Guns

The Second and Sixth Amendments

If a state criminal conviction leads to denial of gun rights under state law (not just federal law), the defendant must be given the option of a jury trial, rules the Nevada Supreme Court.

|The Volokh Conspiracy |

The U.S. Supreme Court has held—largely on originalist grounds—that the Sixth Amendment right to jury doesn't apply to "petty" criminal offenses. (The leading case on this is D.C. v. Clawans (1937), but it has been reaffirmed since then.) Generally speaking, the test for a petty offense is whether the criminal statute authorizes a punishment of more than six months in jail for it (regardless of how much punishment is actually being imposed in the particular case). But other consequences, such as very high fines can also lead a crime to be treated as serious, and thus subject to the jury trial guarantee, and not just petty.

In yesterday's Anderson v. Eighth Judicial Dist. Ct., the Nevada Supreme Court concluded that the loss of gun rights also makes the crime serious, even if it would otherwise lead to a maximum of six months or less in jail:

[T]he United States Supreme Court has established that an offense with a maximum authorized period of incarceration of six months or less is presumptively petty. To overcome this presumption, and to demonstrate that an offense rises to the level of seriousness to warrant a jury trial, a defendant must "demonstrate that any additional statutory penalties, viewed in conjunction with the maximum authorized period of incarceration, are so severe that they clearly reflect a legislative determination that the offense in question is a serious one." …

First-offense domestic battery is a misdemeanor crime, with a maximum authorized period of incarceration of six months…. We previously considered the additional penalties imposed by the offense of first-offense domestic battery [a community-service requirement of not more than 120 hours and a fine of not more than $1,000] and concluded that those penalties did not "clearly indicate a determination by the Nevada Legislature that this is a serious offense to which the right to a jury trial attaches." However, just over one year after our decision …, the Legislature amended the penalties associated with a [first-offense domestic battery] conviction … to criminalize possession or control of a firearm in this state by a person who "[h]as been convicted in this State or any other state of a misdemeanor crime of domestic violence as defined [by the federal statute banning gun possession by people convicted of such a crime]." It is this amendment that … commands the conclusion that misdemeanor domestic battery is a serious offense.

In [the earlier case], we held that a federal regulation restricting a convicted domestic batterer's possession of a firearm was not a direct consequence of a Nevada conviction for misdemeanor domestic battery. In so holding, we relied partly on the United States Supreme Court's reasoning "that the statutory penalties in other States are irrelevant to the question whether a particular legislature deemed a particular offense 'serious.'" But now, although not included in the statute proscribing misdemeanor domestic battery, our Legislature has imposed a limitation on the possession of a firearm in Nevada that automatically and directly flows from a conviction for misdemeanor domestic battery.

In our opinion, this new penalty—a prohibition on the right to bear arms as guaranteed by both the United States and Nevada Constitutions—"clearly reflect[s] a legislative determination that the offense [of misdemeanor domestic battery] is a serious one." Unlike other penalties that we have concluded are not serious[—such as] a fine in the range of $200 to $1,000, loss of one's driver's license for a period of 90 days, and mandatory attendance of an alcohol abuse education course at the defendant's expense)[—]the right affected here convinces us that the additional penalty is so severe as to categorize the offense as serious.

For a different result, see the federal magistrate judge's decision in U.S. v. Jardee (D.N.D. 2010).

NEXT: Kamala Harris Does Not Understand Why the Constitution Should Get in the Way of Her Gun Control Agenda

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  1. Personally, I feel that a conviction for domestic battery should prohibit a person from exercising their third amendment rights. A marine squatting in the living room should have a pretty good deterrent effect on repeat offenders.

  2. Sounds reasonable. If a conviction that will trigger deportation deserves special rights, a loss of gun rights should too.

    1. It’s common sense, no matter how one feels about the scope of the Second Amendment. Clearly, stripping someone of their gun rights is additional punishment, so constitutional strictures should apply to it.

      1. “Clearly, stripping someone of their gun rights is additional punishment”

        I’m not so sure this is clear. There is a segment of the population who chooses not to exercise the right to possess a firearm, and another segment whose economic situation forces this choice. Stripping them of a right they choose not to exercise… as a punishment… seems pretty low-key.

        Better to stick with the terminology of “deprivation of rights” rather than “punishment”.

