“Adam Winkler, a constitutional law professor and Second Amendment expert at University of California (Los Angeles), … said the NRA’s concerns are largely unfounded. ‘At the end of the day it’s not a thorny issue,’ Winkler said. ‘It’s not a Second Amendment violation to take away the guns of someone who is dangerous.'” – Restraining Orders, But For Guns [via nationaljournal.com]
and of course anyone who does not agree with the same principles that we agree with are dangerous
May as well take away the rest of their rights also, that’ll fix the danger
Exactly. That’s the argument the other side wants to deflect. They are completely okay with stripping people of their due process because guns. It’s always a double standard with proggies.
Although I suspect you’re being sarcastic, you’re absolutely right. We should take away all their rights. It’s called jail, and if you’re so dangerous that you shouldn’t be allowed to legally possess a firearm, then you shouldn’t be free in the first place.
He’s right to a degree. If somebody is a present danger to themself or others we take away some of their freedoms. Been that way for centuries. The issue is one of due process. I mean its not a violation of the 4 th amendment to lock up criminals, but once you start doing it without a fair trial it is the definition of a police state.
He sounds like somebody who has never had the state in one shape or another take a huge sloppy dump on his head.
I didn’t know such naive privileged people still existed.
If you’ve made it to adulthood without an experience that would teach you trusting authority is foolish and dangerous you are either exceptionally insulated or are working for them.
He is an attorney and he grew up in LA as the son of a movie producer, so he probably never has had a problem with the government. According to the all knowing wiki Kopel liked his book, so he might not be all bad.
I can define dangerous:
Somebody who’s willing to deny the rights of others without due process.
Where does he say anything akin to “without due process”?
It’s implied
As Baker said, “If someone is really going to go on a murderous rampage, a restraining order doesn’t mean anything to them.”
So they even admit, there is a definite possibility of a firm maybe that the GVRO might work. Until it doesn’t.
‘it might do something, but it wont do anything’
Obviously, when the GVRO doesn’t work, we just need “one more law” to save just “one more life”… and when someone inevitably breaks that law, we just need “one more law” to fix the previous one… rinse, repeat.
So if you’re “dangerous” is it ok to take your 1st Amendment rights, too?
If your dangerousness is your speech, then yes. You do not have a first amendment right to foment rioting or violence, for example.
That’s not the scenario we are talking about. Let’s say you are a politically outspoken individual who blogs and attends rallies. Outspoken, but not violent in action or rhetoric. Let’s say someone who politically disagrees with you files a complaint with law enforcement claiming you are spewing “hate speech” and fomenting a violent revolution. So the LEOs tell you to cease all blog and speech activities. They take away your computer and any means to write or communicate. They convince twitter, reddit and facebook to put a hold on your account until the investigation is “completed”. Would you have a problem then? I sure as hell hope you do.
I’m sympathetic with your reasoning but I think it will be taken as ineffective politically.
When examining gun rights and comparing them with speech rights the Antis will claim that “sticks, stones and bullets will break bones and cause irreparable harm while words will never hurt me”. There is a difference in kind between the 1A and 2A rights. They must be treated separately.
(Conversely, when those same Antis are supporting suppression of free speech they will claim their sensibilities are so delicate that they will suffer irreparable injury if they hear anyone utter the ‘T’ word [Thug] in their presence.)
Our best position is to hold that the value judgement was concluded in 1791. In weighing the irreparable harm:
– to the innocent victim of crime or tyranny vs.
– to the innocent victim of a (heretofore) peaceable individual’s intemperent action
the interests of the former trump those of the latter. Don’t like that decision; seek another Constitutional Amendment.
We already have (in Heller) that the 2A is a “fundamental right” on a par with the 1A. That ought to mean that the 2A is entitled to be interpreted according to the highest standards of scrutiny in its own right.
A more defensible comparison would be, e.g., the constraints on warrants, freedom from being compelled to testify against oneself and the right to council. We know that these constraints and freedoms allow many guilty to go free; nevertheless, we hold them as sacrosanct because the risks of a police state are a far worse bargain. Likewise, the risk of leaving the People without the means of immediate self-defense are far worse than the cost of occasional misuse of those means.
All rights ( privileges) are to forfeited by a determination of the Ministry of Pre-crime and Thought Crime. The Ministry of Love shall then determine the pre-debt to be paid to Oceania and the ensuing offenses against Big Brother.
