3 replies to this topic

[bob]

United States v. Weaver (S.D. W. Va. Mar. 6, 2012).

Quote

While it is true that the Fourth Circuit has so far stopped short of expressly
recognizing a Second Amendment right to keep and bear arms outside the home,
this Court has no such hesitation. The Supreme Court itself has acknowledged a
Second Amendment right to protect oneself not only from private violence, but also from public
violence. See Heller, 554 U.S. at 594 (stating that, by the time of the
founding, the right to have arms was "fundamental" and "understood to be an
individual right protecting against both public and private violence."). The
Heller Court additionally mentioned militia membership and hunting as key
purposes for the existence of the right to keep and bear arms. See id. at 598.
Confining the right to the home would unduly eliminate such purposes from the
scope of the Second Amendment's guarantee.

http://www.archive.o...3229.2906.0.pdf


BTW, for anyone who wants the latest news on these kind of things, one of the best places is the Volokh Conspiracy. They sometimes post this kind of thing within a few minutes of the decision, given as many of the people involved with the blog are involved directly or indirectly in these cases. It is on my daily reading list. There is a lot of other stuff worth reading there as well.


http://volokh.com/category/guns/

Edited by bob, 07 March 2012 - 05:15 PM.

[Bud]

While a decision in our favor (It's the Federat District Court of West Virginia) the case is hardly one that I would want to make a reference to in another case as precedent setting.

The case involves numerous members of an outlaw motorcycle gang who legally obtained concealed carry permits to provide protection for one the motorcycle gangs previously convicted of a felony directors. The Court denied the defendents motion.

I am not sure to what part Bob is referring too as positive other than the Court recopgnizing the right to carry outside the home but not in this case. He ruled that has nothing to do with the case at hand but rather, that the dfefendents were violating the law which prohibits carrying a firearm while in the employ of a convicted felon.

And the defendents lost, they will be tried for the offenses named.

[FAL]

This is good, and the volokh site has a history and track record that is quite enviable when it comes to interpreting the outcome of complex cases like this. This was a definite nod to concealed carry, as the judge made it clear that bearing arms outside the home is a fundamental right.

[Tvandermyde]

District Court Concludes Second Amendment Secures Right to Carry, But Not “While Being Employed for” a Felon
Eugene Volokh • March 7, 2012 2:25 pm

So holds United States v. Weaver (S.D. W. Va. Mar. 6, 2012). The judge expressly endorsed Judge Niemeyer’s separate opinion in United States v. Masciandaro (4th Cir. 2011) that concluded that the Second Amendment applies outside the home and not just in the home, and that restrictions on gun carrying must be tested under so-called “intermediate scrutiny.” (For more on the dispute among courts about the right to keep and bear arms outside the home, see this post about yesterday’s district court decision striking down Maryland’s broad gun carry restrictions.)

But the court held that 18 U.S.C. § 922(h), which bars people from knowingly possessing guns “in the course of … employment” “while being employed for any person” who is himself a felon possessing guns. (Here, the defendants were allegedly members of the Pagans Motorcycle Club, and were allegedly taking instructions from a club leader who was a convicted felon.) Among other things, the court held that,

Section 922(h) is … limited in [important] respects: temporally, an individual is only precluded from possessing a firearm while acting in the course of his employment for a prohibited person, and he is free to regain his right to possess firearms by simply parting with the employment relationship. To be quite clear, even an individual who maintains an employment relationship with a prohibited person may lawfully possess firearms, provided he is not acting in the course of employment at the time of the firearm possession. From this discussion, it is clear that Congress tailored the prohibition in § 922(h) to cover only certain individuals at certain times and when they act in certain ways. In other words, the scope of § 922(h) is effectively limited to vicarious possession by prohibited persons, although it penalizes the proxy rather than the prohibited person. It is a commonsense extension of the prohibitions contained in § 922(g). Just as § 922(g) strips firearms from the possession of prohibited persons, § 922(h) effectively strips firearms from their control.

The court does not discuss the situation where someone is employed “for” (the statutory requirement) a person, but whose gun-related actions are not controlled by a person — for instance, if a felon contracts with a security company to provide him with a full-time bodyguard. In that situation, I would think that the bodyguard is “employed for” the felon, though not employed by the felon. Likewise, the court does not discuss what happens when § 922(h) is applied to people who are “employed for” other people who aren’t themselves allowed to possess guns, such as nonresident (but legally admitted) aliens, people who have a history of mental problems, and the like. Section 922(h) applies to anyone who is “employed for” a person who is legally not allowed to possess guns himself, whether because of felony or some other disqualifying characteristic.

I would think that in many such situations the bodyguard’s own Second Amendment rights — including such rights exercised in a place that the bodyguard and the protected person are using as a temporary home — should prevail, at least if the bodyguard is responsible to a security company even though he is “employed for” the company’s client. But perhaps that could be avoided by construing “employed for” narrowly; in this case, the government’s claim is that the defendant’s gun use was indeed being controlled by the felon motorcycle club leader.


This comes fom the volohk conspiricy website