        1. That’s true of every right, yet we still refer to them as “punishments.”

          1. So it would be a punishment to strip you of the right to make meaningful contributions to discussion on the Internet?

  3. If this percolates upwards and outwards, I wonder how much it would affect red flag laws and their ridiculous one-sided hearings.

    1. How much *would* it? Little. How much *should*it? Very much.

    2. This opinion is authoritative in Nevada, and outside of Nevada, probably close to nil influence.

  4. “The U.S. Supreme Court has held—largely on originalist grounds—that the Sixth Amendment right to jury doesn’t apply to “petty” criminal offenses.”

    From D.C. v. Clawans (1937): “It is settled by the decisions of this Court, which need not now be discussed in detail, that the right of trial by jury, thus secured, does not extend to every criminal proceeding.”

    Article III, Section 2: “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury.”

    In Federalist 84 Hamilton presented his counter-argument to Anti-Federalists who were opposed to the constitution because it lacked a bill or rights. He claimed that the constitution, as adopted by the convention, already contained several provisions protecting the rights of citizens under the national government. He specifically includes the right to trial by jury, quoted above. That is, this provision of the constitution was present prior to the adoption of the first 10 amendments.

    The court in Clawans does not even acknowledge the language of this provision, particularly the use of word “shall,” which would seem to make it mandatory. Pointing to English cases differentiating between petty and serious offenses may be helpful, but the ultimate question would be whether, in those cases, the English courts distinguished crimes even in the presence of a written constitutional requirement for trial by jury that included the term “shall.” Likewise with the reference the opinion makes to the state cases; did the constitutions of the state include such a provision, and if so, what was the judicial rationale used to avoid the commanding language of “shall.”

    I certainly recognize that commanding language in the constitution can be set aside so that interests can be weighed. But the court should this in the opinion rather than just sidestepping the question. However, I also understand that the term “shall” restricts the national government as it takes on a broader sphere, such as legislating for an entire district. “Updating” the language to handle this increased activity is another mode of interpretation, and it appears that the Court in Clawans did just that.

    1. “The court in Clawans does not even acknowledge the language of this provision, particularly the use of word ‘shall,’ which would seem to make it mandatory.”

      Prior to the 14th amendment, the BoR was largely held to apply to the federal government but not the states. Seems this provision lies in the same category.

      1. So if the case involved the District of Columbia and not a state, you’d agree with my claim?

        1. You mean, if the case involved the District of Columbia in 1867?

          1. It appears you and I are reading and responding to different articles.

            1. It appears we have different opinions as to whether or not the 14th amendment exists.
              I’m going to stick with “yes”.

    2. “In Federalist 84 Hamilton presented his counter-argument”

      Hamilton was a liar and a cheat. He told his state ratifying convention that the Commerce clause even combined with the necessary and proper clause would in no way authorize the federal government to create a national bank. However, one of the very first things Hamilton did as our first Secretary of the treasury was to create a national bank.

      How Alexander Hamilton Screwed Up America

      1. Are you trying to excommunicate Hamilton from being a founder, or argue the Federalist Papers aren’t a useful primary source?

        1. I’m not sure what Slyfield is going on about, but your comment makes a good point. I certainly think the Federalist papers are an excellent source for understanding our constitution. But, they were also written with the goal of persuading people to support it against anti-federalist arguments. One way of calming the fears of the opposition was to downplay the implications from some of the terms, such as the necessary and proper clause. If your opponents are arguing that this clause will be used to expand national control in all areas, you respond with ‘no, no, no, your misreading it. It will have a much smaller impact.’ Once ratified, your good to go.

          It is ironic that the Federalists, who sought a strong national government, have become the primary source for originalists in their attempt to shrink the national government. The anti-federalist, who were often ultimately correct in their interpretation, are simply ignored, as if they had the wrong “public meaning” in mind.

          1. Quantum, you make good points. They apply especially in the case of Hamilton, who was notably less forthright than Madison.

          2. “But, they were also written with the goal of persuading people to support it against anti-federalist arguments.”

            This is key. People treat the Federalist Papers as if they were nonpartisan commentaries about the text of the Constitution. Hardly. They were propaganda pieces trying to convince people that the Constitution was good, at a time when the document received a lot of criticism. Like any propaganda piece, they combine truthful statements with various forms of exaggeration, minimization, and sometimes outright lying.

            Which makes them pretty much useless as an interpretative device, whatever interest historians have in them.

            1. “Which makes them pretty much useless as an interpretative device”

              “Pretty much useless” is a pretty broad overstatement.

