B.L.U.F. 18 USC §922, the GCA is likely Unconstitutional, and §922(g) which lists prohibited persons should go away and be replaced with something else
In 1963 A. Hidell mail ordered a rifle and a .38 Smith & Wesson Model 10. This man then used the rifle to fire a shot at US Major General Edwin Walker from less than 100ft away.
He missed.
Later that year A. Hidell went to the upper stories of a building in the city and set up a snipers nest. Even though he had once qualified as a sharpshooter in the Marines, he had not kept that qualification. When he was honorably discharged from the Marines he was only a “marksman”. His MOS was Aviation Electronics Operator. He was never a “sniper” was never very good with a rifle.
Look at missing his target from less than 100 ft.
On November 22, 1963 A. Hidell was in his snipers nest waiting for his target. A slow moving vehicle. From the sixth floor he took his shots.
One of them hit his target, President John F. Kennedy. His real name was Lee Harvey Oswald. A. Hidell was the name he gave when he purchased his rifle and pistol.
In shock over the assassination of Kennedy which was followed by still more assassinations, the public was horrified to learn that it was “easy to buy a gun”.
“If the gun Oswald would have attempted to purchase those firearms in person, nobody would have sold to him because he gave a false name.”
The push started to eliminate mail order firearms in order to save people and to make society safer.
Oswald was known to law enforcement, had been court martialed, twice, had been in juvenile detention at 12 because he was emotionally disturbed. He was a defector that had come back to the US from Soviet Russia. And he was a communist.
Regardless, the people knew that the real reason that Oswald was able to kill the President of the United States was because of easy mail order access to firearms.
This lead to a push for the first federal gun control since the National Firearms Act of 1934, a tax bill.
Article 1, section 8, clause 3 of the US Constitution says:
The Congress shall have power..
To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;
From this, congress decided to regulate commerce in firearms with the Gun Control Act of 1968
- It shall be unlawful for any person—
- who is under indictment for, or who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
- who is a fugitive from justice;
- who is an unlawful user of or addicted to marihuana or any depressant or stimulant drug (as defined in section 201(v) of the Federal Food, Drug, and Cosmetic Act) or narcotic drug (as defined in section 4731(a) of the Internal Revenue Code of 1954); or
- who has been adjudicated as a mental defective or who has been committed to a mental institution;
to ship or transport any firearm or ammunition in interstate or foreign commerce.
This is the law as it was passed in 1968. What was forbidden of a prohibited person was shipping or transporting firearms or ammunition across state lines.
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.
This is what is prohibited today. It is now unlawful to transport, possess, or receive any firearm or ammunition which might affect commerce or be involved with interstate or foreign commerce.
With the clause of “affecting commerce” the law becomes much broader. If you are making firearms for use only in your state you are not covered by interstate commerce. The catch is that if you are selling within your state and somebody buys your firearm instead of one that is covered by interstate commerce, you have affected commerce.
If you are competing with commerce that is federally regulated then you are affecting that commerce and congress thinks that gives them the power to regulate you as well.
The amended GCA adds four more classes of prohibited person.
When we look at the list of prohibited person, the only one that might have constitutional support is “who, being an alien… is illegally or unlawfully in the United States…” (exceptions omitted).
The class of people that belong to “The People” are all legal residents of the US and any US Citizens. Everything else is an attempt at removing a class of persons from “The People”.
Everything in §922(g) is about determining who is and is not virtuous. This is where we have issues.
As a member of society, I would prefer that the bad people be disarmed. There are some strong indicators of who a bad person is. A person that has been convicted of a serious crime involving the use of weapons or other physical threat and those that are mentally unstable are the two groups that I feel should be prohibited from possessing firearms and ammunition.
That is NOT what the Constitution says. The Second Amendment says “the right of The People to keep and bear arms shall not be infringed.” It does not give any set of persons that is excluded from “The People”. In other places in the Constitution “The People” might be better translated as “Citizens”.
