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Old January 14, 2012, 12:35 PM   #1
Join Date: September 7, 2011
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US v. Rehlander.

Long story short, a man was involuntarily committed to a mental institution ex parte. Meaning that he wasn't there when they did it, nor was his lawyer. Later we was arrested charged and convicted of being in possession of a firearm by a prohibited person. He appealed the ruling where it landed at the 1st circuit. The first circuit just ruled that his 2A rights cannot be taken away without him having and advocate at the proceeding. The brief (over 100 pages) and opinion are attached.
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File Type: pdf Opinon.pdf (81.0 KB, 14 views)
File Type: pdf Brief.pdf (863.7 KB, 10 views)
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Old January 14, 2012, 10:51 PM   #2
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Interesting. Thanks for pointing this out.
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Old January 15, 2012, 12:30 AM   #3
Al Norris
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This was a good decision that may well affect other cases, now at the docket.

Although the right established in Heller is a qualified right, the right to possess arms (among those not properly disqualified) is no longer something that can be withdrawn by government on a permanent and irrevocable basis without due process. Ordinarily, to work a permanent or prolonged loss of a constitutional liberty or property interest, an adjudicatory hearing, including a right to offer and test evidence if facts are in dispute, is required.
Even Prof. Volokh thinks this is the correct way to interpret the 2A.
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Old January 15, 2012, 02:06 PM   #4
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I have to wonder how something like this happens. Does a family member (or an enemy?) simply show up with a lawyer and request a commitment hearing? What kind of "proof" could they present to convince any court to commit someone, without the court even considering hearing the other side of the case?

Not having the details (and not wanting to wade through a 100page legal brief, where I might not find the answers anyway), it would appear that the mans rights were violated because proper due process was not followed, not because he wasn't crazy.

Obviously there is a backstory to this that I don't have access to, which makes me wonder just how such a situation could come about in the first place.
All else being equal (and it almost never is) bigger bullets tend to work better.
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Old January 15, 2012, 03:20 PM   #5
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When there is money involved, yes, family or others that could gain, can have a person involuntarily committed so they can get control of whatever assests the committed person is "mismanaging"

I remember one case where the guy was a widower, and hooked up with a lovely young thing. He spent a lot of money giving presents to this gal and his kids did not like "their inheritence" being wasted on someone they did not like so they tried to get a judge to declare their dad mentally incompitent to care for his own affairs, with them as trustees.

Made good reading in the new paper anyway.`
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Old January 16, 2012, 04:22 PM   #6
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I have to wonder how something like this happens. Does a family member (or an enemy?) simply show up with a lawyer and request a commitment hearing? What kind of "proof" could they present to convince any court to commit someone, without the court even considering hearing the other side of the case?
According to the opinion, both gentlemen in question had suicidal tendencies. Under state law, a law enforcement officer or medical professional can request an emergency hospitalization for up to three days. A medical professional has to certify he or she has examined the patient and that they are in need of mental treatment/evaluation and appear to be a danger to themselves or others. A judge simply insures this process takes place and there is no hearing for the evaluation period. An adversarial process is then employed if the health professionals believe further treatment is needed and the patient is a danger to himself or others.

Think of the situation where police are called to an intersection and a guy is waving a steak knife around threatening to cut his own throat. The guy would generally be hospitalized on an emergency basis. He might then agree to voluntary treatment for a longer period or be involuntarily committed after an adversarial hearing. It is this involuntary commitment that, according to this opinion, terminates the patient's right to own firearms.

The situation that hermannr describes is different, though often handled by the same courts and employing some of the same professional teams. A person may be declared incompetent to handle his or her finances and/or their personal affairs. A guardian/conservator is then appointed. This is commonly and legitimately done when dementia sets in and the person has not made provisions through a durable power of attorney.

Practices vary state by state, of course.

Added: I was professionally involved in a situation like hermannr described a number of years ago. There are no winners in those.
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