            2. To use the Federalist interpretively, you have to apply a sort of mirror vision, especially in the case of Hamilton. Hamilton’s contributions should not be read incautiously, as straightforward indicators of meanings the founders who prevailed in the constitutional debate intended. Instead, they help modern readers interpret the meanings the anti-federalists would have preferred. By comparing what Hamilton said to them in the Federalist, to Hamilton’s otherwise-stated views during the convention, and afterward, you get some insight into what the anti-federalists were about, and what their frustrations were.

            3. Not useless, they just need to be read together with the Anti-Federalist papers. You need to read both sides of the argument.

              1. And note that the Federalist Papers are the ones that carried the day with the American polity of the time.

                To my non-originalist self, that’s important but not determinative at all. I leave it to originalists to curate their own understandings.

                1. Note that the very existence of the Bill of Rights says that the federalists did not entirely carry the day, since the federalists didn’t WANT a Bill of Rights.

                  Rather, the federalists only prevailed on adopting the Constitution by agreeing to the anti-federalists’ demands.

        2. He’s one of the founders even if he was a liar and a cheat. It seems clear from the historical record that he wanted a much more powerful central government than most were comfortable with, and worked towards that end.

        3. “or argue the Federalist Papers aren’t a useful primary source?”

          A useful primary source for what? For interpreting the constitution, no, they aren’t particularly useful, unless your goal is unlimited all powerful government.

      2. The book is titled “How Hamilton Screwed Up America” (book equivalent of clickbait) and is published by Regnary Publishing, which states on its website: “Regnery Publishing has been a leading publisher of bestselling conservative books since 1947. Browse our website to check out classic books and new releases from our bestselling conservative authors.”

        You must be using David Bernstein’s American history syllabus.

  5. Domestic battery isn’t tried in front of a jury? Is that a Nevada thing or everywhere?

    1. Yeah, it varies. Where I grew up you could demand a jury trial for a speeding ticket, and jury decisions had to be unanimous.

      It was astonishing to find that in some states you don’t get jury trial for “minor” things like six months imprisonment, and that in others they’re fine with a 9-3 vote.

      1. AFAIK, Oregon’s the only state that allows non-unanimous verdicts, and they require 10-2.

  6. Seems reasonable, but incomplete. In every case of accused domestic battery, there are not one, but two, parties with vital interests in the gun disposition outcome. The decision gives short shrift to the alleged battery victim, who will be at risk of less legal protection if prosecutors have discretion to avoid burdensome jury trials by making bargains to let the accused keep the gun. So to complete the logic of the ruling, there needs to be a requirement that every allegation of domestic battery gets tried before a jury, if the alleged batterer was in possession of a gun. No plea bargains.

    1. IMHO, justice demands that we abolish plea bargains entirely. They’ve led to tactical over-charging and bargaining back, where even an innocent defendant might agree to plead guilty to a lesser offense, just to avoid the ruinous cost of a trial, and the off chance they’d be convicted anyway.

      All trials should be jury trials unless the defendant pleads guilty without any urging, and acquitted defendants should be made whole for any costs resulting from the prosecution.

      1. I can see what you’re saying, but I’d bet the upshot of such a policy would be a lot more people getting far more harsh punishments. Criminal defendants are massively disadvantaged vs. prosecutors and the criminal justice system that’s behind them, one of the few things they have is their potential threat to the time of the prosecutor. This allows them to often get ‘half a loaf’ where, likely, none would be the alternative…

        1. “but I’d bet the upshot of such a policy would be a lot more people getting far more harsh punishments.”

          Actually, I’d bet in the opposite direction. Some 90% of criminal cases currently end in plea bargains. Most DA’s offices don’t have the resources to bring even half those cases to trial before a jury.

          Prosecutors would be forced to let a lot of cases go without plea bargains.

          1. ” Most DA’s offices don’t have the resources to bring even half those cases to trial before a jury.”

            So when the plea bargains go away and the prosecution budget goes up, the defendant still gets an overworked, under-resourced public defender, and you figure that goes to the benefit of the defendants?

            “Prosecutors would be forced to let a lot of cases go without plea bargains.”

            But in the ones they pursue, they’ll have to seek bigger, harsher punishments to make it worth their effort.

            1. While pushing up the seriousness of the charges, and the potential penalties, increases the urgency to plead guilty to a lesser charge, it also increases the chance that a jury will just acquit, being convinced that the defendant wasn’t guilty of THAT.