Perhaps correct… IF the restraining order was issued after due process in which the “dangerous person” was able to defend him/herself against the accusations…
A “permanent” GVRO cannot be issued without a hearing after notice and an opportunity to be heard. An “opportunity to be heard” means that the object of the order has the right to be represented by counsel, and to present evidence, including witnesses, at a trial scheduled by the court. A temporary order can be issued “ex parte” on the same evidentiary basis required for a warrant, but last only two or three weeks, until the hearing on the permanent order. This process complies with constitutional dictates for due process. Finally, the permanent order cannot exceed one year, and the standard of proof is “clear and convincing evidence.” Unlike the process for involuntary confinement in a mental facility for a person who is a risk of harm to himself or others, there is no confinement of the individual, and no permanent loss of gun rights that follow under federal law for an involuntary confinement.
And this guy teaches law? What part of “SHALL NOT be infringed” do these people not understand?
I’m going to go with the “NOT”
Frank, it’s not a Second Amendment issue, it’s a 5th and 6th Amendment issue.
From the 5th: “…nor be deprived of life, liberty, or property, without due process of law…”
From the 6th: “… and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”
The CA law appears to contain no mechanism for the accused to confront his accusers or provide for his own defense, before his property is seized without compensation. That’s a clear violation of the 5th and 6th, and the 2nd doesn’t even need to come into it.
Half right; the 6th only applies to criminal cases, these GVROs are civil. And yes, I understand that the “civil” end is being abused to get around the protections afforded by the “criminal” end, but it is what it is.
It is not a fifth amendment issue either. The statue specifically provides for a hearing at which the “defendant” may introduce evi9dence shortly after the issuance of a temporary restraining order. Let me put it this way. Let’s say you are a businessman, in the business of selling heroin and methamphetamine. Pursuant to a warrant issued by a judge, the police come in and seize all of your property, even though you are only accused but not convicted of a crime. Is this a fifth amendment deprivation? No. it is the same with a California GVRO, it requires the issuance of a warrant by a judge based on reasonable cause to believe that the person is an immediate threat of harm to himself or others.
The summary of the law states: This bill would additionally authorize a court to issue an ex parte gun violence restraining order prohibiting the subject of the petition from having in his or her custody or control, owning, purchasing, possessing, or receiving, or attempting to purchase or receive, a firearm or ammunition when it is shown that there is a substantial likelihood that the subject of the petition poses a significant danger of harm to himself, herself, or another in the near future by having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm and that the order is necessary to prevent personal injury to himself, herself, or another, as specified. The bill would require the ex parte order to expire no later than 21 days after the date on the order and would require the court to hold a hearing within 21 days of issuing the ex parte gun violence restraining order to determine if a gun violence restraining order that is in effect for one year should be issued. The bill would require a law enforcement officer or a person at least 18 years of age who is not a party to the action to personally serve the restrained person the ex parte order, if the restrained person can reasonably be located.
I think the search warrant process (as implemented, not as it was intended) shows exactly how the law can be abused. How many search warrants are denied in this country? How many warrants are issued by those who aren’t even real “judges”? And when was the last time a cop actually suffered any repercussions for lying on a warrant?
In practice, the warrant system is no longer a check or a balance- it’s a formality – where the government simply rubber-stamps its own actions. Judges (or many times magistrates) that question warrant apps are simply bypassed for “friendly” judges. And even with the flowery protective language in the law, judges aren’t a bit bashful about taking your property (and your freedom) on the weakest bit of evidence .
Didn’t we just have 160+ bikers in Texas jailed in Texas on (million dollar bonds) for being near the scene of a gunfight – and it was all “approved” by a judge? They’ll all be bankrupt & unemployed before they actually get their “fair” hearing, even though the reports are, at least a few showed up after everything was done.
I’m not a lawyer, and I don’t know how law schools used to function, but from what I know of the people who are coming out of law school today, (that I know personally) lawyers are extremely utilitarian with little moral compass, and they are simply taught to manipulate language to use force of law to whatever ends they choose. That said I know there are some good ones out there, but most that I meet are busybody jerks. Anecdotal I know, but just my 2 cents.
AN fully indoctrinated with full on libtard jackassism. A FEW manage to overcome this. Very few.
