Guns

Second Amendment Right Regained, Despite 20-Year-Old Conviction

Federal law treated the conviction -- for altering a motor vehicles department certificate that allowed the owner to have tinted windows on his car -- as a felony, because the maximum penalty was five years in prison. But state law treated it as a misdemeanor, and the defendant was sentenced only to a year's probation.

|The Volokh Conspiracy |

From yesterday's decision in Miller v. Sessions (E.D. Pa.):

The background of this case revolves around a 1998 misdemeanor conviction. Miller was pulled over for having window-tint on his car that, according to the patrolman who stopped him, was too dark. He had previously received an exemption from the Pennsylvania Department of Transportation ("PennDOT") for tinted windows on a previously owned car. Miller did not apply for a new exemption for his new car. Instead, with the aid of a typewriter, white-out, and a scanner, Miller replaced his previously owned car's Vehicle Identification Number ("VIN") on the exemption certificate with the VIN of his new car.

Miller presented this altered PennDOT certificate to the Magisterial District Justice at his hearing regarding the window-tint violation. Based on the asserted authenticity of this certificate, he was found not guilty of the window-tint violation. After the hearing, the patrolman who had originally stopped Miller requested a copy of the PennDOT certificate that Miller had proffered to the court. When the patrolman attempted to verify its authenticity, PennDOT informed him that Miller had never obtained a window-tint exemption for his new car. PennDOT informed the patrolman that Miller had only ever received a window-tint exemption for his previously owned car. It then became apparent that the certificate evidencing the window-tint exemption proffered in court had been altered and was not authentic.

As a result, Miller was charged with and later pleaded guilty to possessing and using documents issued by PennDOT that he knew were altered in violation of 75 Pa. Cons. Stat. § 7122(3). Miller was sentenced to a year of probation, which he completed successfully, and has had a spotless record ever since.

Pennsylvania misdemeanors, unlike misdemeanors in most states, are punishable by up to five years in prison, which makes them felonies for federal firearm disqualification purposes. But that, the court says, violates the Second Amendment in this case:

In Binderup v. Att'y Gen. (3d Cir. 2016) (en banc), [Judge Ambro's plurality opinion] identified four factors to consider when determining if a challenger has been convicted of a serious crime. Specifically, the Court looks to (1) whether the state legislature classifies the offense as a felony or a misdemeanor; (2) whether the offense was violent; (3) the actual punishment imposed; and (4) any cross-jurisdictional consensus regarding the offense's seriousness….

As to the first factor, Pennsylvania has classified Miller's crime as a misdemeanor. It is punishable by imprisonment for up to five years, and although the "maximum possible punishment is 'certainly probative' of the offense's seriousness," the classification by the state legislature as a misdemeanor is an important consideration. Indeed, such a classification is "a powerful expression of [the state legislature's] belief that the offense is not serious enough to be disqualifying." Although labeling an offense as a misdemeanor is not conclusive, it is important in the Second Amendment context because it reflects the legislature's assessment of the seriousness of the offense. As the D.C. Circuit has observed, "[w]hen the legislature designates a crime as a felony, it signals to the world the highest degree of societal condemnation for the act, a condemnation that a misdemeanor does not convey." Here, given that the legislature has classified this type of offense as a misdemeanor, this factor weighs in Miller's favor.

As to the second factor, the Court must consider whether the offense had a violent element. In the instant case, the crime was wholly non-violent. Although "it is possible for nonviolent crimes to be serious, the lack of a violence element is a relevant consideration." Again, here, this factor weighs in Miller's favor.

As to the third factor, the Court considers the actual punishment imposed. As the label of a misdemeanor reflects the legislature's assessment of the offense, the actual punishment imposed reflects a judicial assessment of the gravity of the offense. Here, Miller was sentenced to a year of probation, which he completed successfully. Just as it was important in Binderup that the challengers each received minor sentences, it is important in Miller's case, too. As the Third Circuit noted, "severe punishments are typically reserved for serious crimes." Accordingly, this factor also weighs in Miller's favor.

As to the fourth factor, the Court considers whether there is cross-jurisdictional consensus regarding the seriousness of the offense. In Binderup, the challengers could not show that numerous states considered their crimes to be non-serious, but they did show a lack of consensus across jurisdictions. Here, Miller has also not shown a cross-jurisdictional consensus that many states consider his crime to be non-serious. On the other hand, the Government's fifty-state survey suggests that many states punish similar crimes by more than one year of imprisonment and label similar crimes as a felony. Miller, however, disputes the similarity of a number of the other states' crimes, pointing out, for example, that his offense only required possession and use of an altered PennDOT document while many of the offenses in the Government's survey require the offender to alter or forge a document. Whatever the relative merits of the parties' arguments, the Court need not compare the similarities and differences between Miller's crime and the crimes in the Government's survey because even if this factor is given some weight in the Government's favor, it does not outweigh the other three factors that weigh in Miller's favor.

Thanks to Prof. Glenn Reynolds (InstaPundit) for the pointer.

NEXT: Are You a Woman Traveling Alone? Marriott Might Be Watching You.

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  1. 2nd Amendment: 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.

    All gun control laws are unconstitutional. There are no exceptions in the 2A for infringing on the right of the People to keep and bear Arms, based on past felonies or past drug use.

    No background checks. No bans. No limits on guns and ammo. No limits on machine guns. No registries.

    No government infringement is permissible. None.

    1. Is posession of a Davy Crockett nuclear projectile Constitutionally protected?

      1. I’m still waiting for him to answer my question from the other day about whether he thinks people incarcerated in prison have the right to bear arms.

        1. I don’t always check back, especially when trolls reply to my comments.

          Duly convicted prisoners can be slaves under the 13th Amendment, so while in state custody you lose some rights until your sentence is complete.

