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Post subject: Gun Control Legislation Introduced by Republicans (SB 97)
Post Posted: Sun Mar 08, 2015 12:26 pm
Republican Senators Huges, LaRose, Eklund and Patton have introduced SB 97. That bill would define a "violent career criminal" as someone who commits two or more of the following crimes within 8 years (excluding time spend incarcerated or related offenses) of each other:

1. Aggravated Murder
2. Murder
3. Voluntary Manslaughter
4. Involuntary Manslaughter
5. Felonies Assault, i.e., cause serious physical harm
6. Aggravated Assault, i.e., cause serious physical harm after serious provocation by victim
7. Kidnapping
8. Abduction
9. Aggravated Arson
10. Making a Terroristic Threat
11. Aggravated Robbery
12. Robbery
13. Aggravated Burglary
14. Burglary when someone other than a codefendant is or is likely to be present
15. Rape
16. Sexual Battery
17. Unlawful Sexual Conduct with a Minor
18. Gross Sexual Imposition
19. Terrorism
20. Felony Domestic Violence
21. Conspiracy or attempt to commit any of the above if the offense is a first or second degree felony

Then SB 97 provides: (1) for a 50% increase in the enhanced mandatory prison terms for those who are defined as a "violent career criminal" if the person "had a firearm on or about the person's person or under the person's control while committing a violent felony offense," and (2) prohibiting judges from restoring firearms rights to those defined as a "violent career criminal."

(1) why should a person who broke into his neighbor's attached garage to steal a wrench while he was in control of a firearm (i.e., had a hunting rifle locked in his home) serve many more years in prison than someone who uses his fists to beat the daylights out of an old lady or someone who stabs a child repeatedly with a butcher knife? SB 97 doubles down on the policy of punishing firearms owners much more harshly for breaking the law. This illustrates how much distain the legislators have for firearm owners. Can we just have criminal penalties based upon the criminal conduct and not upon whether someone is exercising enumerated constitutional rights while committing the crime?

(2) Is there really a problem with people who have been relieved firearms disability by Ohio courts committing violent crimes so as to justify a new law prohibiting judges from restoring firearms rights to those newly defined as a "violent career criminal?" I have not heard of this happening, and if it has happened, wouldn't the anti-freedom organizations and their accomplices in the media be talking about it every day? Who will these republicans bring into the committee hearing to testify in support of this; the old crows that are frightened by farmer Johnson's scare crow?

Moreover, the Sixth Circuit just ruled that categorical firearms prohibitions that offers no path to restoration is unconstitutional. See Tyler v. Hillsdale Cnty. Sheriff's Dept., (6th Cir 12-18-2014), No. 13-1876, http://www.ca6.uscourts.gov/opinions.pd ... 6p-06.pdf; cf., United States v. Barton, 633 F.3d 168 (3d Cir. 2011)(While the federal firearms prohibition for former felons is presumptively constitutional, imposition upon a "law abiding" former felon may be unconstitutional depending upon the circumstances); accord Binderup v. Holder, 5:13-cv-06750 (Dist.Ct., E.D. Pennsylvania, 2014). And the lawyer for Bindrup is none other than Alan Gura who successfully argued District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008) and McDonald v. City of Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). SB 97 is likely to draw an immediate legal challenge. It would actually be fun to watch our republican legislators and our republican attorney general use all of Bloomberg's arguments to defend their expansion of gun control. Such a display may allow us to primary the RINO's.

"Laws that forbid the carrying of arms**disarm only those who [don't] commit crimes. Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than prevent homicides." - Thomas Jefferson.
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Post subject: Re: Gun Control Legislation Introduced by Republicans (SB 97
Post Posted: Sun Mar 08, 2015 4:00 pm
Community control sanctions got to go. Serve the sentence imposed, that it. Dump all these man made felonies.

Common law felonies:
Murder, Rape, Manslaughter, Robbery, Sodomy, Larceny, Arson, Mayhem, Burglary.

2903.21 Aggravated menacing is the new charge used by cops since Disorderly Conduct or Inducing Panic has been taken off the table.

Liberty, thanks for posting.
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Post subject: Re: Gun Control Legislation Introduced by Republicans (SB 97
Post Posted: Sun Mar 08, 2015 9:19 pm
color of law wrote:
Community control sanctions got to go. Serve the sentence imposed, that it. Dump all these man made felonies.