I can tell you know few attorneys. Most of the ones I know that are business or insurance defense attorneys are hard core Republicans. Just look at the criminal defense bar. Many are famously liberal–but then there are ones like Ralph. I would guess that nationwide the proportion of republicans to democrats among the members of the bar roughly reflect the national percentages.
Law school does not seek to instill moral values–it is expected that you had those when you arrived, except for the specific ethical rules by which the profession is bound that are taught in law school. Are their immoral and corrupt attorneys? Of course, same as in any occupation or profession, and it is just as true that there are many who are morally upright and honest. What bar associations are supposed to do is weed out the bad ones who steal, drink, do drugs, abandon their clients, and so forth.
“… said the NRA’s concerns are largely unfounded.”
Okay, then, since they’re not entirely unfounded, pray tell which of the NRA’s concerns are well-founded.
BTW … Everyone is capable of being dangerous under the right circumstances. Just so you know.
The NRA’s concern that the statute will be abused is that to which he refers. He believes that the concern is oveblown because there is a judicial check on the entire process, and as to final orders, a very high standard of proof.
If an individual is objectively dangerous enough to deprive him of his 2A rights then he is dangerous enough to commit to custody; i.e., to deprive him of his liberty to harm others.
I question whether the bureaucracy could succeed in getting a new name into NICS before the subject of the GVPO could run out to his LGS and buy a gun.
In any case, is there any evidence that a significant number of such persons buy a new gun on the eve of committing an act of violence? Or, is it predominantly the case that they have already acquired a gun? In the latter case, a dangerous person would most likely take the precaution of stowing an already owned gun in a place where it would not be readily seized.
A GVPO does nothing to deprive the subject of access to sharp or blunt objects or any improvised weapon.
The GVPO appears to be a vehicle for aggrieved parties to harass the objects of their irritation or concern with the complicity of immune judges with an anti-gun agenda.
There is a legitimate issue of public safety here; individuals exhibiting dangerous behavior. It can’t be resolved in a meaningful way by addressing one instrumentality. It can only be dealt with meaningfully by commitment. Let judges and legislatures deal with the issue in a meaningful way where our principles of liberty to go about one’s legitimate affairs stands as the barrier against tyranny.
Exactly! If a person is so dangerous that they think their guns should be taken away, then they should go through the procedures to have this “dangerous” person taken into protective custody.
Because if they would use a gun to murder someone, then they could use a car, a can of gas and a lighter, a knife, an ax, hatchet or hammer.
California has a ten day wait, and runs its own background check system through the CADOJ. GVROs are reported by the Court to the DOJ. No problem there.
The claim in the article that this law is connected to the Isla Vista murders is only loosely correct. The law was written a year previously and the Isla Vista incident was the excuse to get it passed. Further, Roger’s parents did not know he owned guns, and thus the law would have been of no efficacy. The tenuous connection is that his parents had sought unsuccessfully to get him committed on a 5150 hold, and being an adult, they could not confine him in an institution without his consent. This “weak sister” law would have, had they known of his guns, allowed them to obtain a seizure order.
In most circumstances, this law will be applied only in circumstances involving suicidal individuals (or perhaps those who might go the murder suicide route), and not to violent stalkers or predators, for whom there are far more potent criminal and civil remedies.
According to Bloomberg dangerous means young and minority.
that definition is far too narrow: “dangerous” to Bloomberg means anyone who opposes his progressive elitist statist tyranny with sufficient means and will to cause his trouble.
I was just going by what he said at the aspen institute, but I did forget the male part of that quote.
Not so sure about your assessment, I suspect “dangerous” to Bloomberg and Co. means anyone who believes in the Bill of Rights.
*See above reference to his own words
I’ll stop bringing that up when they stop bringing up columbine, Sandy hook, Isla Vista, Virginia tech, and every other shooting I had nothing to do with.
How much of an expert on the 2nd can this guy be when he interprets “shall no be infringed” to mean “infringement is ok”? I suppose he also thinks its a collective right and really applies to militias.
Does being an expert on the 2nd also excuse him for his lack of knowledge around the due process clause of the 5th and 14th?
I mean who has the time to study the entire constitution!
UCLA should tell you ALL you need to know.
Maybe you should read the statue before you go making legal pronouncements. There are no fifth or 14th amendment issues under the statute as written, since the statute does provide for at least two hearings before a permanent (one year) ban can issue. Further, the statute does not permanently deprive one of one’s property; guns are to be returned when the order(s) expire. Although Winkler and I disagree about a lot of things, he is correct on the law on this one.
