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Weapons Arrest Violates Felon's Right to Possess a Gun


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#1 mauserme

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Posted 25 November 2017 - 06:40 PM

https://www.columbia...5b55c0d54e.html
 

Attorney says weapons arrest violates felon's right to possess a gun

Brooke Johnson

No guns in the home for felons. No exceptions.

Thats what the federal law banning felons from possessing firearms says. However, Columbia attorney Stephen Wyse has a different opinion.

In June, Wyse was the attorney for Columbia resident Rick Gurley after Gurley fatally shot a man named Cameron Caruthers. Wyse said at the time that Gurley shot Caruthers in self defense after Caruthers had entered the home Gurley shared with Kelsy Poore, assaulted Poore, then turned his threat toward Gurley, according to previous Missourian reporting.
...
On Wednesday...Gurley was indicted by a federal grand jury for alleged possession of a firearm by a convicted felon, according to a news release from the U.S. Attorney General for Western District of Missouri.
...
Wyse said he doesn't plan to represent Gurley during his formal arraignment and detention hearing on Tuesday, where Wyse said he's "better than 98 percent sure" that Gurley will plead not guilty.

... it makes more sense for Gurley to use a federal public defender. If that attorney chooses not to argue for Gurleys fundamental right to have a gun in the home for self-defense, however, Wyse said he will step in.

Wyse said that while federal law bans convicted felons from owning a firearm, two Supreme Court cases have upheld the full spectrum of the Second Amendment, which allows people to have guns in their homes. He cited both cases in a Thursday Facebook post:


> In the 2008 District of Columbia v. Heller case, the Court determined that the inherent right of self-defense has been central to the Second Amendment right and the home (is) where the need for defense of self, family, and property is most acute.

> In 2010 the Court upheld that precedent in McDonald v. City of Chicago, stating that the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home.


Neither of these cases involved felons. Both, however, were in response to overarching decrees that prevented people from having handguns in the home. Because of the precedent set by these two cases, Wyse believes Gurley is within his rights to own a firearm, despite being a convicted felon.

Thats not to say that every felon should be allowed to have a gun in their home, Wyse said, just that the firearm ban is too broad.

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#2 biggun 1

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Posted 25 November 2017 - 07:44 PM

one would think that a lawyer would understand the law,s of the land,i wonder what he is charging his client per hour.



#3 Kaeghl

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Posted 25 November 2017 - 08:24 PM

one would think that a lawyer would understand the law,s of the land,i wonder what he is charging his client per hour.

 

Charging? A lot. Any client dumb enough to keep this lawyer on after trying that defense is dumb enough to buy the Brooklyn bridge on installment plans three times over.



#4 Gamma

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Posted 26 November 2017 - 12:23 AM

Regardless of what that attorney or you or I think, SCOTUS just got done declaring that a lifetime firearms ban for misdemeanor negligence is OK with them. Good luck storming the castle.
Illinois' FCCA is a prime example of the maxim that sufficiently advanced incompetence is indistinguishable from malice.

#5 press1280

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Posted 26 November 2017 - 07:05 AM

I don't think the case you're referring to said that a lifetime ban is constitutional under the 2A, merely it was an interpretation of existing statute, which can be changed by Congress or another case can challenge the felon-in-possession statute.

But you're right that its a tall order, when law abiding citizens can barely own handguns inside their own homes.



#6 dumpnpump

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Posted 26 November 2017 - 10:03 AM

It was my understanding that a felon could posess a firearm on his own property in the state of Texas.  Please correct me if I am wrong.


 


#7 tkroenlein

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Posted 26 November 2017 - 11:23 AM

It was my understanding that a felon could posess a firearm on his own property in the state of Texas.  Please correct me if I am wrong.


The state of Missouri did not press charges, the fed did. Federal law so no guns for felons. The state probably passed on this one because I think in many areas of the free part of the country, this is a loser for the SA.

But if this guy is so dangerous he can't own a gun, why is he out of prison?

#8 Hipshot Percussion

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Posted 26 November 2017 - 02:32 PM

I thought it was okay to break a law in defense of life.  