Common law felonies:
Murder, Rape, Manslaughter, Robbery, Sodomy, Larceny, Arson, Mayhem, Burglary.


A comment, and a question.

One item in your list seems to fall into the list of "man made felonies", in my opinion.

What, exactly, constitutes "mayhem"? Yes, I could look it up myself but I'm being lazy at the moment.

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Post subject: Re: Gun Control Legislation Introduced by Republicans (SB 97
Post Posted: Sun Mar 08, 2015 10:34 pm
The common law crime of mayhem is defined as an act of maliciously disabling or disfiguring the victim.

All the common law crimes have been made statutory crimes.
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Post subject: Re: Gun Control Legislation Introduced by Republicans (SB 97
Post Posted: Mon Mar 09, 2015 8:44 am
color of law wrote:
The common law crime of mayhem is defined as an act of maliciously disabling or disfiguring the victim.


So something like Aggravated Assault then?

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Post subject: Re: Gun Control Legislation Introduced by Republicans (SB 97
Post Posted: Mon Mar 09, 2015 9:45 am
I think COL's point is that when the framework for our republic was established felonies were understood as malum in se crimes or crimes that are evil in and of themselves. Typically people who committed those type of crimes were not released back into society. That is part of the reason why the constitution does not allow for depriving any free person of arms. We release these people back into society now so the anti freedom politicians have an excuse to disarm us. Prohibiting released felons from possessing firearms cannot prevent them from obtaining firearms and committing evil acts with them, but disarming everyone would. It would not stop them from committing evil acts, but it would stop them from using firearms to commit evil acts.

Additionally, state governments and the federal government have been progressively moving what use to be misdemeanors into the felony category thereby widening the net of those prohibited from possessing firearms. If we could get back to defining felonies as serious malum in se crimes and misdemeanors as minor malum in se crimes and malum prohibitum crimes (i.e., acts that are wrong or illegal just because they are prohibited) the firearms prohibitions may be more appropriately used, still illegal, but more appropriately used.

Firearms prohibitions are not malum in se crimes; they are malum prohibitum crimes. They are not only a violation of the 2nd Amendment, they are a violation of the Constitution's innocent until proven guilty policy because they assume that the person possessing a firearm is going to do something bad.

"Laws that forbid the carrying of arms**disarm only those who [don't] commit crimes. Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than prevent homicides." - Thomas Jefferson.
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Post subject: Re: Gun Control Legislation Introduced by Republicans (SB 97
Post Posted: Mon Mar 09, 2015 10:01 am
color of law wrote:
Community control sanctions got to go. Serve the sentence imposed, that it. Dump all these man made felonies.

Under Ohio law community control sanctions are community-based alternative sentences such as probation, halfway house, community-based correctional facility, day reporting, intensive supervision probation, etc... Did yo mean "collateral consequences?" Those are weapons prohibitions, denial of the right to vote or to be licensed or bonded or have certain types of jobs.

I am not trying to be picky. Ohio's terms are sometimes confusing and are not statutorily defined how they are most often used. Another example is the term "aggravated assault." In other states it means assault with aggravating circumstances. The Ohio Revised Code defines that as "felonious assault." In Ohio, "aggravated assault" is a felonious assault upon serious provocation by the victim, i.e., mitigating circumstances. The term "aggravated" is used elsewhere in Ohio's criminal statutes to mean aggravating circumstances, e.g., Agg Murder, Agg Burglary, Agg Menacing. Confusing to say the least. You would not know unless you deal with it all the time.

"Laws that forbid the carrying of arms**disarm only those who [don't] commit crimes. Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than prevent homicides." - Thomas Jefferson.
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Post subject: Re: Gun Control Legislation Introduced by Republicans (SB 97
Post Posted: Mon Mar 09, 2015 3:22 pm
Liberty wrote:
I think COL's point is that when the framework for our republic was established felonies were understood as malum in se crimes or crimes that are evil in and of themselves. Typically people who committed those type of crimes were not released back into society. That is part of the reason why the constitution does not allow for depriving any free person of arms. We release these people back into society now so the anti freedom politicians have an excuse to disarm us. Prohibiting released felons from possessing firearms cannot prevent them from obtaining firearms and committing evil acts with them, but disarming everyone would. It would not stop them from committing evil acts, but it would stop them from using firearms to commit evil acts.