          Its why the Founders added so many legal protections for criminal defendants. Once you’re convicted and in state custody, things can be bad for you but not cruel and unusual bad.

          1. Asking you hypotheticals that a court might ask you is not trolling.

            1. Trolling ? (verb), as it relates to internet, is the deliberate act, (by a Troll ? noun or adjective), of making random unsolicited and/or controversial comments on various internet forums with the intent to provoke an emotional knee jerk reaction from unsuspecting readers to engage in a fight or argument

              The “Davy Crockett” named weapon gave you away.

              1. I do this for a living. You don’t. An appellate court would tear you to shreds. And it wouldn’t be trolling.

                1. Appellate court upheld ObamaCare.

                  Appellate Courts are full of lazy do nothing judges who clearly need to be impeached for violating their oaths of office and not following the US Constitution.

                  You must have missed that part of law school where they taught law and the Constitution.

              2. The M-29 Davy Crockett Weapon System is an actual weapon designed and deployed by the US military, its the smallest nuclear weapon ever built. Its a recoil-less rifle capable of being fired from a tripod or mounted on the back of a Jeep

                Personally I would argue that it does not meet the definition of a “bearable arm” nor the 1771 legal definition of “arms” as despite is small size for a nuclear weapon, its much too large for a single person to bring to bear effectively

                1. Good thing the 2A says “Arms” and not “arms” as in small arms.

                  Under this silly interpretation by gun grabbers, ammo is not protected by the 2A since ammo is not a “bearable” small arm.

                  Arms is Armaments, which includes swords, pistols, rifles, ammo, grenades, bombs, land mines, rockets, ships, tanks, knives, airplanes, and any other Arm invented in the future.

                  Its why the federal government has never banned machine guns, explosives, and armored vehicles from private ownership. They just tried to regulate them out of existence for private ownership.

                2. While some of the other arguments against this hypothetical might work, the “arms excludes crew-served weapons” is patently false. At the time of the Founding, cannons and even major ships of war were privately held, privately crewed and privately financed. There is no evidence to support the contention that the Founders intended to exclude them from the scope of the Second Amendment.

                  1. From pure textual standpoint, “keep and bear” means own and carry, which you cannot do with most ordnance. Furthermore, when the militia is referred to in the Federalist Papers, etc., it’s in the context of them bringing to the militia their own weapons and drilling, as in marching and firing in formation, not target practicing with cannons. Larger weapons of war in private hands are mentioned elsewhere in the Constitution when it brings up Letters of Marque, and not in relation to the 2nd Amendment or the militia.

                    When the early Republic wanted to mandate that people buy arms for their service in the militia (which came up during the Obamacare debate, because it was the only other time government mandated commerce), it was rifles and not cannons they required.

                    Culturally, yea, you’re correct in that the founders didn’t care that some people had cannons, etc. But as a matter of origionalism, you’re wrong (setting aside quibbles about things like automatic weapons, which should be allowed under the 2nd Amendment).

                    1. I have yet to see any proof that the Founders meant to exclude Armaments like privately owned cannons and armed privateers since those weapons help save this Republic.

                      That’s like the morons who say the 1st Amendment only protects the media (abridging the freedom of speech, or of the press) and not the printed word by average people who help spread the word of Revolution via pamphlets and letters.

                    2. That is a crabbed and anemic redefinition of “keep and bear”, mad. The better and more defensible definition is “own and be ready to use”. For example, you ‘bring a cannon to bear’ by readying it and aiming it at the target.

                      I am a great fan of the Federalist Papers. I remember nothing in them Papers which excludes target practice with cannons. Please provide your cite for that claim.

                      Letters of Marque might plausibly be the governing clause for ships of war but a Letter of Marque has nothing to do with cannons. There are, for example, no instances of Letters of Marque being issued to artillery batteries.

                    3. Anemic, perhaps, but accurate to the text. It makes to logical sense to “the right of the people to keep and *aim* arms” which is the synonym you suggest in place of bear, when bear means “to aim”. Do you really think Madison meant to protect the right to aim weapons, or to carry them?

                    4. Whoops, I meant to say it makes NO logical sense to say “the right of the people to keep and *aim* arms”

                3. The founders accepted – even endorsed! – private ownership of weapons like cannon, including the strategic siege weapons that were seized by the British during their expedition out to Lexington and Concord.

                  Siege weapons were one of the two major types of strategic arms of the time. The other being warships… such as those armed private ships used by the revolutionaries and early Americans. There’s a reason that the “Letters of Marque and Reprisal” is in the Constitution. It would have been absurd to put such a clause in there, while at the same time denying your people the ability to do those things.

                  1. Exactly Toranth.

                    Gun grabbers never explain how private ship owners were able to seize targeted shipping without Armaments and the their protected status under the 2A.

                    I think one guy said that they get the cannons once Congress grants the Letter of Marque and/or Reprisal. Nothing more effective than a ship’s crew that never handled a cannon before.

                    1. Sure, the Founders endorsed private cannon ownership. I agree. But they didn’t protect it in the Second Amendment.

                    2. “Nothing more effective than a ship’s crew that never handled a cannon before.”

                      18th century cannon? Point-and-shoot interface. Not rocket science.

                    3. JP, you’re shooting from the hip and missing. It was specialized enough that artillerymen were elite troops. Napoleon, for example, trained in his military academy to be an artillery officer.

                4. Take up your argument with SCOTUS.
                  Heller defined ‘RKBA’ as two separate rights. Interconnected, but not co-dependent.

                  2A restricts the government from infringing on the right to ‘keep’ arms as well as the right to ‘bear’ them.