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#9 skinnyb82

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Posted 26 November 2017 - 03:15 PM

I don't believe the categorical lifetime ban on felons owning firearms is at all constitutional. They're essentially saying the guy who got arrested for felony shoplifting is just as dangerous as a murderer. That's preposterous. Non-violent felons should have their rights restored. Even those convicted of forcible felonies like garden variety burglary (not home invasion variety) and have kept their nose clean for some time (10 years, maybe longer?) and have become productive members of society should have their rights reinstated. But it's just a lot easier for the government to say "if you're this then you don't get this."

I thought it was okay to break a law in defense of life.  
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#10 tkroenlein

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Posted 26 November 2017 - 03:42 PM

I don't believe the categorical lifetime ban on felons owning firearms is at all constitutional. They're essentially saying the guy who got arrested for felony shoplifting is just as dangerous as a murderer. That's preposterous. Non-violent felons should have their rights restored. Even those convicted of forcible felonies like garden variety burglary (not home invasion variety) and have kept their nose clean for some time (10 years, maybe longer?) and have become productive members of society should have their rights reinstated. But it's just a lot easier for the government to say "if you're this then you don't get this."
I thought it was okay to break a law in defense of life.  It is. But that's only an affirmative defense. One that may be raised at trial and the judge or jury has to decide whether it's a good enough defense.



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Maybe we should reserve the term felon for those who committed a crime of a personal harm against another.

#11 ragsbo

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Posted 26 November 2017 - 05:18 PM

This comes up every few years. So far the courts don't buy it



#12 rmart

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Posted 26 November 2017 - 05:45 PM

My personal feeling is that once an offender has paid his debt to society his rights should be fully restored. Perhaps after a reasonable probationary period, but if the person isn't safe to own a firearm then perhaps he isn't safe to be released in the first place.

 

I think that nobody should be made to pay for eternity for mistakes made in the past. Let the courts decide what an acceptable punishment should be and then when that punishment is fulfilled, a new start is in order.


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#13 cybermgk

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Posted 26 November 2017 - 06:38 PM

My personal feeling is that once an offender has paid his debt to society his rights should be fully restored. Perhaps after a reasonable probationary period, but if the person isn't safe to own a firearm then perhaps he isn't safe to be released in the first place.

 

I think that nobody should be made to pay for eternity for mistakes made in the past. Let the courts decide what an acceptable punishment should be and then when that punishment is fulfilled, a new start is in order.

The problem is, that convicted criminals have a very high rate of Recidivism.  Of all released from prison, %76.6 are rearrested within 5 years, %56.7 within the first year. 

https://www.nij.gov/...es/welcome.aspx

 

Felons rate is %67.

http://www.google.co...c7rFGlfFGUpjSfL

 

Even when you look at the breakdown by type of felony, except for sex related felonies, and manslaughter have very high rates of recidivism.  Even the non violent felonies clumped in Other is almost 3/4 return to crime.

 

Assault             %59

Burglery            %62.2

Drug                  %62.7

Manslaughter    %38.3

Murder              %52.9

Property            %66.4 

Robbery            %65.9

Sex                    %28.4

Other                 %74.2

 

So, it isn't as simple as 'paid their debt to society' and all is well. 


Edited by cybermgk, 26 November 2017 - 06:40 PM.

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#14 rmart

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Posted 26 November 2017 - 07:27 PM

Then require a five year probation and require felons to serve out their entire term. No early release or probation if you want your full rights back.


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While the people are virtuous they cannot be subdued; but once they lose their virtue, they will be ready to surrender their liberties to the first external or internal invader." ~ Samuel Adams 1779 to James Warren

 

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#15 papa

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Posted 26 November 2017 - 09:42 PM

Then require a five year probation and require felons to serve out their entire term. No early release or probation if you want your full rights back.

This. Also if they can't keep their nose clean after release then they shouldn't be returned to society.



#16 chicagoresident

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Posted 26 November 2017 - 11:00 PM

Neil Gorsuch issued a dissenting opinion on a rehearing of a trial where a defendent with a deferred felony judgement was caught with a firearm.