Additionally, state governments and the federal government have been progressively moving what use to be misdemeanors into the felony category thereby widening the net of those prohibited from possessing firearms. If we could get back to defining felonies as serious malum in se crimes and misdemeanors as minor malum in se crimes and malum prohibitum crimes (i.e., acts that are wrong or illegal just because they are prohibited) the firearms prohibitions may be more appropriately used, still illegal, but more appropriately used.

Firearms prohibitions are not malum in se crimes; they are malum prohibitum crimes. They are not only a violation of the 2nd Amendment, they are a violation of the Constitution's innocent until proven guilty policy because they assume that the person possessing a firearm is going to do something bad.

I know some attorneys that don't know these basic legal principles, let alone armchair lawyers.

I'm amazed at the number of people that think the statutes trump the constitution.
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Post subject: Re: Gun Control Legislation Introduced by Republicans (SB 97
Post Posted: Mon Mar 09, 2015 3:28 pm
Liberty wrote:
color of law wrote:
Community control sanctions got to go. Serve the sentence imposed, that it. Dump all these man made felonies.

Under Ohio law community control sanctions are community-based alternative sentences such as probation, halfway house, community-based correctional facility, day reporting, intensive supervision probation, etc... Did yo mean "collateral consequences?" Those are weapons prohibitions, denial of the right to vote or to be licensed or bonded or have certain types of jobs.

I am not trying to be picky. Ohio's terms are sometimes confusing and are not statutorily defined how they are most often used. Another example is the term "aggravated assault." In other states it means assault with aggravating circumstances. The Ohio Revised Code defines that as "felonious assault." In Ohio, "aggravated assault" is a felonious assault upon serious provocation by the victim, i.e., mitigating circumstances. The term "aggravated" is used elsewhere in Ohio's criminal statutes to mean aggravating circumstances, e.g., Agg Murder, Agg Burglary, Agg Menacing. Confusing to say the least. You would not know unless you deal with it all the time.

And that is just the tip of the iceberg.
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Post subject: Re: Gun Control Legislation Introduced by Republicans (SB 97
Post Posted: Wed Mar 11, 2015 2:21 am
Liberty wrote:
Moreover, the Sixth Circuit just ruled that categorical firearms prohibitions that offers no path to restoration is unconstitutional. See Tyler v. Hillsdale Cnty. Sheriff's Dept., (6th Cir 12-18-2014), No. 13-1876, http://www.ca6.uscourts.gov/opinions.pd ... 96p-06.pdf.

No, it did not. It limited its holding to firearm disabilities based on mental health. And in doing so, it very clearly stated that felony convictions were the most presumptively valid of all the firearm disabilities.

Do I really need to quote from the opinion to establish that?

Liberty wrote:
... a person who broke into his neighbor's attached garage to steal a wrench while he was in control of a firearm (i.e., had a hunting rifle locked in his home) ...

Please designate the identity of anyone who has ever been convicted of a firearm specification for having a firearm locked away in his own home while committing a burglary in another home. Any county in Ohio will be acceptable.
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Post subject: Re: Gun Control Legislation Introduced by Republicans (SB 97
Post Posted: Wed Mar 11, 2015 11:33 am
Werz wrote:
Liberty wrote:
Moreover, the Sixth Circuit just ruled that categorical firearms prohibitions that offers no path to restoration is unconstitutional. See Tyler v. Hillsdale Cnty. Sheriff's Dept., (6th Cir 12-18-2014), No. 13-1876, http://www.ca6.uscourts.gov/opinions.pd ... 96p-06.pdf.

No, it did not. It limited its holding to firearm disabilities based on mental health. And in doing so, it very clearly stated that felony convictions were the most presumptively valid of all the firearm disabilities.

Do I really need to quote from the opinion to establish that?

Yes you do because I don't see it. Even if you were correct, the Court's statements would be obiter dictum and not binding.

