Ban state and Grandpa's hidden whatever

[Glenn E. Meyer]

We are not discussing Trump's rationale for whatever he does.

The point made now and before was that the National Emergency powers could be used to declare gun violence as a national emergency and ban certain weapons and accessories.

Nancy Pelosi raised that possibility. The use of National Emergency and Executive orders for other seeming unconstitutional actions is a real threat to the RKBA.

The bump stock ban at the initiation of a President (who may be your God or Devil, we don't care for the political debate) indicates that such actions are a possibility.

It is also the case that thinking that some savior exists on the Supreme Court may not be a good bet. In the past, SCOTUS has gone along in moral panic with clearly unconstitutional actions.

NO BORDER WALL, pro or con.

 

[zukiphile]

While the National Emergencies Act of 1976 may itself be defective, and congressional re-assignment of its own power over the last century to the exec is itself a queer thing, an exec announcing an emergency isn't itself precedent. If the current announcement culminates in an illegal application of existing funding, that will be a constitutional problem, but it isn't one yet. One needs to now where the money comes from before making an effective argument against the funding.

That Nancy Pelosi's reflex was to see the opportunity to abridge a civil right is informative.

Whether the problem one foresees facing is an exec whose appreciation for constitutional limits is outweighed by his ambition or his pen an phone, or the problem is a congressional caucus that doesn't accept the legitimacy of the rights described in the 2d Am., a constitutional remedy is a Sup Court that imposes legal limits on both. The Court needs to be composed correctly in order to do that.

 

[SIGSHR]

"Three make keep a secret if two of them are dead." What Ben Franklin said in 1735 is even more relevant today. Social media has made people very indiscreet.

 

[Tom Servo]

The use of National Emergency and Executive orders for other seeming unconstitutional actions is a real threat to the RKBA.

I'm not sure. The current declaration simply shuffles money around to fund a construction project. To some extent, the President has that power. That law is really badly written.

Pelosi's scenario involves something very different. One could declare a national emergency in regards to "gun violence," but what would that really entail? Perhaps diverting more money to existing programs and relevant agencies for enforcement.

If it were to go further, it would be blatant legislation by executive fiat, and there's no way SCOTUS could possibly ignore that.

I have some very real concerns about the excesses of executive power, and the current situation may end up being a test of its limits.

 

[zukiphile]

Pelosi's scenario involves something very different. One could declare a national emergency in regards to "gun violence," but what would that really entail? Perhaps diverting more money to existing programs and relevant agencies for enforcement.

If it were to go further, it would be blatant legislation by executive fiat, and there's no way SCOTUS could possibly ignore that.

It's harder to argue that the exec is usurping a legislative function where the legislature has been off loading authority onto the exec with emergency and regulatory powers for almost a century. The National Emergencies Act seems much like the War Powers Act; each is legislation that works around constitutional divisions of power. If one's understanding of constitutional government involved anything more than watching Schoolhouse Rock, he knows that legislation can't amend the Constitution. Yet, if the exec and congress find the accommodation agreeable, who complains?

There is no balance in "checks and balances" where the legislators have decided over time that they don't want parts of their work. People decry gridlock, but overlook its constitutional role.

 

[Tom Servo]

It's harder to argue that the exec is usurping a legislative function where the legislature has been off loading authority onto the exec with emergency and regulatory powers for almost a century.

Congress is, by the law they passed, supposed to review existing states of emergency every six months. To my knowledge, that has *never* happened. You're right that the NEA is a matter of kicking the can down the curb.

However, there's a big difference between reallocating funds and changing law.

 

[Glenn E. Meyer]

While not a legal scholar, the key question is whether declaring an emergency and demanding the confiscation of a dangerous item is within the bounds of the President's authority. Trump may be moving money around but FDR imprisoned law abiding citizens on the basis of race and the Supreme Court agreed at first. That's quite a step over moving funds around.

The Supreme Court might have to decide if that sort of action was legit as they would have to decide if a new Federal AWB is legit. Unless Kavanaugh's selection causes a change in the dynamic, how would they rule on either?

There are rumbles that Thomas might retire. The new AG, Barr, has waffled on weapons type bans if reports of past and present opinions are correct.