                  You can do one or both at the same time, but keeping is not restricted to only bearing.

          2. The 13th amendment explicitly exempts those “duly convicted” of a crime from protections against slavery, no such exemption exists in the 2nd amendment

            1. Poor prisoners dont get to fully utilize the Privileges and Immunities Clause either and travel from state to state.

              1. But where is that explicitly stated? You’re the one claiming the constitution is unambiguous and absolute here

                1. Slaves always get to travel from place to place. Its in the definition of slave.

                  See, once again, I never said the Constitution “is unambiguous”.

                  1. Kevin Smith and his pals need the Constitution to be clarified by judges.

                    Them smart people need to tell us peons what is what. We cannot possibly read it for ourselves.

                    You fooled us again that the 2A needs to be limited by the government. I mean that is what it is there for. Thank God the government lets us have guns at all.

                    1. “We cannot possibly read it for ourselves.”

                      Read it? Sure. Understand it and how it fits in with the rest of the law? Apparently not.

            2. “The 13th amendment explicitly exempts those “duly convicted” of a crime from protections against slavery, no such exemption exists in the 2nd amendment”

              The legal route around this is called the “civil death penalty”. Under that approach, a convicted felon is legally dead, and has the same rights as a dead person has. This is why several states still do not permit felons to vote.

              A slightly more modern rationale is that as a felon, you’ve chosen to waive several of the rights you would have had, had you not chosen to engage in criminal acts of felonious severity. You can choose to waive rights, and courts will accept a voluntary waiver as valid. You can waive trial to a jury in all but capital cases. You can waive assistance of counsel. You can waive your right to keep silent. You can even waive reasonable suspicion for a Terry stop, simply by staying where the cop is and answering questions voluntarily. You can allow them to search your person, vehicle, home or other places where you keep your papers and possessions.

              1. Poor Pollock.

                When your duly convicted, you receive a punishment. That punishment is the state deciding what rights you still have while in state custody and what rights are lost.

                Once your punishment is complete, the state loses control over you. Unless your punishment lasts your entire life.

                1. “Poor Pollock.”

                  You keep saying this when I have to explain things to you. Why is that?

                  “When your duly convicted, you receive a punishment. That punishment is the state deciding what rights you still have while in state custody and what rights are lost.”

                  Duh.

                  “Once your punishment is complete, the state loses control over you.”

                  Interesting theory, although unrelated to the real world.

                  “Unless your punishment lasts your entire life.”

                  When you are convicted, you become a convict. You remain a convict for the rest of your life, unless A) you win an appeal, or B) you are granted executive clemency. So, for the vast majority, for the rest of their lives.

          3. How about people in jail awaiting trial, then?

            1. There should be nobody in jail awaiting trial.

              Everyone has a Constitutional right to non-excessive bail. Everyone should have a super cheap bail amount. I suggest $5 for misdemeanors and $10 for felonies. Even murderers.

              If you bail jump, arrest your ass and set a new non-excessive bail.

              You are supposed to get a speedy trial anyway, so try people in 2 weeks and give them bail until they are convicted.

              None of these modern day violations of the Constitution that we see would even exist if the government would follow the Constitution.

              Most people are in jail for drug crimes and drug laws are unconstitutional since there is no power to ban products and services. Even the Prohibitionists knew this, so they amended the Constitution.

              1. “Everyone has a Constitutional right to non-excessive bail.”

                A right to non-excessive bail isn’t the same thing as a right to not be held until trial.

                “Mr. Accused, you’ve been formally charged with a crime, and your trial will begin on (date).”
                “I understand”
                “Bail has been set at $1”
                “I’m not paying.”

                At which point, you get held.

                There’s also the matter of how high bail can be without being “excessive” for a person with a history of jumping bail.

                1. bail
                  /b?l/
                  noun: bail
                  1. the temporary release of an accused person awaiting trial, sometimes on condition that a sum of money be lodged to guarantee their appearance in court.

                  The Founders did not want defendants kept in jail while the state never took them to trial. That is what the British did.

                  Non-excessive bail and a speedy trial were the Founders answer to that problem.

                  1. “1. the temporary release of an accused person awaiting trial”

                    Genius, you can’t be released (temporarily or otherwise) unless you are first being held.

          4. The Constitution is written in such a way that rights can be removed via due process. Which would tend to include the ability to disarm someone serving a sentence. AFTER the sentence is served however, is a very different thing entirely.

            1. ” AFTER the sentence is served however, is a very different thing entirely.”

              The sentence for a violent felony is a lifetime one, even if the prison term is not.

              1. No, it isn’t, unless the sentence is “life in prison without parole”.
                The lifetime prohibition against felons owning weapons is not part of the sentence. Nor does it only apply to violent felons. Non-violent felons get the same treatment.

                1. “The lifetime prohibition against felons owning weapons is not part of the sentence”

                  So, they CAN own weapons, then?

                  1. You seem to fundamentally misunderstand how the law works. The sentence and prohibition are two entirely separate things.
                    The sentence is handed down by the court. The prohibition is handed down by Congress, and applies regardless of the sentence handed down by the court.
                    Moreover, the Lautenberg amendment (which expanded the prohibition to domestic violence misdemeanors) was retroactive and applied to everyone convicted of a domestic violence misdemeanor, regardless of when the misdemeanor and conviction happened. Those people whose sentences had already been handed down were just as prohibited as those whose sentences were yet to come. That WOULD NOT have been allowed if the prohibition was part of the sentence.
                    If it was part of the sentence, then removing the prohibition would not give the felons their rights back, unless the law was specifically written to do that, and the addition of other classes of prohibited person would only apply to those who joined those classes after the addition, and not to those convicted prior.