He basically stated the guy should be retried for the firearms conviction because a deferred sentence could very easily be mistaken by the defendent for not a felony. Since if the defendent followed the terms set by the court he wouldn't technically be a felon until the deferred judgement was reached deeming him a felon or a lesser charge.

So maybe this is why this lawyer thinks this case might have a chance in front of the SCOTUS.

I know a lot of you would like to govern by feels, but good judges do support the rights of everyone including felons.

I don't know exactly how this attorney plans to win this case, but a solid case of using a gun to defend life provides a lot of leeway against any other charges that may be added on. Like legally being allowed to shoot, being under the influence of drugs and alcohol, not being licensed to conceal, civil wrongful death lawsuites, felons with armed bodyguards, etc.

It's this legal gray area in these cases that often determine outcome of cases for more law abiding situations. Like what happens if a felony family member uses your CCW gun to defend you if you were somehow disabled?

US vs. Miller was a case involving a felon with a sawed off shotgun that challenged, failed, and has continued to be cited in upholding the National Firearm Act.

Edited by chicagoresident, 26 November 2017 - 11:06 PM.


#17 skinnyb82

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Posted 27 November 2017 - 07:43 AM

Neil Gorsuch issued a dissenting opinion on a rehearing of a trial where a defendent with a deferred felony judgement was caught with a firearm.He basically stated the guy should be retried for the firearms conviction because a deferred sentence could very easily be mistaken by the defendent for not a felony. Since if the defendent followed the terms set by the court he wouldn't technically be a felon until the deferred judgement was reached deeming him a felon or a lesser charge.


That would be United States v. Games-Perez. Binding circuit precedent at the time only required control of the firearm to prove knowledge of one's felon status. Actual knowledge is irrelevant. The catch is that federal law requires knowledge ("...knowingly possess a firearm..." or some verbiage) of one's status as a felon. Can't possess a firearm as an unknowing felon. Gorsuch sat on the original 3 judge panel that affirmed the man's conviction, then dissented to denial of rehearing en banc, stating he was bound by Capps (circuit precedent) but that exceptionally important question. En banc denied, of course. He was ruled to have constructive knowledge of his status as a felon and therefore it satisfied the knowledge requirement.

"Thus, although he acknowledges that our court has expressly held that 'the only knowledge required for a § 922(g) conviction is knowledge that the instrument possessed is a firearm,' United States v. Capps, 77 F.3d 350, 352 (10th Cir. 1996), he argues his case is distinguishable from Capps and/or Capps was simply wrongly decided."

The defendant received deferred prosecution as per a plea agreement. He was told multiple times that he would not be a felon. But the paperwork he signed stated that he would be a convicted felon. His argument was that he had no idea if he was a felon or...not. Court said "You plead guilty and signed your name on a form that says you'd be a convicted felon, so that satisfies the knowledge requirement contained in 922(g)."

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Edited by skinnyb82, 27 November 2017 - 07:45 AM.

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#18 BShawn

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Posted 23 December 2017 - 12:58 AM

My personal feeling is that once an offender has paid his debt to society his rights should be fully restored. Perhaps after a reasonable probationary period, but if the person isn't safe to own a firearm then perhaps he isn't safe to be released in the first place.

 

I think that nobody should be made to pay for eternity for mistakes made in the past. Let the courts decide what an acceptable punishment should be and then when that punishment is fulfilled, a new start is in order.

 

This is exactly what I think (as stated many times before)!

I feel, if you've "done your time", and you're "good enough" to walk down the same sidewalk as I, then you also have a right to carry a piece for self defense. If you cannot be trusted with a firearm, then you shall NOT be trusted to share the sidewalk with us!

 

Those who are "that bad" should remain incarcerated, institutionalized, or euthanized!

 

I could easily agree with not "restoring" "full rights" IMMEDIATELY upon release, if there's a parole or probation period as well. Naturally so, that is the period in which a previous offender "proves" their ability to function again in "normal society"! But, so long as a person is "free", and NOT on probation or parole, they should enjoy ALL the same rights as someone who has never committed a crime in their life! If they do offend continually, see the previous paragraph! (Those who are "that bad" should remain incarcerated, institutionalized, or euthanized!) Two or Three (violent crime) "strikes" and "you're out" - FOR GOOD !!!