As an aside, could Trump state that such state bans are subejct a national emergency as they weaken the role of citizens in defending self and the country? Thus, he cuts off all Federal law enforcement funding and cooperation to states that have or enact such bans? Just a pipe dream.

The new administration in New Mexico wants to pass an UBC law among others - may an AWB, and some gun activists are proposing a push for sheriffs not to comply and for informing the public of jury nullification. While is nice for local, rural sheriffs not to comply, the existence of such laws will put heirs in a hard place for noncompliance depending on grandfathering.

We've wandered a bit into executive orders but mostly relevant. Let's not go to far off topic.

 

[zukiphile]

However, there's a big difference between reallocating funds and changing law.

Indeed, though note that in the last decade there was effectively a change in tax and immigration law, both undertaken where Congress had already expressed itself to the contrary. Neither was as dramatic as effective repeal of a part of the BOR.

While not a legal scholar, the key question is whether declaring an emergency and demanding the confiscation of a dangerous item is within the bounds of the President's authority. Trump may be moving money around but FDR imprisoned law abiding citizens on the basis of race and the Supreme Court agreed at first. That's quite a step over moving funds around.

FDR also locked up law abiding german americans for their political views and Lincoln didn't do habeas corpus any favors either.

The Supreme Court might have to decide if that sort of action was legit as they would have to decide if a new Federal AWB is legit. Unless Kavanaugh's selection causes a change in the dynamic, how would they rule on either?

That might turn in part on the composition of the court when the issue comes before it.

There are rumbles that Thomas might retire. The new AG, Barr, has waffled on weapons type bans if reports of past and present opinions are correct.

Thomas will certainly retire or die, so an exec and Senate that will treat the matter appropriately is important.

I know little about William Barr aside from his recent testimony. To characterize his testimony as waffling is wrong. He has been a proponent of the individual right view of the 2d Am. and articulated a balancing test that should be rejected. His testimony on the subject was less focused and informed than Kavanaugh's.

As an aside, could Trump state that such state bans are subejct a national emergency as they weaken the role of citizens in defending self and the country? Thus, he cuts off all Federal law enforcement funding and cooperation to states that have or enact such bans? Just a pipe dream.

The new administration in New Mexico wants to pass an UBC law among others - may an AWB, and some gun activists are proposing a push for sheriffs not to comply and for informing the public of jury nullification. While is nice for local, rural sheriffs not to comply, the existence of such laws will put heirs in a hard place for noncompliance depending on grandfathering.

We've wandered a bit into executive orders but mostly relevant. Let's not go to far off topic.

DJT could state many things, but really effective federal bullying by financial means, like withholding highway funds unless a 55mph speed limit is adopted, takes congressional cooperation because they ultimately control the money.

If sheriff's tolerance and jury nullification are the rule in an area, the heirs aren't really in a hard place. As with the 18th Am. and the 55mph speed limit, where non-compliance is the ordinary condition and the law is viewed as foolish, non-compliance becomes public, accepted and normal and prosecution itself is seen as an injustice.

A half century ago, William F. Buckley argued for legalization of marijuana and in the 1980s cited a lad being given a long prison sentence for possession as a reason for legalization. A week ago, I was called by a NY client whose daughter had been stopped for speeding in Ohio and was ticketed for possession because she hadn't thought to hide it from the PO.

I am not an advocate for legalization, but it illlustrates the limited utility of a legal prohibition poorly matched to ordinary attitudes.

 

[Glenn E. Meyer]

The Eighth Amendment states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Two of those commands — regarding bail and cruel and unusual punishments — have been deemed to apply to state and local governments.

This is from: https://www.washingtonpost.com/poli...51b7ff322e9_story.html?utm_term=.10260f48f8a3

where a seizure of a Land Rover was seen as extreme for a small amount of drugs. I wonder if anyone has attempted to void the harsh D Felony penalties for NY SAFE act violations for having a higher cap magazine. After all, such are legal in many states and the penalties are the same as for much more heinous offenses.

Of course, SCOTUS would have to take the case. This might be different from a 2nd Amend. based case to void the law.

