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Judge questions Ashcroft's gun stand
Josey1
Member Posts: 9,598 ✭✭
Judge questions Ashcroft's gun stand
Patel says alleged S.F. gang members can't claim right to bear arms
Bob Egelko, Chronicle Staff Writer Thursday, July 4, 2002
http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2002/07/04/BA187238.DTL
Seizing on the Bush administration's new position that the Constitution protects individual gun ownership, defense lawyers in a San Francisco gang prosecution sought dismissal of all weapons charges, including machine gun possession.
A federal judge's response was to wonder what they'd been drinking.
"The motion . . . is one of those clever pieces of mental gymnastics engaged in late in the evening, perhaps after a nightcap," Chief U.S. District Judge Marilyn Hall Patel said in a terse three-page order Tuesday refusing to dismiss charges against 11 alleged members of the Big Block gang in Bayview- Hunters Point.
She also appeared to question the recent change in the government's position announced by Attorney General John Ashcroft, saying the dismissal motion would be misguided "even if (Ashcroft's) statement . . . were a correct statement of Second Amendment law."
The 11 defendants were among 16 arrested in August and September in what police described as an attempt to break up a bloody two-year war over drug turf. Most of the defendants are being held without bail, including Douglas "Boobie" Stepney, described by an FBI agent as the ringleader. A defense lawyer said Stepney was simply a businessman who ran the Big Block record label.
The legal dispute involved the Constitution's Second Amendment, which guarantees the right to bear arms. Until recently, the federal government and every appellate court that considered its meaning said it referred only to the arming of a "well-regulated militia," also mentioned in the amendment.
But in May 2001, Ashcroft said in a letter to the National Rifle Association that the Second Amendment protected the individual right to bear arms. The Justice Department took that position formally in a Supreme Court filing this May, saying the right was subject to "reasonable restrictions" on certain types of weapons and categories of owners. A federal appeals court in New Orleans expressed a similar view last October while upholding a law banning gun possession by people under restraining orders for domestic violence.
Defense lawyers in the Big Block case argued that the government was implicitly recognizing gun ownership as a fundamental right, which can be restricted only for compelling reasons. By that standard, they said, the federal law prohibiting gun ownership by convicted felons is unconstitutional, because it requires no finding that the owner is dangerous, and the ban on machine guns is vague and unsupported by congressional findings.
Federal prosecutors responded that the laws were valid restrictions under any interpretation of the Second Amendment.
Patel is the first Bay Area federal judge to rule on the argument, which has also been presented to three other federal judges here in separate cases, according to Assistant Federal Public Defender Steven Kalar.
"Regardless of what Judge Patel thinks, the attorney general has taken a new position on how he views the Second Amendment, and it's going to be important for some court," said Kalar, who filed the motion before Patel. He said the issue would be raised on appeal if the defendants were convicted.
E-mail Bob Egelko at begelko@sfchronicle.com.
"If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of a constitutional privilege." - Arkansas Supreme Court, 1878
Patel says alleged S.F. gang members can't claim right to bear arms
Bob Egelko, Chronicle Staff Writer Thursday, July 4, 2002
http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2002/07/04/BA187238.DTL
Seizing on the Bush administration's new position that the Constitution protects individual gun ownership, defense lawyers in a San Francisco gang prosecution sought dismissal of all weapons charges, including machine gun possession.
A federal judge's response was to wonder what they'd been drinking.
"The motion . . . is one of those clever pieces of mental gymnastics engaged in late in the evening, perhaps after a nightcap," Chief U.S. District Judge Marilyn Hall Patel said in a terse three-page order Tuesday refusing to dismiss charges against 11 alleged members of the Big Block gang in Bayview- Hunters Point.
She also appeared to question the recent change in the government's position announced by Attorney General John Ashcroft, saying the dismissal motion would be misguided "even if (Ashcroft's) statement . . . were a correct statement of Second Amendment law."
The 11 defendants were among 16 arrested in August and September in what police described as an attempt to break up a bloody two-year war over drug turf. Most of the defendants are being held without bail, including Douglas "Boobie" Stepney, described by an FBI agent as the ringleader. A defense lawyer said Stepney was simply a businessman who ran the Big Block record label.
The legal dispute involved the Constitution's Second Amendment, which guarantees the right to bear arms. Until recently, the federal government and every appellate court that considered its meaning said it referred only to the arming of a "well-regulated militia," also mentioned in the amendment.
But in May 2001, Ashcroft said in a letter to the National Rifle Association that the Second Amendment protected the individual right to bear arms. The Justice Department took that position formally in a Supreme Court filing this May, saying the right was subject to "reasonable restrictions" on certain types of weapons and categories of owners. A federal appeals court in New Orleans expressed a similar view last October while upholding a law banning gun possession by people under restraining orders for domestic violence.
Defense lawyers in the Big Block case argued that the government was implicitly recognizing gun ownership as a fundamental right, which can be restricted only for compelling reasons. By that standard, they said, the federal law prohibiting gun ownership by convicted felons is unconstitutional, because it requires no finding that the owner is dangerous, and the ban on machine guns is vague and unsupported by congressional findings.
Federal prosecutors responded that the laws were valid restrictions under any interpretation of the Second Amendment.
Patel is the first Bay Area federal judge to rule on the argument, which has also been presented to three other federal judges here in separate cases, according to Assistant Federal Public Defender Steven Kalar.
"Regardless of what Judge Patel thinks, the attorney general has taken a new position on how he views the Second Amendment, and it's going to be important for some court," said Kalar, who filed the motion before Patel. He said the issue would be raised on appeal if the defendants were convicted.
E-mail Bob Egelko at begelko@sfchronicle.com.
"If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of a constitutional privilege." - Arkansas Supreme Court, 1878
Comments
This judge hit the nail right on the head. And if they were not a bunch of gang bangers, but some poor schmuck who was arrested for not having his gun locked up properly, the judge would have found in favor of the government.
Ifd the judges in that Emerson case could not find that the defendents second amendment rights were violated in that case, then their aint gonna be any case where the government will find someones second amendment rights were violated, or that the government "infringed" on someones second amendment rights.
The supreme court has once again denied another second amendment case(emerson), and it would certainly appear that Emerson was a perfect second amendment case to hear, if the supreme court had any desire to set the record straight on the second amendment.
As long as we count on the federal government protecting our right to bear arms, we are never going to have a right to bear arms.
"The powers delegated by the proposed constitution to the federal governmentare few and defined, and will be exercised principally on external objects, as war, peace negotiation, and foreign commerce"
-James Madison