Shots Fired: 2 nd Amendment, Restoration Rights, & Gun Trusts

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1 Shots Fired: 2 nd Amendment, Restoration Rights, & Gun Trusts The Second Amendment Generally Generally - Gun Control - Two areas - My conflict - Federal Law - State Law - Political Issues - Always changing - Change on average every 2 years - Emotional - after gun violence new laws may be enacted 2nd Amendment, US Constitution: A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. - Issue on grammar and how it was written - Right of the people should not be infringed - THIS IS THE RULE - Supreme Court Ruled this is an individual right Example of State Constitutions Section 1.04: "The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be kept up; and the military shall be in strict subordination to the civil power." - Fundamental and individual right Development of Case law - History of 2nd Amendment - Original Amendment stated: Right of the People Not to be Infringed - Ratification Process of the II Amendment - Madison s Involvement - Propose Bill of rights in the constitution - Added as bill of rights. - Some thought the right was allowed through the Necessary and proper clause - Decided to make Amendment - Text was changed several times - Some thought there was going to be infringement on freedom of religion

2 - Rep Burke made changes to text - Language sent over to the Senate - Discussed in Private - Took out religions language - Rejected - for the common Defense - Sept 25, Ratified - final version we have today. - 2nd amendment wasn t controversial until recently - Constitution - Living Document vs. Black Letter Law - Why we have Amendment Process Individual Rights Incorporation District of Columbia v. Heller 554 U.S. 570 (2008): - Issue: constitutional question about whether the right to keep and bear arms is an individual right unconnected to service in the militia or a collective right that applies only to state-regulated militias. There was a D.C. law that effectively banned possession of handguns by non law enforcement officials and required lawfully owned firearms to be kept unloaded, disassembled, or locked when not located at a business place or being used for lawful recreational activities. - Law: Supreme Court of the United States held in a 5 4 decision that the Second Amendment protects an individual's right to possess a firearm unconnected with service in a militia for traditionally lawful purposes, such as self-defense within the home and that Washington, D.C.'s handgun ban and requirement that lawfully-owned rifles and shotguns be kept "unloaded and disassembled or bound by a trigger lock" violated this guarantee. - According to the Court, the ban on handgun possession in the home amounted to a prohibition on an entire class of 'arms' that Americans overwhelmingly choose for the lawful purpose of self-defense. the requirement that any firearm in a home be disassembled or locked made it impossible for citizens to use arms for the core lawful purpose of self-defense. These laws were unconstitutional under any of the standards of scrutiny the Court has applied to enumerated constitutional rights. - The Second Amendment right is not absolute and a wide range of gun control laws remain presumptively lawful, according to the Court. - These include laws that - (1) prohibit carrying concealed weapons

3 - (2) prohibit gun possession by felons or the mentally retarded - (3) prohibit carrying firearms in sensitive places such as schools and government buildings - (4) impose conditions and qualifications on the commercial sale of arms, - (5) prohibit dangerous and unusual weapons, and - (6) regulate firearm storage to prevent accidents. - Dissenting - Justices Stevens Breyer, Ginsburg, and Souter 2nd Amendment is an Individual Right 2nd Amendment applies to federal enclaves and protects individual s right to possess a firearm for traditionally lawful purposes. Scope of Rights with Regards to the States : - McDonald v. Chicago 561 U.S (2010) - Issue: Does the 2nd Amendment Apply to the stats as it was stated in Heller? - Facts: McDonald wanted to buy a handgun for protection and safety. He lived in a questionable neighborhood. There was a Chicago ordinance banning the possession of handguns as well as other gun regulations affecting rifles and shotguns. - Law: decision of the Supreme Court of the United States that found that the right of an individual to "keep and bear arms" as protected under the Second Amendment is incorporated by the Due Process Clause of the Fourteenth Amendment against the states. State Law Examples - Virginia - The Constitution of Virginia protects the right of the people to keep and bear arms from government infringement. Virginia preempts local regulation of several aspects of firearms, though some local regulation is explicitly permitted. Virginia passed the Uniform Machine Gun Act, in 1950 which was drafted by the National Conference of Commissioners on Uniform State Laws. - STATE CONSTITUTIONAL PROVISION - Article 1, Section That a well regulated militia, composed of the body of the people,

4 trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power. - Permit To Purchase - Rifles and Shotguns - No - Handguns - No - Regulation of Firearms - Rifles and Shotguns - No - Handguns - No - Licensing of Owners - Rifles and Shotguns - No - Handguns - No - Permit to Carry - Rifles and Shotguns - No - Handguns - Yes - Ohio - Has fundamental right and Preemption law passed in Revised Code Preemption compared to knife laws - Klein vs. Leis, 99 Ohio St.3d 537, 2003-Ohio-4779 Living in a Post Heller world - Gun Control Act - Regulation of Firearm industry and owners. - Prohibition of interstate firearm transfers - Exceptions - Licensed manufacturers - Dealers - importers - Weapons Control Act

5 - Duty to Retreat Rare in Some States - duty to retreat except in home or in their car Stand Your Ground Implications - Self Defense Law - Rebuttable Straw Purchase Implications because of Heller - Intermediate Scrutiny Standard - Intention of Straw Purchasers RESTORATION OF RIGHTS Legal Disability - Cannot have a firearm because of some triggering event. Restoration under 18 USC 922(g) - 18 USC 925 not funded case law establishing this is not unconstitutional - 18 USC 921 Unless clause (Jurisdiction where the proceedings arose) - There are Nine disabilities (9 Under Federal Level) 18 USC 922 (g) - (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; - (5) who, being an alien - (A) is illegally or unlawfully in the United States; or - (B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(26)));

6 - (6) who has been discharged from the Armed Forces under dishonorable conditions; - (7) who, having been a citizen of the United States, has renounced his citizenship; (8)who is subject to a court order that - (A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate; - (B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; an - (C) - (i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or - (ii) - by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or - (9) who has been convicted in any court of a misdemeanor crime of domestic violence, 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 The mechanisms for restorations (Federal Law) Pardon - Very difficult Set Aside - Difficult - Manifest of Justice Expungement - Must be True Expungement - States differ on expungement. Some do not do true expungement Expungement v. sealment

7 - Expungement no record can be find - Sealment cannot find it ONLY in certain situations Rights Restoration Restoration Sealment Most typically used way to restore rights Standard - Fully discharged - Lead law abiding life and is likely to do so. - Otherwise allowed to carry a firearm Automatic Restoration - Federal Case law analysi - U.S. v Cassidy - 6th Circuit Look at three rights to restore gun rights - Hold Office - Serve Jury - Vote - Caron - Logan - Misc. 3. Restoration R.C a. Case law development b and GUN TRUSTS - Enables the use of NFA-regulated firearms and accessories among trustees, protects against potential future regulatory restrictions, and provides for the orderly transition of ownership upon death. - Estate Planning for Firearms - History

8 - NFA National Firearm act (1934). Part of the IRC. - is an Act of Congress in the United States that, in general, imposes a statutory excise tax on the manufacture and transfer of certain firearms and mandates the registration of those firearms. - Imposes a tax on buying firearms and tax on selling firearm - $200 making and transfer tax - $500 selling tax - History of ATF - Categories of Firearms Regulated - Machine Guns - Short Barreled Rifles - Short Barreled Shotguns - Silencers - Destructive Devices - - Gun Trust v. NFA Trust - Uniform Trust Code - Normal types of Gun Trusts - National Firearms Act issues

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