 

[rickyrick]

In my simple mind, I perceive Speaker Pelosi’s statement as a threat against something in the bill of rights by emergency action of some unknown future president in retaliation to an emergency action by the current President. Besides the unknown identity of this future presidency, the conditions and time of the emergency action is also unknown; However, the Speaker did state which political party this unknown future president will be a member of.
That’s a head scratcher to me, but then, I’m a simple person.

 

[5whiskey]

In my simple mind, I perceive Speaker Pelosi’s statement as a threat against something in the bill of rights by emergency action of some unknown future president in retaliation to an emergency action by the current President. Besides the unknown identity of this future presidency, the conditions and time of the emergency action is also unknown; However, the Speaker did state which political party this unknown future president will be a member of.
That’s a head scratcher to me, but then, I’m a simple person.

It is a head scratcher indeed. At face value it sounded like a nice comeback or quip to someone who can't be bothered to understand the difference between specifically enumerated constitutional right, and moving some money around in the federal budget to complete a project that was made law in 2006. Tis not exactly an "apples apples" comparison.

None the less...

Or via a 'national emergency'...if that toothpaste is outta the tube(precedent)...

I don't disagree with this. I don't think it's smart to water down what constitutes a "national emergency" for the purpose of granting unlimited executive authority. But that's not necessarily a gun debate, so it's neither here nor there.

 

[5whiskey]

If sheriff's tolerance and jury nullification are the rule in an area, the heirs aren't really in a hard place. As with the 18th Am. and the 55mph speed limit, where non-compliance is the ordinary condition and the law is viewed as foolish, non-compliance becomes public, accepted and normal and prosecution itself is seen as an injustice.

A half century ago, William F. Buckley argued for legalization of marijuana and in the 1980s cited a lad being given a long prison sentence for possession as a reason for legalization. A week ago, I was called by a NY client whose daughter had been stopped for speeding in Ohio and was ticketed for possession because she hadn't thought to hide it from the PO.

I am not an advocate for legalization, but it illlustrates the limited utility of a legal prohibition poorly matched to ordinary attitudes.

On another note, Zukaphile has made a valid argument for potential situations given by Glenn in the OP. Yes, I don't want to leave my kids in a potential conundrum where they have to turn in or destroy weapons for which mere possession of is a felony. I am also hesitant to embrace the basic attitude that "it's a bullcrap law and no one abides by it, and prosecution for it is rare, so let's just all ignore it as it will soon be legal anyway." But to be completely fair, that's exactly what happened with the 18th amendment, national speed limit laws, marijuana in many states, the sedition act, sodomy laws, laws that make homosexual sex a crime, Jim Crow Laws, laws prohibiting birth control, and the list goes on. Each of these laws were (or are currently) bent or largely ignored by the masses, making even limited enforcement problematic. There is limited (almost no) case law on Desuetude (the concept of a long unenforced law becoming void on it's face) in the United States outside of West Virginia courts, however it is semi-common practice for said laws to be repealed or continued to be ignored.

Which, all of this is good and well when we're discussing misdemeanors with a nominal fine (which most of my above referenced samples are). It's an entirely different matter when it is a felony that forever removes you from enjoying certain constitutional rights and is punishable by prison. While many may roll the dice, many will also not take the chance. I don't see felony firearm regulations quite in the same light as the national speed limit act because of this. Still, the point remains that enough resistance to an unjust law can and occasionally does create enough support to repeal the law over time, at least in some instances.

 

[davidsog]

Of course there will be push back and violence if an out-right gun ban is put in place.

There will be people that will not sit back and quietly allow the fundamental right to protect themselves be taken away.

It will only take one formally law-abiding citizen that dies fighting the police to plant the seed of rebellion.

Look at what happened at Ruby Ridge when the BATF attempted to serve a warrant for failure to appear over an illegal shotgun charge. The echoes of that action still resonate and a universal gun ban would touch off an insurgency.

May not happen immediately but it would happen.

 

[Tom Servo]

Look at what happened at Ruby Ridge when the BATF attempted to serve a warrant for failure to appear over an illegal shotgun charge.

Honestly? The vast majority of gun owners I knew at the time shrugged, said something about the "whacko cult," and went on with their lives.