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Drawing any line only restricts law abiding people from crossing such a line. The "line" doesn't exist for criminals so we have to support the second amendment.
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#19 BShawn

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Posted 23 December 2017 - 01:31 AM

 

My personal feeling is that once an offender has paid his debt to society his rights should be fully restored. Perhaps after a reasonable probationary period, but if the person isn't safe to own a firearm then perhaps he isn't safe to be released in the first place.

 

I think that nobody should be made to pay for eternity for mistakes made in the past. Let the courts decide what an acceptable punishment should be and then when that punishment is fulfilled, a new start is in order.

The problem is, that convicted criminals have a very high rate of Recidivism.  Of all released from prison, %76.6 are rearrested within 5 years, %56.7 within the first year. 

https://www.nij.gov/...es/welcome.aspx

 

Felons rate is %67.

http://www.google.co...c7rFGlfFGUpjSfL

 

Even when you look at the breakdown by type of felony, except for sex related felonies, and manslaughter have very high rates of recidivism.  Even the non violent felonies clumped in Other is almost 3/4 return to crime.

 

Assault             %59

Burglery            %62.2

Drug                  %62.7

Manslaughter    %38.3

Murder              %52.9

Property            %66.4 

Robbery            %65.9

Sex                    %28.4

Other                 %74.2

 

So, it isn't as simple as 'paid their debt to society' and all is well. 

 

 

I do not doubt prior offenders "offend" again, and often! In my eyes, we have a few problems that actually inhibit people from prior mistakes, which just leads them to offend again (and again and again and again)!

 

First of which, people should NOT be imprisoned for NON-violent crimes (see: drug use/distribution for example)... This is one of my hangups, hearing about how many people are clogging up cells merely for something to do with "drugs". Of course someone who went to prison on a drug charge is going to just do the same exact thing when they get out! Rather than sending people to PRISON for drugs, maybe they should be, oh I don't know, actually helped? Rehab? Help people get off the drugs? No, why would we want to do that when we could just keep making money off them, and tossing them in cells!?

 

Moving on, if someone makes their first mistake (commits a crime), and they genuinely - internally WANT to be rehabilitated, they're going to find that that is EXTREMELY difficult to do since next to nobody wants to hire a previous felon! So, tell me, if one cannot locate "work", what are they going to do!? Maybe start stealing and robbing? Makes sense to me! Can't "make it" in a legit manner, just start taking what you want... Or, take the easy way out!

 

I also believe a persons RIGHTS come into this (somewhere) too! Voting, firearms, ETC! If a person WANTS to better themselves after they've made a "mistake" (and "done their time"), they're not only going to find it VERY DIFFICULT, but maybe even IMPOSSIBLE!

 

Not to mention, depending on what they did and how long they were "in there", they may have learned more than a few "bad things", that will be EASY to resort to once they realize it's going to be very hard if not impossible to find work, and that they're less of a human because they've now PERMANENTLY lost "rights"!

 

I could not even imagine what this may feel like! Especially since I am one who tries to remember and remind people that it doesn't matter what you have, how big your house is, how nice your car is, how many zero's in your bank account - that you should ALWAYS stay humble because we're all going to have the same size grave in the end! Yet we make people that make mistakes feel like they're crap on the bottom of our shoe? And then ACT surprised when they RE-OFFEND???

 

I heard on the radio not too long ago, that there was a place in Oak Park called "Felony Franks", I had actually passed it on a bike ride once I do believe and was contemplating eating there. At the time I didn't know any better, just thought it was a "catchy" name! Well, back to the point, I heard on the radio that the place was closing down. The owner had (exclusively?) employed prior felons! He did mention that never once did he have a problem with ANY of his employees! His reasons for having to close down were nothing to do with them, and he even said he will now be attempting to HELP THEM find work!