“at University of California (Los Angeles)”
Well that explains a lot.
It’s not only a violation of your 2nd Amendment rights, it also violates your 5th and 14th Amendment rights.
And as Steve points out above… so can we then ‘suspend’ people’s 1st Amendment rights without due process?
It’s a VERY thorny issue, Mr LA LA Head
Mr. Winkler is either being absolutely stellar in his naivete’ or absolutely hellish in his mendacity when he says “no judge is going to sign [a GVRO] unless he has reason to believe a person is dangerous”. Under the law, there is no downside whatsoever for a judge who signs an order he shouldn’t have and takes a non-“dangerous” person’s guns. There is all kinds of downside if a judge does not sign an order and the respondent does something bad with a gun. Which way do you think the judge will routinely go?
This is the legal standard for a police officer to obtain a GVRO:
(a) A temporary emergency gun violence restraining order may be issued on an ex parte basis only if a law enforcement officer asserts, and a judicial officer finds, that there is reasonable cause to believe both of the following:
(1) The subject of the petition poses an immediate and present danger of causing personal injury to himself, herself, or another by having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm.
(2) A temporary emergency gun violence restraining order is necessary to prevent personal injury to the subject of the petition or another because less restrictive alternatives either have been tried and found to be ineffective, or have been determined to be inadequate or inappropriate for the circumstances of the subject of the petition.
The standard for an immediate family member is:
. (a) (1) An immediate family member of a person or a law enforcement officer may file a petition requesting that the court issue an ex parte gun violence restraining order enjoining the subject of the petition from having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm or ammunition.
(2) For purposes of this subdivision, “immediate family member” has the same meaning as in paragraph (3) of subdivision (b) of Section 422.4.
(b) A court may issue an ex parte gun violence restraining order if the petition, supported by an affidavit made in writing and signed by the petitioner under oath, or an oral statement taken pursuant to paragraph (2) of subdivision (a) of Section 18155, and any additional information provided to the court shows that there is a substantial likelihood that both of the following are true:
(1) The subject of the petition poses a significant danger, in the near future, of personal injury to himself, herself, or another by having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm as determined by considering the factors listed in Section 18155.
(2) An ex parte gun violence restraining order is necessary to prevent personal injury to the subject of the petition or another because less restrictive alternatives either have been tried and found to be ineffective, or are inadequate or inappropriate for the circumstances of the subject of the petition.
(c) An affidavit supporting a petition for the issuance of an ex parte gun violence restraining order shall set forth the facts tending to establish the grounds of the petition, or the reason for believing that they exist.
(d) An ex parte order under this chapter shall be issued or denied on the same day that the petition is submitted to the court, unless the petition is filed too late in the day to permit effective review, in which case the order shall be issued or denied on the next day of judicial business in sufficient time for the order to be filed that day with the clerk of the court.
18155. (a) (1) The court, before issuing an ex parte gun violence restraining order, shall examine on oath, the petitioner and any witness the petitioner may produce.
(2) In lieu of examining the petitioner and any witness the petitioner may produce, the court may require the petitioner and any witness to submit a written affidavit signed under oath.
(b) (1) In determining whether grounds for a gun violence restraining order exist, the court shall consider all evidence of the following:
(A) A recent threat of violence or act of violence by the subject of the petition directed toward another.
(B) A recent threat of violence or act of violence by the subject of the petition directed toward himself or herself.
(C) A violation of an emergency protective order issued pursuant to Section 646.91 or Part 3 (commencing with Section 6240) of Division 10 of the Family Code that is in effect at the time the court is considering the petition.
(D) A recent violation of an unexpired protective order issued pursuant to Part 4 (commencing with Section 6300) of Division 10 of the Family Code, Section 136.2, Section 527.6 of the Code of Civil Procedure, or Section 213.5 or 15657.03 of the Welfare and Institutions Code.
(E) A conviction for any offense listed in Section 29805.
(F) A pattern of violent acts or violent threats within the past 12 months, including, but not limited to, threats of violence or acts of violence by the subject of the petition directed toward himself, herself, or another.
(2) In determining whether grounds for a gun violence restraining order exist, the court may consider any other evidence of an increased risk for violence, including, but not limited to, evidence of any of the following:
(A) The unlawful and reckless use, display, or brandishing of a firearm by the subject of the petition.