Yes, the court's ruling was about firearms disabilities based upon mental health, and it did not specifically rule upon firearms disabilities based upon criminal convictions, but the court established that categorical firearms prohibitions must meet strict scrutiny, after acknowledging that as applied constitutional challenges to categorical conviction-based prohibitions may be valid, via its citing of Binderup v. Holder , 13–CV–06750, 2014 WL 4764424 (E.D.Pa. Sept. 25, 2014).

Specifically the Sixth Circuit held:

Quote:
In choosing strict scrutiny, we join a significant, increasingly emergent though, as yet, minority view that concludes that as between intermediate scrutiny and strict scrutiny-the choice that Greeno requires—the latter is more appropriate for assessing a challenge to an enumerated constitutional right, especially in light of Heller's rejection of judicial interest-balancing. See Chovan, 735 F.3d at 1145–46, 1149–52 (Bea, J., concurring) (“Categorical curtailment of constitutional rights based on an individual's status requires more rigorous analysis than intermediate scrutiny.”); NRA v. ATF (NRA II ), 714 F.3d 334, 336 (5th Cir.2013) (Jones, J., dissental,15 joined by Jolly, Smith, Clement, Owen, & Elrod, JJ.) (“[T]he level of scrutiny required [for the case] must be higher than [intermediate scrutiny].”); Heller II, 670 F.3d at 1284 (Kavanaugh, J., dissenting) (“Even if it were appropriate to apply one of the levels of scrutiny after Heller, surely it would be strict scrutiny rather than ․ intermediate scrutiny․”).


This is consistent with both Heller and McDonald that determined second amendment rights to be "fundamental." And fundamental rights have consistently been scrutinized strictly. See e.g., Korematsu v. United States (1944), 323 U.S. 214; Sherbert v. Verner (1963), 374 U.S. 398; Wisconsin v. Yoder (1972), 406 U.S. 205; Employment Division v. Smith (1990), 494 U.S. 872; City of Boerne v. Flores (1997), 521 U.S. 507; Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal (2006), 546 U.S. 418.

"Laws that forbid the carrying of arms**disarm only those who [don't] commit crimes. Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than prevent homicides." - Thomas Jefferson.
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Post subject: Re: Gun Control Legislation Introduced by Republicans (SB 97
Post Posted: Wed Mar 11, 2015 11:55 am
Werz wrote:
Liberty wrote:
... a person who broke into his neighbor's attached garage to steal a wrench while he was in control of a firearm (i.e., had a hunting rifle locked in his home) ...

Please designate the identity of anyone who has ever been convicted of a firearm specification for having a firearm locked away in his own home while committing a burglary in another home. Any county in Ohio will be acceptable.

Now, how can I do that when it is not yet law? It has just been proposed, which is why I am discussing it here. Current law for imposing a firearms specification requires that "that the offender had a firearm on or about the offender's person or under the offender's control while committing the offense and displayed the firearm, brandished the firearm, indicated that the offender possessed the firearm, or used it to facilitate the offense." See R.C. § 2941.145. The proposal in SB 97 only requires that "a firearm on or about the person's person or under the person's control while committing a violent felony offense." See lines 93-95 of SB 97. And there is a plethora of cases, mostly about violations of R.C. § 2923.13, that have established having a weapon "under a person's control" includes in the person's home or vehicle even when the person is not present.

"Laws that forbid the carrying of arms**disarm only those who [don't] commit crimes. Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than prevent homicides." - Thomas Jefferson.
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Post subject: Re: Gun Control Legislation Introduced by Republicans (SB 97
Post Posted: Wed Mar 11, 2015 3:09 pm
State v. White, Slip Opinion No. 2015-Ohio-492.
Quote:
Criminal Law—R.C. 2941.145 firearm specification is not applicable to on-duty police officer acting within course and scope of law-enforcement duties— Jury instructions—Police officer’s justification for use of deadly force.


This is why the people are so discussed with the legislators and courts.
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Post subject: Re: Gun Control Legislation Introduced by Republicans (SB 97
Post Posted: Wed Mar 11, 2015 10:18 pm
Liberty wrote:
Current law for imposing a firearms specification requires that "that the offender had a firearm on or about the offender's person or under the offender's control while committing the offense and displayed the firearm, brandished the firearm, indicated that the offender possessed the firearm, or used it to facilitate the offense." See R.C. § 2941.145. The proposal in SB 97 only requires that "a firearm on or about the person's person or under the person's control while committing a violent felony offense." See lines 93-95 of SB 97. And there is a plethora of cases, mostly about violations of R.C. § 2923.13, that have established having a weapon "under a person's control" includes in the person's home or vehicle even when the person is not present.