 

Could something go wrong if you try to "help" a prior felon? Sure! Sure can! But that seems to be a risk not enough people are willing to take! Could something go wrong with someone who has never committed a crime BEFORE in their life? Sure, EVERYONE HAS A "BUTTON"! But, when everyone has a right to protect themselves, it does (even if only slightly) reduce that risk IMHO! Maybe, just maybe, the act of NOBODY helping them, is EXACTLY what causes them to RE-OFFEND! Maybe just maybe if some manager stuck his neck out and hired them, they'd stay on the straight and narrow! Maybe just maybe if they were still allowed to vote and protect themselves, they wouldn't feel like the scum that they WILL become if they end up re-offending OVER and OVER and OVER and OVER!

 

The voting one is actually huge to me, personally. Seems these THUG legislators actually WANT to make the list of people who CAN vote as small as they can! They want to make 1,000,000,000,000,000,000,000,000,000,000 laws so that it's IMPOSSIBLE to not be a criminal, then next thing you know next to nobody can vote! That means, LESS people that won't vote for me!? Seems kinda DIRTY to me!

 

So it DOES seem to be a catch22! You CANNOT make a mistake, not even ONE! Because if you do - your life is going to be meaningless compared to those who haven't made any mistakes and were born perfect!

 

I do feel even stronger about all this now because, as of recently I've been doing some driving for one of the popular "ridesharing" "apps", and one of my rides started talking to me about all this, because as it turned out HE himself was a prior felon (still on parole). He noted that he was "locked up" for robbery. It was funny because as we were talking about this (I had news radio on lightly) a story came on about an off duty cop being car jacked, where of course the off duty officer SHOT the perp. I brought that into our conversation and asked (something along the lines of) "how could you rob someone not knowing if just maybe you were robbing an off duty cop, you'd get more than you bargained for". He told me it wasn't random whatsoever, it was an "inside circle" thing! Made sense to me! Long story short, NO, I didn't fear him at all (my gut doesn't steer me wrong, and he didn't set of any red flags [somehow]), and he told me. He works for a business his family owns, and he knows how lucky he is to have that! He did mention "staying on the straight and narrow" from now on because of his kid(s)! But one of the biggest things, was that whole job thing! He knew that if he wasn't lucky enough to have FAMILY to EMPLOY him, he'd probably be right back out on the streets "on some BS to get me locked up again"!

I just hope I personally never make any "mistakes", because I can already see that once you do, you're NOT forgiven, EVER! And it shouldn't be that way!


9ga62or.jpg
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~ Licensed to carry since 2008
~~~~~~~~~~~~~~~~~~~~
~ IL CCL 75 days from application to in hand!
~~~~~~~~~~~~~~~~~~~~
~ I'm not the "bad guy" here, I just want to be able to defend myself and my family. Anywhere I should be permitted to carry a pencil (1st amendment), I should also be able to carry a firearm (2nd amendment) !!!!!!!!!!
~~~~~~~~~~~~~~~~~~~~
"Why do I carry a handgun? Well, look at it this way -- I keep a fire extinguisher in my house. I don't expect to have a fire; indeed, it's highly unlikely. But in the unlikely event of fire, not having the means to stop the fire could result in serious property loss or personal injury to myself and my family. Neither do I expect to be a victim of violent crime; indeed, it's highly unlikely. But in the unlikely event of a violent crime, not having the means to stop the criminal could lead to serious property loss or personal injury to myself and my family. It is simply a matter of common-sense prudence."
GarandFan, 2007
~~~~~~~~~~~~~~~~~~~~
Drawing any line only restricts law abiding people from crossing such a line. The "line" doesn't exist for criminals so we have to support the second amendment.
~~~~~~~~~~~~~~~~~~~~
"The only thing that will stop a bad guy with a gun, is a good man with a gun"
~~~~~~~~~~~~~~~~~~~~

#20 lockman

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Posted 23 December 2017 - 09:31 AM

If you were sentenced to 30 years in prison and are released for good behavior after 15, you are still under sentence for another 15 years.

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#21 Penumbra1811

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Posted 26 December 2017 - 03:12 PM

I'm a convicted felon from 21 years ago. I've been a law abiding citizen since then and I'm still paying the price. Trying to restore my rights and I'm waiting on the state police with there decisions I'm sure it will be a no. I guess they believe once a criminal always a criminal.