              1. It’s already true that if the prosecutor selects charges that he can’t prove, he risks losing at trial. One of the reasons the accused gets counsel is to advise him (or her) that the prosecutor is going to be unable to prove the charges if the prosecutor overcharges.

            2. “So when the plea bargains go away and the prosecution budget goes up”

              There are significant limits on state an local governments abilities to raise taxes. I consider it exceedingly unlikely that prosecutor and court budgets would increase by enough to compensate for the lack of plea bargains.

              “But in the ones they pursue, they’ll have to seek bigger, harsher punishments to make it worth their effort.”

              Why? That makes no sense at all.

    2. “In every case of accused domestic battery, there are not one, but two, parties with vital interests in the gun disposition outcome.”

      Can you compare and contrast ‘domestic battery/guns’ with say ‘rape/prison’, ‘mugging/prison’, ‘assault/prison’ etc? For example, a stranger is accused of grabbing a jogger in the park and raping her, or a mugger takes a wallet at knifepoint, or a road rager permanently disables someone with a tire iron. Don’t those victims (and future victims of the same perpetrators) have a vital interest in the outcome of the trial?

      Do we, as Brett suggests, eliminate plea bargaining altogether, or do we allocate our limited judicial resources more to taking away guns and less to putting rapists in prison? It’s not clear to me that that’s the right tradeoff.

      1. Pretty easy contrast to make. You mentioned, “a stranger.” Knowledge that conviction for domestic battery will lead to loss of gun rights is a useful deterrent, protecting mainly women who live in continuing relationships with gun owners. How many mugging victims have continuing relationships with their assailants?

        I think you, and the judge in this case, are letting sensitivity to protecting guns for criminals get in the way of any thought for protecting victims. If you are so worried about husbanding “limited judicial resources,” then maybe the status quo was a better way to do that. Perhaps you don’t like that, because, once again, it hampers gun possession among criminals who beat women—beaten women apparently being a concern less accessible in your mind than your concern for protecting as a principle gun possession for everyone.

        It has become almost habitual among pro-gun advocates to let enthusiasm for protecting gun rights lead into near-advocacy on behalf of gun violence. Whenever I advocate gun regulations, I try to check what I propose against a standard that I should not go too far, and end up advocating confiscation, or prohibiting self-defense with a gun. I wish I saw any sign that gun advocates reciprocate that care to limit arguments, but I don’t. With you guys, its all total war and no restrictions, all the time.

        Leaving moral questions aside, I think you are going to pay a practical price for that, when your opponents sometime get sufficient political power to do whatever they want, as they will. Unless you take advantage of this moment of pro-gun ascendance to start limiting your own claims, it seems inevitable that you will face unlimited counter-measures as a response. To teach self-restraint to would-be gun controllers, wouldn’t it be better to start modeling some self-restraint yourselves?

        1. “mainly women who live in continuing relationships … How many mugging victims have continuing relationships with their assailants?”

          So, it’s more important to protect people in ongoing relationships from one specific person, than to protect all future victims of muggers/rapists/road ragers? Those all generally continue to generate new victims; does it matter so little that each is victimized only once by this particular perpetrator?

          “(the usual long screed about guns)”

          I’m all in favor of imprisoning wife beaters. Whether they use a gun, a knife, or their bare hands. In general, I’m in favor of imprisoning people who victimize other people, regardless of the particulars, and I’m especially in favor of imprisoning people who do violence to others, regardless of the instrumentality.

          Viewing everything through a gun prism gives a rather distorted view. It’s like MADD – it’s great to get drunks off the road, but I really don’t care if the driver who kills me does so because they’re drunk or because they were texting or racing; I just want unsafe drivers off the road. Activists who don’t look at the big picture … are likely to come up with suboptimal policies.

          1. I’m fine with optimal policies. Optimal policies usually pick and combine choices from multiple columns. They almost never rely exclusively on subject changes. Until I see pro-gun advocates willing to take a step backward on gun issues, and meet gun controllers halfway, I am not in the least interested in gun advocates’ notions of which other issues I ought to prioritize first.

            1. “I am not in the least interested”

              Precisely so; you have an intense interest in restricting guns. If doing so has a happy side effect of making people safer, great, but it’s not your priority.

              I come from the other direction: I’m primarily interested in people’s safety. If tightening gun rules will do so, great, I’m on board. Or if loosening gun rules does so, great, I’m on board for that as well. But fundamentally, my interest is in stopping violent people, whether that involves guns or drunk driving or bare hands.