                    1. “You seem to fundamentally misunderstand how the law works.”

                      No, twit.

                      “The sentence and prohibition are two entirely separate things.”

                      In the sense that they really aren’t.

                      “The prohibition is handed down by Congress, and applies regardless of the sentence handed down by the court.”

                      No. The sentence is handed down by the court. Some of the elements of the sentence are mandatory, set by statute, and not subject to the discretion of the court. Some of the elements of the sentence are subject to the discretion of the court.

                      Some crimes have a mandatory minimum sentence, set by statute, which comes into play as soon as the jury votes to convict. Sometimes the mandatory minimum includes a set term in prison, and sometimes it includes a mandatory disqualification from being an officer in a publicly-traded company, and sometimes it includes a term on the sex-offender list, and sometimes it includes disqualification from possessing a firearm, and, in most states, it can include disenfranchisement.

                    2. Non Usable Body explained it correctly.

                      You never convince anyone with your nonsense, Pollock.

                    3. Ooh! I’ve been promoted to italics. Does that come with a cash award?

      2. Yes, as long as all environmental laws and regulations are met.

      3. Yup.

        Good luck getting thousands of people to build one for you.

        The federal government still gets to regulate international commerce, so you wont be able to just import one.

        1. But if someone manages to build one, we are screwed?

          1. We can amend the Constitution to not allow nukes then. Its that easy.

            We have hundreds of millions of guns in the USA and unlawful shootings by regular law abiding people are rare. Your argument is that if someone has a nuke they will use it.

            I often hear about my neighbors wanting to spend all their money to build a nuke and then nuke themselves and their neighbors. Its a very American thing to do.

            1. I don’t think we need to amend the Constitution, because the Second Amendment is less categorical about this than you assume.

              Your fear that the government may erroneously take away a legitimate armament is not a justification for adopting a ridiculously overbroad construction of the Constitution. That’s like treating dandruff with decapitation, as Frank Zappa would say.

              1. The 2A is very clear and concise. If your arguing in bad faith, then no Constitutional protection could ever be worded to absolutely protect the people’s right to keep and bear Arms.

                This is based on a fundamental Natural right to protect yourself and your family with weapons.

                As with the fundamental human right to think whatever I want, I don’t need government permission to own any Arm that I want.

                Machine guns, grenades, ships, tanks, swords, pistols, rifles, bombs, knives, planes, and any other weapon ever developed.

                1. And don’t forget the Letters of Marque and Reprisal clause. Privateer ships are very ineffective without naval weaponry, and it was only in 1991, I seem to remember, that tactical nuclear weapons were removed from U.S. Navy ships.

                2. There is no such absolute protection.

                  The Second Amendment is an attempt, however flawed, to create a Swiss style system with widespread gun ownership to come to the civil defense of the state.

                  Yes, that creates an individual right to bear arms. No, that doesn’t create an absolute right.

                  1. One thing is for sure, there is no permissible infringement allows of the people’s right to keep and bear Arms.

                    1. … unless they’re in prison, apparently.

                    2. Nice one gormadoc troll. Its almost like you can’t read.

                      Prison by itself does not cause you to lose protections of the Constitution.

                    3. You said “Duly convicted prisoners can be slaves, so they lose rights while in state custody.” That is certainly an infringement of that right.

                  2. Are there any “absolute” rights? But what I’ve learned by now is that, if somebody starts talking about the 2nd amendment not creating an “absolute” right, they usually mean that it doesn’t guarantee much of a right at all.

                    1. Exactly, Brett. The “absolute right” rabbit hole argument is an attempt to argue in bad faith. For these people, there is no possible wording of a “right to have weapons” that they would accept as meaning that.

                      They want to grab guns [period]

                      You don’t need the 2A to be an absolute right. You just need to admit that the government cannot make laws that infringe on your right to keep and bear Arms.

                    2. “Are there any ‘absolute’ rights?”

                      No, there are not. All rules about human beings have exceptions.

                  3. You’re wrong in believing that 2A ‘created’ a right.
                    SCOTUS jurisprudence, way back to the 19th century in the U.S. v. Cruikshank case found: The right there specified is that of “bearing arms for a lawful purpose.” This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.

                3. “The 2A is very clear and concise. If your arguing in bad faith, then no Constitutional protection could ever be worded to absolutely protect the people’s right to keep and bear Arms.”

                  So is the rest of the document. The fifth amendment, for example, says that you can be deprived of life, liberty, or property if due process exists. The fourth says you’re entitled to be secure in your person, papers, and possessions… but also allows for a warrant to issue, which allows your person, papers, and possessions to be seized by the government.

                  In your imagination, the second amendment stands alone and absolute. But in the real world, it isn’t either one of those.

                  1. “The fifth amendment, for example, says that you can be deprived of life, liberty, or property if due process exists. The fourth says you’re entitled to be secure in your person, papers, and possessions… but also allows for a warrant to issue, which allows your person, papers, and possessions to be seized by the government.

                    In your imagination, the second amendment stands alone and absolute. But in the real world, it isn’t either one of those.”

                    Both the Fourth and Fifth Amendment have exceptions to the rights they guarantee explicitly written into them. Please show me where the Second Amendment says “except when…” or “unless…” or some other phrasing that states any exception to “…shall not be infringed.”

                    1. “Both the Fourth and Fifth Amendment have exceptions to the rights they guarantee explicitly written into them. Please show me where the Second Amendment says ‘except when…'”

                      In (duh) the fourth and fifth amendments, as I went into, in depth, in the comment you responded to without understanding.

                    2. Poor Pollock, never convinces anyone of anything.

                    3. Wait. The FOURTH and FIFTH Amendments are where the SECOND Amendment says “except when…” or “unless…” or some other phrasing that states any exception to “…shall not be infringed.”?