(B) The history of use, attempted use, or threatened use of physical force by the subject of the petition against another person.
(C) Any prior arrest of the subject of the petition for a felony offense.
(D) Any history of a violation by the subject of the petition of an emergency protective order issued pursuant to Section 646.91 or Part 3 (commencing with Section 6240) of Division 10 of the Family Code.
(E) Any history of a violation by the subject of the petition of a protective order issued pursuant to Part 4 (commencing with Section 6300) of Division 10 of the Family Code, Section 136.2, Section 527.6 of the Code of Civil Procedure, or Section 213.5 or 15657.03 of the Welfare and Institutions Code.
(F) Documentary evidence, including, but not limited to, police reports and records of convictions, of either recent criminal offenses by the subject of the petition that involve controlled substances or alcohol or ongoing abuse of controlled substances or alcohol by the subject of the petition.
(G) Evidence of recent acquisition of firearms, ammunition, or other deadly weapons.
(3) For the purposes of this subdivision, “recent” means within the six months prior to the date the petition was filed.
I would arm felons before I supported a gun grabber.
DANGEROUS = FEAR OF GUNS [If they think they need counseling, tough, we’re just going to put them in an asylum so we don’t have to hear their cr_p].
“If an individual is objectively dangerous enough to deprive him of his 2A rights then he is dangerous enough to commit to custody; i.e., to deprive him of his liberty to harm others.”
Exactly right. Through due process I should add to make that clear. The problem with his notion is the same weak nebulous use of a word as when anti-gun people ask for a “reasonable” gun law as a way to avoid high hurdle strict scrutiny and instead clear the very low hurdle rational basis tests for infringement.
It is easy to call anyone dangerous or any infringing regulation reasonable provided the term is ill-defined. My biggest worry is that “dangerous” will join “reasonable” in the infringement support lexicon like “pornographic” has: those opposed to “it” cannot define it, but sure sure know it when they see it or if just one of them sees it.
Giving articles like this an ounce of credibility does not bode well for the 2A.
^ This, it’s good that we’re being informed but these turds have tripled their reader/viewership just by being linked here. Freedom of the Press NEVER spills over into freedom of speech and vice versa.
“Continuing very briefly with the idea of compulsory support mentioned above, and by quick example, that the possession and implementation of the use of arms by individuals in U.S. Societies, is the lone insurance in defending every other “right.” Consider that, “We the People” of the United States, support the use of the press, by the press. However, we do not (cannot long) support the use of ‘the press’ by the press for the press [20].
Too often the incarnations of ‘press’ (media) are required to generate media to retain the attention of an audience. To this end they, often, fail to recognize their foundation of silence as the mid-point rather than the base of their action.
Polluted is the thought that reporting both sides of an argument always constitutes fairness, when one side would clearly never, otherwise, see the light of day; (because of its’ previous rejection by societal agreement).
Dangerous too, is the notion that the press needs to expose every idea not already in the mainstream as a channel for societal enlightenment. That is, the ‘press’ often forgets that they do not have to say anything.” [TERMS, J.M. Thomas R., 2012, pg. 46]
“There are laws to protect the freedom of the press’s speech, but none that are worth
anything to protect the people from the press” (Mark Twain http://quotes4all.net/
Defining who is “dangerous” will likely be a continuously moving target.
Of course it will. Remove objectivity, make everything subjective, and remove due process.
It’s funny how they rant that it’s “dangerousness, not diagnosis” that differentiates the bad guys from the merely mentally ill guys. This wordplay shields the crazies while exposing any ol’ gunowner whom someone happens to slander. Well.
In the three big cases they cite as justification for these civil rights abominations, Isla Vista, Tuscon, and Sandy Hook, none of those killers had a history of violence, just illness. Vurious, that.
Their solutions not only wouldn’t prevent future attacks, they wouldn’t have prevented past attacks.
Their intent, or “solutions” is not meant to prevent criminal activity.
“It’s not a Second Amendment violation to take away the guns of someone who is dangerous.”
Perhaps not. However, a restraining order in itself does not tell us who is dangerous, but rather who is ALLEGED to be dangerous. Until such allegations are proven (at which point a truly “dangerous” person should probably be incarcerated), any attempt to take away guns SHOULD BE considered an illegal seizure of personal property.