              It’s just silly. Our society has spent decades arguing about bayonet lugs, and for the love of God that’s an argument has absolutely nothing to do with safety.

              1. I deplore the wasted time and silly arguments as much as you do, maybe more. I am not convinced that you do so on behalf of finding better arguments.

                Most of the pro-gun advocates commenting here, maybe you too, are adamantly opposed to trying any policy which might work to increase safety, including even policies which do nothing at all to restrict guns. Some policies, for instance, would only serve to increase public knowledge about guns and gun effects. But even those have been opposed.

                The fear is clearly that compiling systematic info might point the way to valid solutions, which would increase safety, but do so in ways that would lead to unwanted restrictions on guns. There is not much intellectual integrity in saying, in effect, I want more safety by any means, but not more information which might identify those means.

                Would you join me in calling for an all-out, adequately funded effort by the federal government to systematize gun crime information, requiring computerized records be compiled according to standard criteria? The aim would be to mobilize as many jurisdictions as could be persuaded to cooperate to record gun types, ammunition types, shooting outcomes, shots fired, numbers and personal characteristics of victims, specific injuries caused, medical expenses, and causes of death, together with a detailed history of the sales and owners of every gun used in crime. Likewise, for every gun used to prevent crime. The aim would be to identify systematically whether some gun types are associated with more criminal mischief than others. That would be done with an eye to determining which gun types might be unreasonably dangerous, and which might be unusually beneficial. You on board with that?

                1. The data you seek is widely available, and was even when I started looking into gun violence issues in the early 1990’s. You mistake your reluctance to look up the available data with the data not being available.

                  The cliff notes version is: you can divide guns into long guns and handguns, which have markedly different effects and usage patterns. Within those two categories, the other details don’t appreciably matter. But don’t take my word for it, look at the available data yourself.

            2. “…meet gun controllers halfway…” As in, if I have $20 in my pocket, I should give you $10 and we can negotiate on how much of my remaining $10 you might take. Nope, sorry. You’ll have to pry it from my cold, dead money clip.

              1. 50% is a pretty oppressive tax rate, granted, but the tax collector doesn’t mind collecting from your cold dead money clip, so your analogy breaks down a bit.

        2. The issue isn’t about gun rights. It’s accused rights to a jury trial. Nobody is saying the gun shouldn’t be taken away, only that if it is, the accused gets to talk to a jury.

          There are jurisdictions where people are entitled to jury trials for speeding tickets.

  7. Or better yet, repeal 18 USC 922(g) in its entirety. Not only is it blatantly unconstitutional, it’s illogical. If a person is too dangerous to be trusted with a gun, he shouldn’t be allowed on the streets at all.

    1. RWH, that is a bad argument. Plenty of people are too dangerous to trust with guns only because they are inept, generally feckless, or deluded. In many such cases, they do not intend harm, and can’t do much harm, unless they get a gun.

      1. Yeah, they can still stab people, push people in front of moving trains, and all sorts of other things. If they’re dangerous, lock them up

        1. RWH, did you notice how you ignored the point you are ostensibly replying to—the part about, do not intend harm?

          1. I assumed you meant “were mentally incapacitated so did not intend harm,” but if you meant purely that they might have an accident, that’s so rare it’s barely worth discussing.

            1. I meant both. And the accidents, construed broadly, are by no means uncommon. For instance, people who hunt—or just go where others are hunting—get shot at surprisingly frequently, often without ever being seen, but sometimes because they are mistaken for game. Being mistakenly shot at while hunting has happened to me multiple times.

              The other kind of shooting has also happened. In Washington D.C., I was shot at repeatedly by a paranoid schizophrenic who was doing his level best to kill me, but missed. He, of course, was adding to the national total of defensive gun uses, since he was sure I was an agent from the FBI and CIA, put in the building we lived in to spy on him (he was the building manager). I was running and dodging. He was shooting and yelling, shouting that God was going to judge me.

              Back to hunting, I also had two hunting buddies who, before I met them, had each been shot with bird shot. One was shot when he was obscured from view by some tall sagebrush, and got shot in the face through the bush. The other was shot by a hunting buddy, in a classic swinging-on-a-flying bird accident.

              When I was in the newspaper business in Idaho, I once got a press release from the Fish and Game Commission announcing that the average rate of gun fatalities committed by hunters was 7 per year. Every year, each such shooting got reported with its own release. None that I knew of were ever prosecuted, so presumably those were all regarded as excusable accidents.