                      Wow. And you respond to me with duh? The Fourth and Fifth do say that your property can be seized with due process or a warrant. But it says nothing about prior restraint on an enumerated right. Ya know, like the one that says “…shall not be infringed.”

                      If a religious extremist committed acts of terror on US soil and was able to entice others to commit acts of terror by quoting from his holy book is it okay to prohibit his ownership of a holy book? What if someone else used a copy of the same holy book to inspire terrorist acts? Is it then okay to place restrictions on the ownership of these holy books? Waiting periods, UBCs, only certain authorized versions can be owned, limits on loaning or sharing the holy book, government fees on the purchase of the holy books, the holy books can only be read at home unless you have a special permit requiring a state and FBI background check and finger prints, only those 21 years and older may buy them, those with felony convictions are prohibited from owning them, buying them in a state that you don’t reside in is a felony. All of these would be okay because of the Fourth and Fifth Amendments allow prior restraint on an enumerated right according to your logic.

                    4. “Wow. And you respond to me with duh?”

                      Yeah. When you tell me things I already know.

                      “The Fourth and Fifth do say that your property can be seized with due process or a warrant.”

                      Duh. That’s what I said, so you don’t need to tell me this.

                      “But it says nothing about prior restraint on an enumerated right.”

                      Take that up with someone who said it does.

                      “If a religious extremist committed acts of terror on US soil and was able to entice others to commit acts of terror by quoting from his holy book is it okay to prohibit his ownership of a holy book?”

                      Under some circumstances. They’re pretty rare, though.

                      “All of these would be okay because of the Fourth and Fifth Amendments allow prior restraint on an enumerated right according to your logic.”

                      You should avoid talking about logic. You’re not very good at it.

                    5. Oh please enlightened one. Show me any example of any government in the US banning ownership of a Bible or any other religion’s main holy text do to encouraging other to committing terrorists acts.

                    6. Should be “due to’ not “do to”.

      4. As written? Yes.
        Of course, the costs associated with MAKING a W54 warhead (not the Davy Crockett, which was really just a spigot mortar) do an even better job of prohibiting them than any legislation real or imagined every could.

      5. A law banning nuclear weapons in private hands would have to survive strict scrutiny:

        ? It must be justified by a compelling governmental interest.
        ? It must be narrowly tailored to achieve that goal or interest.
        ? It must be the least restrictive means for achieving that interest

        Personally, my guess is that properly written non-proliferation law could pass those tests.

        1. “A law banning nuclear weapons in private hands would have to survive strict scrutiny:”

          Pretty sure it’s already covered by statutes governing possession of explosives.

    2. So I guess these people should be able to have guns: children, prisoners, violent felons, people using drugs, people that are drunk, people covered by protective orders for making threats, etc.

      1. Children: Minors are subject to Age of Majority rules. Minors don’t have the same rights as adults. They cannot enter into contracts, serve in the military, buy alcohol, etc. I for one support a universal Age of Majority for all things- 18 for example. Parents have parental rights, so kids can have guns legally but their parents need to okay it.

        Prisoners: Explained above. Duly convicted prisoners can be slaves, so they lose rights while in state custody. Once their sentences are complete, all of their rights should be as normal especially rights like those protected in the Bill of Rights.

        Violent felons: No difference than any adult unless duly convicted. Ex-violent felons have their rights restored once out of state custody.

        Drug users: No difference than any adult unless duly convicted. Drug crimes are unconstitutional as the US and state Constitutions do not provide the power for the state to ban products and services.

        Drunks: No difference than any adult unless duly convicted. People are responsible for their actions even if drunk, so if you hurt someone with a gun while drunk you are responsible as the law allows.

        TRO: This is an unconstitutional violation of people’s rights. Unless you have been duly convicted for some crime, the state cannot constitutionally restrict who you speak with, where you go, and what you do unless you violate someone else’s property rights or commit a crime.

        1. Minors are subject to Age of Majority rules. Minors don’t have the same rights as adults
          Not in the text of the Constitution, nor in the very clear and concise 2A

          Duly convicted prisoners can be slaves, so they lose rights while in state custody.
          shall not be infringed. Ya damn gun-grabbing Commie.

          Violent felons: No difference than any adult unless duly convicted. Ex-violent felons have their rights restored once out of state custody.
          Is this policy prescription hidden in the Constitution somewhere? I don’t see all this nuance you’re suddenly seeing after your textual ranting in the past.

        2. Children: Minors are subject to Age of Majority rules. Minors don’t have the same rights as adults. They cannot enter into contracts, serve in the military, buy alcohol, etc. I for one support a universal Age of Majority for all things- 18 for example. Parents have parental rights, so kids can have guns legally but their parents need to okay it.

          Prisoners: Explained above. Duly convicted prisoners can be slaves, so they lose rights while in state custody. Once their sentences are complete, all of their rights should be as normal especially rights like those protected in the Bill of Rights.

          Got to love it. He first argues that the 2A is very clear and has no exceptions… and then as soon as people point out examples where such an absolute interpretation would be absurd, he immediately starts inventing exceptions not found in the 2A text.

          I mean, I agree with those exceptions — but once one admits that they exist, one can no longer use the “every single gun law is unconstitutional because the 2A has no exceptions” argument.

          1. I get it, y’all need a living Constitution.

            Once that happens, judges get to decide who gets to keep and bear Arms and what Arms are allowed and which are not.

            Luckily, the only “living” part of the Constitution are the Amendment processes.

            How come everyone cannot be President? Because there are age limits for that office that might conflict with other parts of the Constitution. The intent is clear, you cannot be President unless you are 35 years or older.

