall my reading of the opinion in the early pre-coffee hours of the day. For purposes of MCL 750.227b, the crime is described as "A person who carries or has in his or her possession a firearm when he or she commits or attempts to commit a felony, except" for certain exceptions. So the jury acquitted the defendant of the felony. If the defendant was acquitted of the felony, then possession was not, in and of iteself, a crime. For a felon, mere possession is the crime. The Defendant might be excused of a homicide on SD grounds, but possession up to the point where someone breaks in was still a crime.
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Old April 24, 2013, 10:47 AM   #50
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JimDandy, here is where your analogy fails:

If the state had not updated you with the feds, but allowed you to vote; and if your paperwork had been filed on your end, it is highly unlikely a federal auditor would charge you with voting fraud. Your state or local election commission might get sanctioned in some way for not doing the paperwork.

In the case under discussion, the woman could be not only charged, but convicted of a federal felony.

I really do not understand your stubbornness in defending the system.
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