Steve nails it. I put the argument right back at him…
So, we know you don’t care about the 2nd Amendment because your a friggin hoplophobic liberal… but let’s apply your same exact (ill) logic to the 1st Amendment…. If I (or whomever in this case) determine you to be ‘dangerous’, can we then suspend your 1st Amendment rights? What’s the difference?
It’s the same thing with alcohol and guns. Put the argument right back at the Anti’s. So will you then apply your same logic to alcohol, Mr and Mrs Anti? Alcohol is by FAR a bigger driver a crime and death of all sorts. Ask ANY cop. Apply all of their same exact arguments to alcohol, and what’s their answer then? If it saves ONE life, right???
Their ‘argument’ has nothing to do with logic, and everything to do with their hoplophobia and hatred for firearms.
Is it just me, or is there a bit of a psychotic twinkle in his eyes in this picture?
I find it interesting that a judge can commit a convicted person to prison for a defined period or time, not so much to rehabilitate him, but to punish him. Yet that same judge may decide to commit the person to a mental institution for an indefinite period of treatment, or until a panel of psychiatrists and psychologists deem him fit to be released back into society. Both systems appear to be seriously flawed, and neither approach requires any real accountability on the part of the decision maker, should the released individual prove to be a dangerous, or even lethal threat to society. Simple logic should tell us that anyone we trust to move freely about our society should also be considered trustworthy to exercise the right to firearms possession, or else they should not be free in the first place. Note that the law does not prevent a former felon from acting in justifiable self-defense. It’s simply choosing the means by which it will allow him to do so. And it makes no distinction between violent felons and the more genteel variety. Why not make them wear a symbol on their clothes so we can avoid them. Perhaps a picture of a pistol inside a circle with a bar through it, or maybe a star of David. If you’re going to treat them as second-class citizens, why not do it right? Let’s see…wrong religious or political views…convict of hate crimes… deny basic rights…concentrate in special ghettos…where have I heard this before?
Actually, it is both a Second Amendment and a Fifth Amendment rights issue.
If someone is too dangerous to possess firearms, then they are too dangerous to be on the loose in society: they either need to be in a prison (if they committed a crime) or in a secure mental hospital (if they are mentally ill). And either option can ONLY happen after going through Fifth Amendment due process … which entails accusers, witnesses, and evidence in a trial with a jury of the accused’s peers.
… and also the Sixth Amendment as PeterZ illustrated earlier. (Great minds think alike.)
Again, the 6th only applies to criminal cases. GVROs are civil cases. There is no right to appointed counsel in a civil case. The right to compulsory process for witnesses, notice to the respondent, etc is covered by the Due Process clause in the 5th in civil cases.
My problems with this guy are my problems with this law.
He has faith in a lone, nameless, faceless judge to determine who is “dangerous”, based on one sided, incomplete information.
He has faith that such an infinitely elastic term like “dangerous” will be prudently and deliberately applied.
He believes that those filing such restraining orders will find comfort in having done so, even if their target finds another means of murder or never tries to harm anyone at all, and that finding “comfort” is superior to trampling civil rights.
Well. I think he’s dangerous and I would take great comfort if his law license were revoked and his employment terminated. See what I did there?
Excellently stated. Once again, the guy is either spectacularly naïve or damnably deceptive.
Yep, you nailed it. Giant bureaucracy vs Regular Joe (or Josephine), and the power of force to back it up. How is this any different from “The Crown” ordering things, or some totalitarian regime like the Soviet Union? Just a matter of degree, seemingly.
All excellent points. I especially enjoyed this one:
“He believes that those filing such restraining orders will find comfort in having done so, even if their target finds another means of murder or never tries to harm anyone at all, and that finding “comfort” is superior to trampling civil rights.”
This falls perfectly in line with TTAG’s previous article on “angry” gun owners and that “angry” gun owners need to be targeted for confiscation.
Ah yes, another nonlawyer pundit who hasn’t read the law. Try again when you actually know of what you speak. I suggest that you start by reading the statute involved. A cop or a medical health professional can have you locked up in a mental ward for 72 hours with less evidence than is required by this law, and a 5250 ten day hold not much more than that. The 5150 hold will cost you your gun rights for ten years, and a 5250 for life, to say nothing of the loss of freedom while you are involuntarily restrained.
“A cop or a medical health professional can have you locked up in a mental ward for 72 hours with less evidence than is required by this law, . . . ”
Interesting way of looking at it. We could (tentatively) presume that the cop or medical health professional is an unbiased 3’rd party; i.e., not your spouse or neighbor with whom you may be quarreling. Granted, the cop or medical may have anti-gun biases; but, at least, he has professional standards to maintain.