            It means that the Constitution limits what the government can and cannot do and sometimes set forth rights that have no exceptions. The Constitution also grants certain rights to people, like the right to a speedy and public trial, and removes some groups entirely from some constitutional protections. Duly convicted persons being one of those groups.

            1. By your own previous logic, it seems like you are the one with a living Constitution.

              1. No, that’s your logic. Logic for you is hard.

                Duly convicted people don’t have all their rights. The government gets to take away some rights, including but not limited to the right to not be a slave.

                1. So vague! Which rights? Is it written down somewhere in the Constitutional text? I can’t find it – I can only presume you’re one of those anti-text guys, which will disappoint loveconstitution1789 basd on his 9:16AM trenchant and assumption-free textual analysis.

                  Maybe you should take it up with him.

                  1. Poor SarcastrO.

                    Another Lefty that hates the US Constitution and the protections is affords.

                2. “Duly convicted people don’t have all their rights. The government gets to take away some rights”

                  If the government gets to take away some rights, then “shall not be infringed” doesn’t mean “shall not be infringed”.

        3. In terms of prisoners, the Fifth Amendment, which is also part of the Constitution states that no person shall “be deprived of life, liberty, or property, without due process of law.” Which means there are circumstances when you can be deprived of liberty (assuming that due process was followed).

          Bearing arms is a form of liberty, as is being free to go where you want when you want. So in that case, at least, there is a clear textual basis for depriving duly convicted prisoners of their liberty right to bear arms.

        4. The 13th amendment provides a specific exemptions to itself for prisoners, the 2nd amendment provides no such exemption.

          Also, does that mean that prior to 1865 prisoners DID have a right to keep and bear arms?

          1. Also, whats the threshold for “a crime?” Can we enslave people over parking tickets?

            1. Hypotheticals are so much fun. There was no such things as parking tickets prior to 1865. In fact, you didn’t even need a license to operate a horse and/or buggy.

              Another fun fact: There were very few federal crimes at the ratification of the US Constitution. So chances are not a single person would be have been a federal prisoner and have their 2A federal right to keep and bear Arms violated.

              So let’s go back to that and get rid of 90% of the crimes listed on the books.

              1. “There were very few federal crimes at the ratification of the US Constitution.”

                At ratification, there was only one federal crime.

                “So chances are not a single person would be have been a federal prisoner and have their 2A federal right to keep and bear Arms violated.”

                Um… oops, at ratification there was no federal right to keep and bear arms, so there were no violations of the federal right to keep and bear arms.

                1. Poor Pollock.

                  1. “Poor Pollock.”

                    Based on your pattern of usage, you appear to think “Poor Pollock” means “dammit, that guy pointed out another time I said something stupid.”

                    So, uh, yeah. I did.

    3. You are deeply confused about how constitutional law works.

      1. You are deeply confused at how the US and state Constitution’s work.

        They are typically very black and white with state power and restrictions.

        Lawyers and bureaucratic assholes have largely manipulated what the constitutions are and what they do and don’t restrict.

        My advice is you read the US Constitution and see for yourself how our federal and state governments have unconstitutionally twisted the law.

        1. 4th Amendment: what’s an unreasonable seach?

          8th Amendment: what’s cruel and unusual? What’s excessive?

          5th and 14th Amendment: what process is due?

          You are wrong that constitutions are black and white. They contain all sorts of amorphous restrictions on state power.

          1. 4th Amendment: what’s an unreasonable seach?

            An unreasonable search

            8th Amendment: what’s cruel and unusual? What’s excessive?

            Punishment that is cruel AND unusual.

            5th and 14th Amendment: what process is due?

            due proc?ess
            /d(y)o?o pr??ses/
            noun: due process; noun: due process of law
            fair treatment through the normal judicial system, especially as a citizen’s entitlement.

            See the rest of the Constitution for the minimum processes like right to speedy and public trials.

            You are wrong that constitutions are black and white. They contain all sorts of amorphous restrictions on state power.

            Notice that I didn’t say ALL Constitutional provisions are black and white. The 1st thru 3rd Amendments are very black and white.

            1. You said they are typically black and white, which was howlingly wrong.

              1. Your citations are supporting facts are very convincing.

            2. You are deeply confused at how the US and state Constitution’s work.

              They are typically very black and white with state power and restrictions.

              I guess we shouldn’t read this textually?

            3. Who gets to decide what is and isn’t unreasonable? You and I may have different opinions on that

              Who gets to decide what’s cruel and what’s unusual? What is the context in which we decide what’s unusual?

              Who decides what constitutes “fair treatment?” Who decides how fast a trial must proceed to be “speedy” And again what context do we use? I imagine what was considered “speedy” in 1782 might not be so today (or perhaps vice versa)

              1. Luckily, the 2A does not use words like unreasonable, cruel & unusual, and fair treatment.

                1. Which interpretation do you follow? Under Heller, the Court explained that the definition of “arms” was:

                  “The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity.”

                  Further, the Opinion goes on to discuss that there were practical limitations–only those arms essential to a well-regulated militia–small arms. Canon and the like were not included. See:

                  ” It may be objected that if weapons that are most useful in military service?M-16 rifles and the like?may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment ‘s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.”

                  1. The SCOTUS is wrong a lot- Legally, Constitutionally, and under rational thought.

                    I don’t need the SCOTUS to tell me that I can keep and bear Arms. All I need the SCOTUS to do is reverse the lower courts that are wrong.

                    Heller only needed to say this: 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.

                    I have machine guns, explosives, armored vehicles, rifles, and much much more because I have the right to keep and bear Arms. I have a FFL to import some of those things because the federal government also has an enumerated power to regulate international and interstate commerce.