The Ohio legislature does this all the time, i.e., not making sure new language is consistent with other statutory provisions. Sometimes it takes years to fix those inconsistencies, and sometimes people get caught up in technicalities that result in grave injustices.

In SB 97, for example, there are two such inconsistencies that I saw on my first read. One is the firearms specification issue. I don't know if they meant to broaden the definition or if it was laziness or incompetence.

Another inconsistency in SB 97 is how its newly proposed statute, i.e., R.C. § 2923.131 defines violent offenses that is different from the definition provided in R.C. § 2901.01(A)(9) while leaving it in place--so there would be two separate lists of what constitutes a violent offense. It looks like whoever drafted SB 97 did not know of the existence of R.C. § 2901.01(A)(9). SB 97's definition defines the following offenses as violent offenses that are not defined as violent offenses in R.C. § 2901.01(A)(9):

• R.C. § 2909.03 Making a Terroristic Threat
• R.C. § 2907.04 Unlawful Sexual Conduct with a Minor (i.e., statutory rape or boyfriend is 18 and girlfriend is 15)
• Conspiracy or attempt to commit any of the above if the offense is a first or second degree felony

SB 97 does not define the following offenses as violent offenses, but they are defined as violent offenses in R.C. § 2901.01(A)(9):

• R.C. § 2903.13 Assault
• R.C. § 2903.15 Permitting child abuse
• R.C. § 2903.21 Aggravated menacing
• R.C. § 2903.211 Menacing by stalking
• R.C. § 2903.22 Menacing
• R.C. § 2905.11 Extortion
• R.C. § 2905.32 Trafficking in persons
• R.C. § 2909.03 Arson
• R.C. § 2917.01 Inciting to violence
• R.C. § 2917.02 Aggravated riot
• R.C. § 2917.03 Riot
• R.C. § 2919.25 Misdemeanor Domestic Violence
• R.C. § 2919.22 Endangering Children
• R.C. § 2921.03 Intimidation
• R.C. § 2921.04 Intimidation of attorney, victim or witness in criminal case or delinquent child action proceeding
• R.C. § 2921.34 Escape
• R.C. § 2923.161 Improperly discharging firearm at or into a habitation, in a school safety zone or with intent to cause harm or panic to persons in a school building or at a school function
• Felonious sexual penetration in violation of former section 2907.12

And lastly, SB 97 lists only subsections (1) & (2) of R.C. § 2911.12, Burglary, i.e., trespass in an inhabited dwelling when (1) someone is present or when (2) someone is likely to be present. R.C. § 2901.01(A)(9) lists subsections (1), (2) & (3) of R.C. § 2911.12, which includes subsection (3) when no one is or likely to be present. This one actually makes sense because violations of subsection (3) encompass so many situations and it is very similar to breaking and entering, which has never been considered a violent crime. But SB 97 leaves it defined as an offense of violence in R.C. § 2901.01(A)(9).

"Laws that forbid the carrying of arms**disarm only those who [don't] commit crimes. Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than prevent homicides." - Thomas Jefferson.
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Post subject: Re: Gun Control Legislation Introduced by Republicans (SB 97
Post Posted: Wed Mar 11, 2015 10:36 pm
color of law wrote:
State v. White, Slip Opinion No. 2015-Ohio-492.
Quote:
Criminal Law—R.C. 2941.145 firearm specification is not applicable to on-duty police officer acting within course and scope of law-enforcement duties— Jury instructions—Police officer’s justification for use of deadly force.


This is why the people are so discussed with the legislators and courts.

I just read the summary. The slip opinion would not open. But that is really F'ed up! Since police officers are trained and authorized to use firearms, specifications don't apply to them even when they are found guilty of felonious assault for shooting unarmed motorcyclists in the back?

Firearm specifications only apply to us peasants, just like parking lot carry.

"Laws that forbid the carrying of arms**disarm only those who [don't] commit crimes. Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than prevent homicides." - Thomas Jefferson.
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