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Old February 15, 2013, 12:40 PM   #1
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how does this work

The General rule is that an unconstitutional statute, though having the form and name of law is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of it's enactment and not merely from the date of the decision so branding it. An unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted.
How does this work for people convicted of some crime if the supreme court overturns a law someone was convicted of breaking? For instance did anyone get anything when the Supreme Court ruled that in Heller? Something like a conviction being ruled void or similar?
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Old February 15, 2013, 01:34 PM   #2
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As I recall there was a guy who appealed his conviction after Heller and was denied because he didn't include a 2A argument in his trial defense. Or something similar. Given what you wrote, something is fishy off. He was denied for not raising a 2A claim, but if the law was never lawful....
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Old February 15, 2013, 02:04 PM   #3
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I'm not sure about which case JimDandy speaks, but courts will not decide issues on appeal that were not raised at trial. IOW, if he didn't argue the 2A below, the appellate court will not raise the issue for him.
I'm a lawyer, but I'm not your lawyer. If you need some honest-to-goodness legal advice, go buy some.
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Old February 15, 2013, 02:13 PM   #4
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When a law is voided as unconstitutional, any and all convictions under that law are voided as well. The records should be expunged.

However, it may take suit to get those records removed, and might even take an individual suit for each case, until/unless a court orders ALL records expunged. IT should be automatic, but the system being what it is, often what ought to happen does not, unless specifically ordered, and sometimes, not even then.

Judges are just that, they judge. Some of them have standards we don't understand. That's why there is an appeals process, so different judges can decide if the first judgement was actually correct.

The law being what it is, and having at least fairly clear intent, if someone was denied restoration of their rights because they didn't claim a 2ndAmendment argument in their case, it has to be something about the construction of the case that is flawed. Judges can be quite literal in their judgments, and it might be as simple as "you don't git it, because you didn't ask for it the right way". Our opinions aside, that is a valid judgement. Until/unless a higher court rules it isn't.

Words in legal settings often mean something rather different than the same words in casual conversation. Tell your friends that you "stopped for a minute at the stop sign, then pulled out and got hit...." means you waited at the sign for a brief period of time. Tell the same thing in court and you have just said you stopped for a full 60 seconds (a minute), and then pulled out...

If they prove you only waited 38 seconds, your credibility is trashed, and everything you say is now suspect.

Don't ask for restoring your gun rights in just the right way, and the answer can easily be "no". Nothing stops you from appealing, or bringing another case, where you do ask in just the right way. A court telling you that you cannot do either of those is quite another matter,however.
All else being equal (and it almost never is) bigger bullets tend to work better.
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Old February 16, 2013, 10:43 PM   #5
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Yeah, that's the part I don't get... if the State of XYZ decides to ban Catcher in the Rye, and I get arrested because a copy is in my attic even though I've never been in there, so I try and defend myself that it's not mine, and fail.. but the Supreme Court comes back and says banning Catcher in the Rye was unconstitutional I'm still screwed?
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