              In another incident reported in a different newspaper, there was the story of a pawn broker who was robbed, pistol whipped, but still determined. The instant he could get up, the pawn broker grabbed the loaded shotgun he kept behind the counter, and pursued the robber into the alley behind his store. There he encountered an automobile being driven straight at him. He blasted the windshield with whatever load he kept in the shotgun (that went unmentioned), bringing the car to a halt. Whereupon he discovered he had just shot up the car of a little old grandmother, who miraculously escaped without serious injury.

              In yet another shooting I covered in my own newspaper, a town resident was roused from sleep at 1 in the morning by someone banging on his door, and demanding entry. It turned out to be a mentally incapacitated drunk, whose girlfriend had ditched him in a nearby bar. The drunk thought he was demanding entry to her house, but was fatally mistaken about the address.

              I could actually go on with other examples, but I think you get the drift. And, most likely, you are incredulous that my experience is typical of anything meaningful.

              Where you are mistaken, I am guessing, is that maybe you have not actually lived in the kind of society where nearly everyone goes armed. People who do live in such places, such as in inner city ghetto neighborhoods, do not find my experience at all surprising. They have their own histories like mine to tell about. Mostly, gun advocates from the safer suburbs are the people who think mistaken gun violence is, “so rare it’s barely worth discussing.”

              Here is something to think about. Health records seem to show about 100,000 non-fatal shootings a year, for which people are hospitalized. That makes those about 3 times more common than traffic fatalities. Almost everyone I know has been personally touched by a traffic fatality, if only of a high-school classmate, or some other person with whom they are distantly acquainted. That means that if shootings were as randomly distributed as traffic fatalities, almost everyone would be aware of multiple shootings which produced injuries among his own circle of acquaintances. When you hear from pro-gun advocates, however, there is no sign of any such awareness. I am not sure how to account for that. It may mean that the folks most concerned about having a gun for self-protection are people who live in areas where they are least likely to need it.

              1. “Health records seem to show about 100,000 non-fatal shootings a year, for which people are hospitalized.”

                WISQARS numbers for the last 15 years show roughly 70K emergency room visits per year for firearms injuries. For context, the similar numbers for bicyclists is 500K, for dog bites it’s 350K, for pedestrians it’s 180K, etc. ANSI lists 130K annual ladder related ER visits (with 300 annual deaths). Which makes the annual death toll from ladders half again the mass shooting toll.

                And for fatalities, last year’s firearm number was 486. Bicycles were 1024, drowning 3709, house fires 2432, non-drug poisoning was 3484, etc.

  8. If you can’t deny the right to trial by jury for an offense if the penalty includes losing the right to keep and bear arms, it logically follows that, if an offense did not allow the right to trial by jury, you can’t use it as a basis for denying the right to keep and bear arms.

    The Lautenberg amendment was upheld by the Court at a time when it wasn’t yet admitting that the 2nd amendment guaranteed an individual right. That decision desperately needs to be reexamined in light of Heller.

    Not to say that it was justifiable in the first place, in as much as the Lautenberg amendment also violated the ex post facto clause…

    1. Not necessarily. If the Supreme Court wishes to, it can impose a rule that crimes that carry a punishment of stripping someone of the right to keep and bear arms must be tried by a jury. That might be a very good idea.

      But that doesn’t mean that such a rule would be retroactive, or that a law that decides that existing convictions are evidence of dangerousness violates the Constitution. Any more than if the Supreme Court held that a certain sort of offense had to be tried by a jury, and made it non-retroactive on collateral review, that would mean that past convictions had to be erased and expunged from everyone’s criminal record and not used as priors if they get arrested again.

      1. The theory behind judicial review is not that the courts are empowered to repeal laws, but rather that they are empowered to take notice that purported “laws” are not and never were laws due to exceeding the delegated powers of the legislature, or conflicting with some constitutional provision. Retroactive application is inherent in this theory.

        Norton v Shelby: “An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.”

  9. This is close to my view of this issue, namely, full due process before a fundamental right can be suspended, beginning with probable cause of a crime to justify a warrant, and proceeding to an adversarial hearing wherein the respondent can face accusers, cross-examine witness and present witnesses and evidence in his/her own behalf, a priori, not post facto.

  10. I don`t know but i have seen many online stores are selling Sig p365 guns.

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