                    1. The SCOTUS is wrong a lot- Legally, Constitutionally, and under rational thought.

                      Thank goodness we have your humble self to set us straight, albeit with what appears to be something of a moving target.

                    2. I always set you straight SarcastrO, which is why you come back.

                      You cannot let Constitutional authority stand.

                2. The 2A also does not include words like “crime” or “duly convicted” yet you seem to have no problem invoking them

                  1. Imagine that prisoners dont get to peacefully assemble too.

                    I wonder how that happens? Its almost like being duly convicted and subsequent punishment takes away all rights that every other America gets to enjoy.

                    Its almost like your punishment is that you dont get to peacefully assemble, possess Armaments, freedom of movement, etc. As long as its not cruel AND unusual punishment.

                3. “Luckily, the 2A does not use words like unreasonable, cruel & unusual, and fair treatment.”

                  It is, however, part of a document which does.

          2. “4th Amendment: what’s an unreasonable seach?

            8th Amendment: what’s cruel and unusual? What’s excessive?

            5th and 14th Amendment: what process is due?

            You are wrong that constitutions are black and white. They contain all sorts of amorphous restrictions on state power.”

            I don’t say this often or lightly. Dilan, you are right. There are all sorts of amorphous restrictions on state power because some of the wording is subjective. “Unreasonable”, “excessive”, “cruel and unusual”, “due process” are all open to interpretation.

            Tell me please how do you interpret the phrase “shall not be infringed”?

            The definition of “infringe” includes “to limit or undermine”. “Shall not” is pretty clear. “Be” is obvious. So what is your interpretation?

            1. “Tell me please how do you interpret the phrase “shall not be infringed”?”

              As part of a document that describes when and how rights can be infringed?

              1. I notice you didn’t answer the last question. What does “shall not be infringed” mean?

                While your at it care to take a stab at why the only right to be protected with the phrase “shall not be infringed” is the only one that is constantly subjected to prior restraint?

      2. Why aren’t you at your post?

  2. This case seems right because the crime had nothing to do with guns or violence.

    But I really don’t like the treatment of his crime. He didn’t just posess false documents. He lied in court and obstructed justice, using his falsified documents to procure an acquittal of a crime he was guilty of. He was actually very lucky prosecutors didn’t charge all the offenses he actually committed. He should have gotten a few years in prison for that.

    1. He could have gotten a few years in prison for that. He shouldn’t have, because we already have an overincarceration problem, and locking people up for years for non-violent acts with no victims is a bad thing.

      Yes, one could describe what he did as obstruction, and that’s in principle worse than having tinted windows or having false documents saying that one can have tinted windows. But at the end of the day the only thing he actually obstructed was a prosecution for having tinted windows. A year’s probation seems about right for that.

      1. ” locking people up for years for non-violent acts with no victims is a bad thing.”

        Respectfully disagree with your assessment of whether or not there are any victims, AND whether non-violent acts should be categorically non-punishable by being locked up for years.

        1. Well, I didn’t say that “non-violent acts should be categorically non-punishable by being locked up for years.” I said “non-violent acts with no victims.” Whether you mistakenly disagree with me about whether there were victims of him lying about whether he was allowed to have tinted windows or not doesn’t change the fact that the category I described was victimless non-violent crimes.

          1. “Well, I didn’t say that'”non-violent acts should be categorically non-punishable by being locked up for years.’ I said ‘non-violent acts with no victims.'”

            And you just said that it was “bad”, not that we should change anything. I apologize for assuming you meant to imply reasonableness.

    2. Regardless of what somebody might hypothetically have been charged with, you’re only legally guilty of what you actually were convicted of, and the government has to treat you on the basis that you’re not guilty of anything more.

      1. That last part is not true. There are many situations where the government can consider conduct that did not result in a conviction.

        1. Not for depriving you of a civil right, they can’t.

          1. Sure they can. People have lost custody of their kids over such conduct.

            1. Because the standard there is the best interest of the child. It’s not meant to be a punishment of the parent.

          2. “Not for depriving you of a civil right, they can’t”

            This is flatly incorrect.

            If the cop is lawfully stopping you and tells you not to reach for your handgun, but you do it anyway, you may wind up dead, which is a pretty significant violation of your civil rights.

            Even though you haven’t been convicted of anything.

            See also: Civil Asset Forfeiture.

        2. But the question is whether what he did means he should be stripped of his Second Amendment rights. The judge got it right here — he did a minor infraction (unlicensed tinted windows) and then made it worse by fabricating evidence and lying about it. Nothing violent about it. And it has now been twenty years with a completely clean record. The notion that the Government has any interest in preventing him from possessing firearms is absurd.

          1. “But the question is whether what he did means he should be stripped of his Second Amendment rights”

            In a way. In another way, the question is whether what he did means he should have lasting consequences. (More correctly, should the next guy, and the guy after that, etc.)

    3. “He should have gotten a few years in prison for that.”

      On one hand:

      I agree that falsifying court documents etc is a serious thing.

      OTOH:

      At least today, PA gives the window tint exceptions for medical reasons; I suppose some kind of eye condition. He had been granted an exemption in the past, but hadn’t renewed it when he got a new car. Perhaps that was because his condition had improved, or perhaps he still had the condition and could have transferred the permit. If, in fact, he could have gotten an exemption again if he asked, and merely was trying to dodge a fine for something he would have been allowed to do with the right paperwork, tying up a prison cell for years seems rather over the top.

      I think some jurisdictions outlaw possession of hypodermic needles w/o paperwork. If you catch a diabetic w/o the paperwork, and they try to scam their way around it, is it really worth jailing them?