It is clear that the second amendment covered more than just citizens. There are just too many historical examples of people being residents of the United States but having the right to keep and bear arms.
Having stated who I feel should not have firearms, I stand up and say that what I want is not constitutional and as such should not be done.
When a person is convicted of a crime or committed for a mental issue they will either be incarcerated or they will be released on probation.
If a person is incarcerated they have lost many of their freedoms. That includes the right to keep and bear arms. They have lost that right for as long as they are incarcerated.
My humble suggestion is that when a person is released from incarceration that they should be put on probation. The period of probation to be fixed based on the conviction and to include all time remaining on their sentence if they are paroled.
As an example consider a person convicted of rape, kidnapping and robbery and sentenced to 30 years for each count to run concurrently. The probation period for the violent crimes of rape and kidnapping have a 7 years probation and robbery with out a weapon has a 5 year probation period.
If our felon was paroled after 23 years in prison he would be on probation for 7 years till his original release date. Since the three convictions run concurrently there is another 7 years of probation for a total of 14 years that the felon would be on probation.
During this time if the felon is caught with a firearm it will be construed as a violation of their probation. The assumption is that they intended to do harm with that firearm.
At the end of their probation period they are allowed to keep and bear arms once again.
This covers all of the issues, in my opinion. Bad people are prohibited till they prove they are no longer doing bad things. People that aren’t doing bad things aren’t prohibited. It all balances.
Regardless, the GCA is taking hit after hit and is likely to fall soon. There is just to much over reach in §922 that are unlikely to stand up to Constitutional scrutiny.
Comments
2 responses to “Who Should Be Prohibited?”
That Commerce Clause has been abused by Congress a bit too much. It was how 0bama tried to close coal fired power plants. The emissions could travel over state lines, therefore, the Federal Government could hold sway.
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The way the government agencies get away with this is they have no way to determine if you will travel across state lines with a gun after the sale. While the Law does not say you cannot buy or own the gun, the Regulations probably do. And, since the Regulations provide a stricter, yet still within the bounds, definition of prohibited person, they can get away with it.
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And, this is an interesting example of Case Law. A court case made it to a court level, I forget whether it was District or Appellate, or what court, that determined the prohibited person regulations are exceeding their legal boundaries as defined in the GCA. It also seems to have determined that the law itself may exceed the legal authority of the Constitution.
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I am with you on this front.
A blanket “prohibited person list” is not what I want to see. Individual State, Cities, or Judges should have some say. A person convicted of first degree murder is one thing, someone convicted of embezzlement is a different thing, and their prohibition against exercising the same rights and privileges as every other US Citizen should not be arbitrary.
The default, the “normal setting” of any rule of law MUST start with, “…shall not be infringed.” Period. End statement.
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I agree, I don’t really want the child molesters running around with firearms. It makes my skin crawl, and I don’t like it. But it’s not up to me. It’s up to the Constitution, and to a lesser degree, the courts. If someone is truly and honestly not able to handle the responsibility of carrying a firearm, then they shouldn’t be let out of jail (where it isn’t an issue because firearms are already prohibited).
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Perhaps the answer should be that someone leaving jail for a violent crime can either waive their right for the duration of their probation (during which they nominally “should have” been in jail for), or they can continue to serve their sentence in prison. If there’s a serious concern that someone being released is just going to go shoot up somewhere else, why the heck are we releasing them??
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Of course, I’m also a staunch supporter of an eye for an eye. There’s a small, angry part of me that would love the start of an offender’s sentence to begin with an hour alone with their victim, while they (the perp) are restrained in some way where they can’t hurt their victim. What the victim does for that hour is completely up to them, with the exception of things which would lead to certain death. After all, we’re not savages.
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That really shouldn’t happen, of course. It’s not right, in the grand scheme of things. It doesn’t work, over time. But man… there are moments when I look at friends who were sexually abused as kids, and think, wouldn’t that just be grand? Give me 30 minutes alone with the sad man in the saggy underpants.