US v Weaver et al (US Dist Ct West Virgina)

[ckprax]

Another win. A low level case but still nice to see.

Opinion can be found here
http://ia600802.us.archive.org/22/items/gov.uscourts.wvsd.63229/gov.uscourts.wvsd.63229.2906.0.pdf

While it is true that the Fourth Circuit has so far stopped short of expressly recognizing a Second Amendment right to keep and bear arms outside the home,5 this Court has no such hesitation. The Supreme Court itself has acknowledged a Second Amendment right to protect oneself not only from private violence, but also from public violence. See Heller, 554 U.S. at 594 (stating that, by the time of the founding, the right to have arms was “fundamental” and “understood to be an individual right protecting against both public and private violence.”). The Heller Court additionally mentioned militia membership and hunting as key purposes for the existence of the right to keep and bear arms. See id. at 598. Confining the right to the home would unduly eliminate such purposes from the scope of the Second Amendment’s guarantee. Furthermore, the Court finds entirely persuasive Judge Niemeyer’s separate opinion as to Part III.B. in Masciandaro, 638 F.3d at 467-68 (Niemeyer, J., writing separately as to Part III.B.). There, Judge Niemeyer makes several observations drawn from the text of the Supreme Court’s opinion in Heller, including those mentioned above.

pure gold here. Footnote #7

The fact that courts may be reluctant to recognize the protection of the Second Amendment outside
the home says more about the courts than the Second Amendment. Limiting this fundamental right to the home would be akin to limiting the protection of First Amendment freedom of speech to political speech or college campuses.

 

[brucev]

Very cool decision. Entirely in line with the COTUS. Of course it will not please those who hold a "dynamic" view of Constitutional law. But for those who advocate original intent as the guide for Constitutional interpretation, this is a very satisfying decision.

 

[auburn2]

Can someone give me a one paragraph summarry, cause I'm not understanding.

From, reading this ruling it appears to me that the plaintifs (who are felon gun owners?) wanted to dismiss the charges because they had a constituitional right to bear arms even though they are felons and the court disagreed with them.

 

[Martya]

I am NOT a lawyer, but as a member I can offer my opinion. After skimming this, I come up with this:

The 'bodyguards' were using the 2nd Amendment as a defense -
They wanted these charges dismissed:

Defendants are charged in Count 19 of the superseding indictment with conspiring to possess
firearms while being employed for a convicted felon in violation of 18 U.S.C.§§ 371 and 922(h).
Except for Defendant Weaver, they are also charged in Count 21 of the superseding indictment with
violating § 922(h) by actually possessing firearms while being employed for a convicted felon.

Very basically, the Fourth Circuit court held that 2A does in fact apply to protection inside AND outside the home, which is further than several past court decisions. The court explains how it interpreted the 2nd Amendment as to "felons" and how it applied "outside the home" vs. "inside the home." It finally stated that it takes the 2A rights to apply outside the home, further than several other court decisions entered for the defense. Thus possession alone outside the home was not a violation of 2A.
Forum member ckprax quoted that in his post.

Then, the court had to determine whether 2A defense applied to the armed 'bodyguards' when employed by a felon. The court had to determine whether the 2A was subject to "strict" scrutiny or "intermediate" scrutiny with respect to Masciandaro and other court decisions.

On these allegations and
proffered facts, Defendants clearly were “employed for” Floyd Moore—their firearm possession was on behalf of Floyd Moore and within his control, all of which was known to them.
III. CONCLUSION
For the foregoing reasons, Defendant Weaver’s Motions to Dismiss Counts 19 and 21 [Dockets 619, 2855] and Defendant Mitchell’s Motion to Dismiss Counts 19 and 21 on
Constitutional Grounds [Docket 2860] are DENIED.

Hope this helps. Anyone want to step in and enhance this, or correct me, please do.

 

[Fat B]

I probably won't enhance it, I'll give my simplified version.

It is illegal for felons to carry guns. It is also illegal for someone to possess a firearm while being in employment by a felon. This is to prevent someone, who has demonstrated poor judgement in the past, for having firearms close or being able to direct people who work for them to use them.

This guy was a convicted felon. He employed bodyguards for his protection. His bodyguards were caught with weapons and they all freely admitted that he was a convicted felon who couldn't carry a gun so he paid bodyguards to do it as he felt he needed protection. Which as stated above is a no-no.

The initial argument was one of those very specific arguments, that the state had to prove, (which they say didn't), that the bodyguards were actually employed by the felon.

The court rejected this argument by saying that you don't have to prove money changed hands, you only have to prove that the felon was the boss in the situation. (which he was as vice-president of a motorcycle gang, the bodyguards were also part of the gang)


The second argument was that people have a right to protect themselves outside of the home and the law requiring not only felons but people employed by felons to be too far reaching.

The Court also rejected this argument as the courts have always recognized that there are people out there that we don't want to have guns and employing someone to carry your guns for you isn't o.k.

In short, the guy's possessing the guns lost. But in doing so the court recognized the right to protect yourself inside and outside of the home. Just not by felons. Or their bodyguards. Which irritates me to no end but that's personal opinion.

 

[Martya]

Much better than mine, Fat B, thanks!