      Jail cells aren’t free; in addition to the direct costs there are opportunity costs. For example this was in today’s news: 24-time convicted felon allegedly breaks into home while out on bail. I’d rather lock that guy up than our window tinter.

      1. I think the scam has to stop when you get to court. You tell the judge the truth, or take the 5th. Obstruction of justice is intolerable.

        1. “Obstruction of justice is intolerable.”

          So you would prescribe, what? Capital punishment for this guy?

          1. No. But significant prison time.

            I was one of the few liberals who HATED what Bill Clinton did back in the day. Obviously nobody wants to admit they had an affair, especially with a 22 year old intern. But when you get into a couer proceeding, that’s different. And he lied under oath twice to conceal his conduct (and fhe second time, the 5th Amendment was fully available to him).

            I take crimes against the court system very seriously.

            1. He didn’t just lie under oath. He suborned perjury from others, too, and had his staff going around collecting and destroying evidence under subpoena. And they sprang to it like a well oiled machine.

              I’ve always thought, given the number of investigations of him that just sort of petered out as evidence vanished and witnesses clammed up, that he was very practiced at this. His affair with Monica was the rare exception where he failed to destroy all the evidence, and so got caught.

              Democrats like to think it was the only case where he was actually guilty, but really, it was just the only case where his obstruction of justice was less than successful.

              1. “Democrats like to think it was the only case where he was actually guilty, but really, it was just the only case where his obstruction of justice was less than successful.”

                I like the way you set this up. The reason you can’t provide any evidence to support your claim is because he was guilty! Clever. Unpersuasive, but clever.

                (BTW: Pretty sure Democrats like to think that whether or not Bill had affairs with women who weren’t his wife was not their business, not that they didn’t happen. But if you need that to make your theory hold together, well… that’s not my problem.)

          2. “‘Obstruction of justice is intolerable.’
            So you would prescribe, what? Capital punishment for this guy?”

            Is there nothing in between?

    4. “an acquittal of a crime he was guilty of.”

      Having tinted windows?

      The fiend. Just like Manson or Ted Bundy.

      1. So there’s an exception to laws prohibiting lying and forgery and obstruction of justice where the underlying offense is minor?

        1. You are confusing whether something is legal and how severe it is.

          The severity of obstruction is measured, in part, by the crime that was obstructed. Obstructiing justice when the prosecutor is seeking to go after a Mafia don that ordered hits on 25 people is several orders of magnitude different than obstructing justice on a charge of unlicensed tinted windows.

          1. I don’t deny that.

            That doesn’t, however, mean that forging documents to beat a traffic ticket is a minor offense. It’s still very serious.

            1. Its not serious at all. The prosecutor and court agreed that it was not serious by the charges and sentences.

              The underlying law is stupid. I can’t expect prosecutors and judges to completely ignore it but as a juror, I would.

              1. “Its not serious at all”

                Forging documents to evade justice is not serious?

                So you’re OK with it when the illegal immigrants use identity theft to avoid detection when they go to work?

  3. By the bye, my first boss when I started out used to do some white collar criminal cases. He often told me that he felt that jail was a waste in these cases. Rather, he felt, they should be sentenced to some period of time changing bed pans at the local VA hospital, something useful and humiliating.

    That, IMO, would have been appropriate here. Instead of a year’s probation, how about a year where once a week you have to change bed pans at a local hospital?

    1. Fines are probably an effective tool against people who commit white collar crimes. No reason that these people should keep the fruits of their crime.

    2. A $100 fine would have been right.

      His crime was no more serious than speeding. Maybe less, you can hurt someone if you speed, tinted windows have never hurt anyone.

      1. I would not go that far. He fabricated evidence and presented it to a judge. That’s more than unlicensed tinted windows.

        1. Shrug.

          The tinted widow law is a stupid useless law passed by stupid useless busybodies. He should never have came to trial.

      2. The crime of tinted windows is laughably minor but the crime of lying to and misleading the courts isn’t. It’s more serious than speeding and duly paying the ticket.

  4. How does that work in California, where being charged for a felony but sentenced to jail/probation instead? I’ve read some suggestions that automatically reduce the felony to a misdemeanor in that state.

  5. A lot of ink spilt in this comment section. And for once it wasn’t started by Arty Cuckland.

    Anyway, I do not understand the deferential standard of intermediate scrutiny that is given to the Second Amendment. Especially since in the eyes of most of the circuit courts the rationale “guns are dangerous!!!!!” is enough to satisfy the standard.

    I suspect that the COA are going to be getting some cert related bench slaps coming up here next term related to the 2nd Amendment now that the New York case is on the docket. Can’t say they haven’t been warned a few times from cert denial dissents and the Mass. stun gun per curium.

  6. “Based on the asserted authenticity of this certificate, he was found not guilty of the window-tint violation. After the hearing, the patrolman who had originally stopped Miller requested a copy of the PennDOT certificate that Miller had proffered to the court. When the patrolman attempted to verify its authenticity, PennDOT informed him that Miller had never obtained a window-tint exemption for his new car.”

    Let’s take this in a slightly different direction: Fourth Amendment!

    Did the patrolman have a legitimate investigative need to obtain a copy of the certificate? Once the hearing was over, and the defendant was found not guilty, what would be the probable cause for the patrolman to ask for and receive a copy of the certificate? Surely no ordinary citizen would be able to walk up to the PennDOT office and ask for it, nor would any ordinary citizen be allowed to attempt to verify its authenticity. Was the patrolman just fishing? Isn’t the Fourth Amendment supposed to protect folks from that?

    1. Um, no?

  7. >> the court says, violates the Second Amendment

    Wrong. Violation of a statute, 18 USC 922, which is unconstitutional. See http://constitution.org/col/psrboa.htm

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