Conversely, “Hell hath no fury like a woman . . . ” If your spouse is going after you she may well have a more complete picture of your behavior and yet she is apt to be highly biased. She ought to be expected to meet a higher standard including enough teeth in the law to enable a perfectly innocent subject to invoke the power of the state for her abuse of the state’s summary powers.
We are altogether a bit itchy in the trigger finger whenever a new law is drafted/adopted that purports to touch our gun rights.
Fundamentally, my objection is that it’s directed at a single instrumentality while ignoring sharp objects, blunt objects and any other improvised weapon. It does nothing to ensure that the subject’s access to arms will effectively be curtailed. If the subject is that dangerous he ought to be confined so that he can’t access any weapon.
I recommend the book “My Brother Ron; a Personal and Social History of the Deinstitutionalization of the Mentally Ill” by our beloved gun historian Clayton E Cramer. It covers – quite thoroughly – the law on civil commitment.
Mark? Your point is what, exactly? There currently exist other legal means whereby other people may obliterate your rights without due process, so this extension of that travesty to still more people is, what, exactly? OK? No biggie? Just because Item B is worse than Item A, that doesn’t make Item A no longer bad, and it certainly doesn’t make Item A good.
You wrote that I should read the law. I have, but what, exactly, do you expect me to find in it that would refute anything I’ve written here? Normally, when someone argues “Go read the law!”, they follow up with “….because, there you will find….” such and such that counters whatever had been claimed.
You offer nothing of that sort. You just vomited some displeasure with my post, but never really made any kind of counterargument, save a hamhanded reference to other and worse legal provisions.
Assuming you’re a lawyer, what you’ve written here is tantamount to arguing in court that your client can’t be guilty of aggravated assault, because what he was really going for was attempted murder. Oh really…..? Strong case, Mark. Thanks for stopping by.
He has faith in a lone, nameless, faceless Big Brother to determine who is “dangerous”, based on one sided, information from the Ministry of Truth.
He has faith that such a term like “dangerous to Big Bother and Oceania” will be prudently and deliberately applied.
He believes that those filing such restraining orders will find comfort in having done so through the Ministry of Love, and that finding “comfort” is superior to trampling rights ( privileges) as all have Freedom from Fear.
You are all missing the point; this is one of those “micro-aggressions,” the point of which is to gently advance the image of gun owners as potential killers. The tenderfooting around the legalities is designed to softly promote the notion not only that a compromise of rights is agreeable, but necessary due to their outdated nature. OMG, OMG… I’m gonna faint… I think I need a safe space…
(begins hyperventilating)
Was the below passed without me noticing?
The right of the people to keep and bear arms (unless they are perceived as dangerous) shall not be infringed.
Lets see… from the article:
That’s exactly what we are thinking about. What they are describing is called “confiscation” and anti-gun people say that never happens. It’s a legality that can be abused which leads me to my next topic:
Easily abused. Very easily. All someone needs to do is claim they know that person personally and they fear they will commit a violent act based on statements and behavior observed and the court will grant it. The judge won’t want to deny it. What if someone dies because he didn’t grant it? They will approve as they don’t want to be blamed. Then we open the doors for LEO’s everywhere to bust in and confiscate people’s property without warning. The accusation made by the person may not be able to be proved false however could be false. As simple as one person’s word against another. And the court actually grants it – based on accusations only. Easily abused. Also – LEO’s as indicated above can request GVROs also. I can see where that could go.
Besides misusing the GVRO for personal vendettas or even political reasons, it would be a slick trick to set someone up to be robbed. A disarmed target is a soft target.
The ex parte order is only good for 21 days, and requires documented evidence under oath of violence towards oneself or others. And this article does not accurately reflect the actual legal standard involved. There is no permanent loss of ownership of firearms even if a permanent order is issued after a contested hearing; instead, your property is returned when the order is revoked or expires.
Yeah, yeah, yeah……
Likewise, police are supposed to return your firearm following closure of an investigation for a DGU. And yet, we see people having to file expensive lawsuits to obtain a court order compelling police to return relatively inexpensive firearms.
Likewise, municipalities and other political subdivisions of the state are subject to preemption laws. And yet, we see people having to file expensive lawsuits to compel cities to comply.
