« Another "only I am professional enough to use this gun" moment | Main | NJ law: young mother facing 3 years' hard time »
Case on restoration of rights
US v. Indelicato, 97 F.3d 627 (1st Cr. 1996). The Gun Control Act technically doesn't forbid felons to possess guns; it forbids those convicted of a crime punishable by more than a year's imprisonment, or of one expressly denominated a misdemeanor, and not punishable by more than two years' imprisonment, to do so. It also provides that a conviction does not count if the person has received a restoration of civil rights. In most States, a crime punishable by more than a year's imprisonment is a felony, so the difference is zero.
At issue in Indelicato was defendant's status when he had been convicted of a Massachusetts misdemeanor that was punishable by up to 2.5 years' imprisonment. Since that's more than two years, it brought him with the Federal ban. But since it was a misdemeanor, which loses no civil rights, there was no way for him to have obtained a restoration of civil rights.
The court decided to treat the matter as if Indelicato had had his rights restored, in the sense that he never lost them in the first place. It acknowledges that several other rulings have gone the other way: since the defendant never lost his rights, he cannot get them "restored" and is forever barred. I think it's a good approach (why would Congress have meant a misdemeanant to have a lifetime bar, when a felon would not), although it's not in accord with the language of the statute. This is one of the cases where statutory "interpretation" actually involves, not figuring out the legislative intent, but figuring out what would have been the legislative intent if the legislature had foreseen an obscure situation, which it didn't know existed.
3 Comments | Leave a comment
Why would Congress have passed any laws about things, like firearms, at all? From thousands of pages of study, I have found that the Framers granted NO AUTHORITY over things, NO AUTHORITY over vessels of transport. The government has usurped powers to claim authority over vehicles of transport and things that have been "in interstate commerce" or "have an effect/affect on interstate transport". The courts have conceded on these points BUT that does not make any of the laws Constitutional. The court actions just prove that the courts are on the side of the government in the majority of cases, especially when the government is unconstitutionally expanding its authority.
About vehicles of transport, during the convention it was offered up that the power to regulate stages on the post roads be given to Congress. The idea was killed and no power over vehicles was granted. Shortly thereafter, the federalists in government simply expanded the power by stealing it. It took many more decades before the feds decided they could steal the power to regulate things out of existence. Again the courts stepped in and decided incorrectly that exports from a state only applied to things going to foreign nations eventhough the language and the discussion prove the prohibitions mean on ANYTHING SENT ANYWHERE out of a state. it should be known that the individual states were and are considered as separate nations by the Framers and the Constitution. Otherwise, why would the Framers remove all references in the Constitution to the US as a nation and the federal government as national? Why would the Constitution refer to the US of A as "them" or "their" if the US was a mere nation instead of a Union representing 50 nations?
Why are folks ignorant? Because the Pledge has been used to brain-wash folks.
Congress had no authority to pass the NFA34 or the GCA68. Commerce is an act not the things in the act. It is also very interesting to note that many who fought against adding the Bill of Rights SPECIFICALLY stated that it would be dangerous to do so. They said Congress had no authority to act in those areas and the inclusion of the BoR would cause folks to believe that the enumeration was prohibiting things the feds could do, rather than just making an absolute statement about the Rights, endowed by the Creator not by government (privilege not right), that people have. Look where we are.
There are too many cases where the courts have added words and authorities to the Constitution that were discussed and killed in the Convention. Wherever the courts pull this crap from leaves their hands smelling like... not like roses. One can read through numerous federal cases and find over and over that the courts have expanded or allowed Congress to expand the exercised powers far beyond what was granted. The lack of courage to require adherence to the Constitution has brought us to the verge of the destruction of the US as a viable entity.
My question is, where does the power to strip a citizen of rights come from? Governments have powers, not rights. People have rights, and not powers.
NB: It doesn't matter what CA1 did here, a decade later it was wiped out by Logan v. United States, 552 U.S. 23 (U.S. 2007).