That's the problem. We're not the people we were in the 18th century. If the worst were to happen and someone were to resist with force of arms, the media would cast them as a lone-wolf extremist terrorist, a public lacking in any skepticism would accept the narrative, and it would only be justification for more restrictions on the RKBA.

Even if we were made of the same stuff as our forefathers, it's not even remotely time for such ideas. Strained as it may sometimes be, our system is still in place, and we still have legal recourse.

 

[rickyrick]

On a small scale, the National Guard confiscated guns in the Katrina aftermath and nothing really happened. Many places have passed some significant gun restrictions and haven’t seen much resistance. I myself think that a national ban would go off without too much resistance, monitoring and maintaining a national gun ban wouldn’t work because of the expense probably, not because of resistance. Good citizens typically comply with laws, even if they disagree.

 

[zukiphile]

Even if we were made of the same stuff as our forefathers, it's not even remotely time for such ideas. Strained as it may sometimes be, our system is still in place, and we still have legal recourse.

That's almost always true, but real due process is a part of the legitimacy that places armed action beyond the pale. Yes, people generally have great disdain for Randy Weaver's religion and David Koresh's outfit. The condemnation of Cliven Bundy's crowd was so strong here that the idea of any federal fault in the bird sanctuary episode was angrily dismissed as looney, yet the number of federal agents involved in the standoff and amongst the Bundy group led a jury to dismiss the charges. The longstanding sentiment of the sagebrush rebellion is that there is an authority of federal regulators from whom there is no practical appeal. In Sackett v. EPA, the federal government argued that its compliance orders aren't subject to judicial review.

That over-reach undermines the legitimacy and contributes to a sense of outrage even where the victims aren't like us. Could that lead to a large population, even including those who don't own guns, of people who think federal firearms enforcement lacks moral force and is rightly ignored? I don't see it under current restrictions in most places, but greater restriction coupled with enforcement seen as wrong or unfair could change that.

 

[Glenn E. Meyer]

I have deleted discussion of 'armed rebellion' over new laws. They are not relevant to the OP. As I said, we have wandered a bit.

Ignoring the law and keeping banned items is an action one might consider when being left Grandpa's banned items. Postulating overthrowing the government is not in the domain of responses that I wanted to discuss as practical solutions to the problem an heir might have.

 

[davidsog]

Postulating overthrowing the government is not in the domain of responses that I wanted to discuss as practical solutions to the problem an heir might have.

Ok

Honestly? The vast majority of gun owners I knew at the time shrugged, said something about the "whacko cult," and went on with their lives.

Sure..no consequences at all.

Reading lots of posts about upcoming or proposed bans on guns and mags in various states, inevitably someone proclaims that they will not turn theirs in or most folks won't.

As I've said before, even if you keep them, they are now useless for any lawful activity and except for being hidden, so what.

OK, gun loving Grandpa kicks off or goes to home as he is now not able to take care of himself. What do the kids do with the forbidden items? Unless they are hard core, they probably don't want a hidden stash in their house?

They can't sell them legally. Yeah, they could drive them to another state and if stopped by the law - oops.

If they call the local law to come get the forbidden times, does a surviving Grandpa get hit with the legal penalties of fines and time?

If Grandma is in the house and knew of the stash - is she a felon? Now maybe your Andy of Mayberry type will handle it on the sly but I wouldn't trust all law officers to do such.

I wouldn't want to put my kids in such a bind.

Not sure what you are expecting or hoping to hear will be the outcome. Hope you get your answer, LOL.

 

[riffraff]

On a small scale, the National Guard confiscated guns in the Katrina aftermath and nothing really happened. Many places have passed some significant gun restrictions and haven’t seen much resistance. I myself think that a national ban would go off without too much resistance, monitoring and maintaining a national gun ban wouldn’t work because of the expense probably, not because of resistance. Good citizens typically comply with laws, even if they disagree.

NH actually has a law on the books making confiscation due to such an emergency illegal, at least by state law, which was put in place on the grounds of what happened there.

 

[rickyrick]

riffraff,
Texas passed a similar law afterwards as well I think.