#22 WitchDoctor

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Posted 26 December 2017 - 08:03 PM

I'm a convicted felon from 21 years ago. I've been a law abiding citizen since then and I'm still paying the price. Trying to restore my rights and I'm waiting on the state police with there decisions I'm sure it will be a no. I guess they believe once a criminal always a criminal.

I think if you did your bit and can behave for a predetermined amount of time you should slowly get your rights back with the first one being able to obtain gainful employment. Just my thoughts....


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#23 BigJim

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Posted 02 January 2018 - 10:25 AM

In this case who owned the firearm?  If the gun was owned by Poore I don't see how Gurley could be accused of a crime other then not standing there and taking whatever the criminal decided to dish out.


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#24 skinnyb82

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Posted 08 January 2018 - 11:41 AM

I'm a convicted felon from 21 years ago. I've been a law abiding citizen since then and I'm still paying the price. Trying to restore my rights and I'm waiting on the state police with there decisions I'm sure it will be a no. I guess they believe once a criminal always a criminal.

You are (part of) the reason why I believe a blanket prohibition on felons is unconstitutional. As applied in your case. Binderup provided a ton of guidance, although it involved prohibiting misdemeanors, it should extend to felonies. BATFE NEEDS a federal relief process. I've seen convicted felons who have received relief from BATFE get their CCLs. It's patently absurd that you can't get that same thing simply because the program isn't funded. I'd argue that the government not funding it is a de facto denial of a right, a 14th Amendment issue since others in your position have been granted relief simply because of right place, right time.

Here's your narrative. You screwed up 21 years ago and now the State is forcing you to parade around wearing the Scarlett Letter "F" for "convicted felon." It's ridiculous that someone who made a mistake 21 years ago and has been bettering himself for that entire period is still treated the same way a paroled murderer would be. Truly disgusting.

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#25 cybermgk

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Posted 08 January 2018 - 12:09 PM

 

I'm a convicted felon from 21 years ago. I've been a law abiding citizen since then and I'm still paying the price. Trying to restore my rights and I'm waiting on the state police with there decisions I'm sure it will be a no. I guess they believe once a criminal always a criminal.

I think if you did your bit and can behave for a predetermined amount of time you should slowly get your rights back with the first one being able to obtain gainful employment. Just my thoughts....

 

I think it also depends on the felony too, doesn't it?.


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#26 skinnyb82

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Posted 12 January 2018 - 04:29 PM


 


I'm a convicted felon from 21 years ago. I've been a law abiding citizen since then and I'm still paying the price. Trying to restore my rights and I'm waiting on the state police with there decisions I'm sure it will be a no. I guess they believe once a criminal always a criminal.


I think if you did your bit and can behave for a predetermined amount of time you should slowly get your rights back with the first one being able to obtain gainful employment. Just my thoughts....
 


I think it also depends on the felony too, doesn't it?.

Of course it does. Simple proposal. If the crime is "victimless" in the sense that no one is physically injured (I'm talking stole some stuff out of someone's car or something like that) and enough time passes (what's reasonable? 10, 15, 20 years?) with nothing, not even a traffic ticket (extreme but to make a point) then I fail to understand how anyone could be opposed to granting relief. Or even a 20 year old AUUW (when that's the only thing). Even forcible felonies like burglary where a trivial sum of money was stolen should be able to get relief after a certain period of time, provided the person keeps his or her nose clean and is not a serial offender (that's how it works with expunging juvenile records, so what's the difference?). I mean, if they expunge 410 probation for coke/heroin/meth possession and restore gun rights, I don't see why there shouldn't be a mechanism for other crimes.

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#27 Penumbra1811

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Posted 07 February 2018 - 11:54 AM

I'm a convicted felon from 21 years ago I have been clean ever since and I should not have to continue to pay the price after so long. I'm currently in appeal with the state police I havnt heard anything from them since my appeal took place a month ago. This is ridiculous how long do I have to keep paying for this??




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