Problem with decisions like Heller is it didn't get past the 'inside the home' part of our 2A rights. The courts are too tentative in stating rights in fact extend just about everywhere; they seem afraid to commit to getting past the "inside the home" part. The Fourth Circuit court did get past that in this case. Another small chip off the grabbers' roadblock...


Just curious, which part irritates you - the outside the home, the felons, or the bodyguards, if you don't mind the [slightly off-topic] question?

 

[Fat B]

Just curious, which part irritates you - the outside the home, the felons, or the bodyguards, if you don't mind the [slightly off-topic] question?

I don't mind but my opinion isn't a popular one.

I hear many firearms advocates talk about how defending ourselves is a right, to possess firearms is a right and how the 2nd amendment gives us that right. Then why is that "right" the only one that is taken away for life? No one ever loses their right of freedom of speech for life. No one loses their right to due process, or to a lawyer, or to assemble for life. Now I'm not talking about being incarcerated or on parole or probation. I'm talking about how they are done serving their time on an incident that happened 20 years ago and they are still deprived of their right for something that may or may not have anything to do with firearms.

An 18 year old takes old man Potters car for a joy ride. Old man potter doesn't find it that funny, presses charges and now the 18 year old can't own firearms for the rest of their life. They even give back voting rights after time served.

Now I just made that one up but here is a true story. My friend (when we were 16) had a butterfly knife. I have no idea where he got it from but that knife was dull as all. We used to practice flipping it around because we thought it looked cool. It was so dull that there really wasn't a sharp or a dull side. He gets pulled over with it in the glove box. They find nothing else after the search the car (with his permission because he doesn't think he has anything illegal, we're not drug users or thieves) and they find the old butterfly knife in the glove box. Now they charge him with concealing a deadly weapon, possession of an illegal weapon, etc... He gets the charges significantly reduced but if he was found guilty he wouldn't be able to hunt every year with me.

Most people agree that dangerous people shouldn't have guns. But to put a blanket over everyone convicted of a felony is excessive. On top of that all of the responsible gun owners who proclaims that carrying a firearm is a right guaranteed by the constitution looks the other way when some are deprived of their rights which I said before is the only one that is taken away for life.

"If we don't believe in freedom of expression for people we despise, we don't believe in it at all" -Thomas Jefferson

If gun ownership and protecting one's self is a right then it's in the same category as freedom of speech.

If gun ownership can be taken away for life, then owning a gun is put into the category of a privilege instead of a right, which is why the whole situation irritates me. Is it a privilege or a right? Even drunk drivers have a timetable on when they can get their driver's license back.

Take the argument a step further. Obviously the guy in this case feared for his life. So he didn't break the law and let other's carry guns and do the protecting. The Federal Government says even that's not o.k. Now that guy has no right to protect himself? What about his employee who worries that his boss will be a target and therefore the employee's life is in danger? Doesn't the employee have a right to protect himself?

Like I said in the beginning, there are plenty of people who disagree with me. But there are also plenty of felonies that have nothing to do with violence which means the argument that society is depriving someone of that right in the name of public safety has gone out the window. And all that leaves is society taking away "rights" as a punishment to the individual which we shouldn't do if we recognize it as a right and not a privilege.

Anyone want to jump in and tell me where I'm wrong?

 

[ImprovedModel56Fan]

Anyone want to jump in and tell me where I'm wrong?

No. Can't find it.

If someone is too dangerous to be permitted by the state to have firearms, why is he not in prison? Or at least under parental or other competent supervision.

So-called liberals' objections to guns have nothing to do with the law, the Constitution, or common sense. They don't like guns, and they want to outlaw them. They simply don't believe in a free society. Rather, they believe that they should be able to cram their ideas down everyone else's throats. They need a taste of their own medicine.

 

[Martya]

Fat B - I sort of suspected that was what you meant, and just recently this was in a conversation I was having with someone. In theory, in a perfect world, a person who "done his time" would be out on the streets as a contributing member of society, a citizen, stuck with finding a job, paying taxes, choosing a candidate to vote for, and so on, just like me. Why not, they have 'paid their debt to society.'

Unfortunately, many see any felony as a felony, and many felons return to felony graduate school and learn how to be better felons, and that contaminates the rest of the truly rehabilitated ones. So, while I agree with you in principle, the reality is gun carrying is a privilege just about everywhere now, even for someone like me, felons are in prisons run by private companies and are released due to someone's cost / benefit calculation and not whether they truly 'paid their debt to society' and thus, in the pool of folks with 'felony' in their history, some of those released probably should never be allowed to own / handle a gun (not that that matters, I know).

Maybe some day, perhaps with some report or approval from wardens or probation officers, some former felons would be considered citizens again?


Sorry for any off topic parts.

 

[Fat B]

You're right I don't want to highjack someone else's thread so I started a new one here

http://smith-wessonforum.com/2nd-am...gun-ownership-really-right.html#post136433454

 

[silentflyer]

"the right to keep and bear arms shall not be infringed" simple and too the point, however when one is convicted of a felony he loses many of his rights, I have NO problem with that idea...whats the use of having laws if there is no penalty for breaking them? Maybe that's a question for our "turn them lose" judges.