Likewise, open carry of long guns and/or handguns is legal in some states. And yet, we see officers harrassing OC’ers, citing them for disorderly conduct, and forcing them to defend themselves in expensive and frivolous criminal cases.
There’s a whole lot out there that the government has no authority to do, but does anyway, meanwhile daring you to endure the consequences of exercising your rights. It’s the difference between paper law and the real world, a difference upon which many lawyers make a living.
It seems the only people in support of this infringement are politicians who want to disarm us, and lawyers who want to fleece us.
And what is the definition of “dangerous”? Might some judge construe it to mean, if brought forward by certain parties, that the person who has expressed an opinion in rough language that Barack Hussein Obama (just to use an example) isn’t perfect is somehow “dangerous” and needs a GVRO levied against them? What if its someone who has expressed an opinion that they’ll “fight back” against new taxes, etc? A danger to who, exactly? This is the whole point of due process and facing accusers, so that these sorts of things cannot be abused by corrupt people.
This:
(b) (1) In determining whether grounds for a gun violence restraining order exist, the court shall consider all evidence of the following:
(A) A recent threat of violence or act of violence by the subject of the petition directed toward another.
(B) A recent threat of violence or act of violence by the subject of the petition directed toward himself or herself.
(C) A violation of an emergency protective order issued pursuant to Section 646.91 or Part 3 (commencing with Section 6240) of Division 10 of the Family Code that is in effect at the time the court is considering the petition.
(D) A recent violation of an unexpired protective order issued pursuant to Part 4 (commencing with Section 6300) of Division 10 of the Family Code, Section 136.2, Section 527.6 of the Code of Civil Procedure, or Section 213.5 or 15657.03 of the Welfare and Institutions Code.
(E) A conviction for any offense listed in Section 29805.
(F) A pattern of violent acts or violent threats within the past 12 months, including, but not limited to, threats of violence or acts of violence by the subject of the petition directed toward himself, herself, or another.
(2) In determining whether grounds for a gun violence restraining order exist, the court may consider any other evidence of an increased risk for violence, including, but not limited to, evidence of any of the following:
(A) The unlawful and reckless use, display, or brandishing of a firearm by the subject of the petition.
(B) The history of use, attempted use, or threatened use of physical force by the subject of the petition against another person.
(C) Any prior arrest of the subject of the petition for a felony offense.
(D) Any history of a violation by the subject of the petition of an emergency protective order issued pursuant to Section 646.91 or Part 3 (commencing with Section 6240) of Division 10 of the Family Code.
(E) Any history of a violation by the subject of the petition of a protective order issued pursuant to Part 4 (commencing with Section 6300) of Division 10 of the Family Code, Section 136.2, Section 527.6 of the Code of Civil Procedure, or Section 213.5 or 15657.03 of the Welfare and Institutions Code.
The bulk of that section translates as “Hearsay……blah….blah….blah….hearsay…..blah….blah….blah….hearsay….”
HeartlandPatriot is right. If someone’ s making allegations, then you have the right to confront your alligator.
If they are too dangerous to have firearms then they are too dangerous to be walking around free and unsupervIsed.
Winkler is no second amendment expert, quite the opposite.
I won’t vouch for or against his 2A expertise, but he could stand some brushing-up on the 5th. Not to mention the reality of the judicial decision-making process.
“Winkler said. ‘It’s not a Second Amendment violation to take away the guns of someone who is dangerous.'”
No, that’s exactly what it is.
If they’re too dangerous for a basic right, then they’re too dangerous to be out in public at all.
And how is it that dangerous people are removed from society, hmm? Would it be by a criminal charge and eventual conviction, or an involuntary mental health hold? Come one people, the judicial process starts with an accusation, a search warrant, an arrest. Are your rights to due process violated by any of these?
Or does there have to be a contested hearing on every warrant and every arrest before a seizure is “lawful”? (I think not.) The fact of the matter is that the Constitution allows people to be locked up pending trial (in some circumstances) and property to be searched and seized long prior to trial. How is this any different–especially when the ex parte order is only good for three weeks before there MUST be a contested hearing?
Obviously, due process. There needs to be a reasonable accusation of criminal behavior, or a court-ordered mental hold.
Barring that, present and immediate danger, as usual. It’s not that difficult. Strict scrutiny for taking anyone’s constitutional right away.
One mans “expert” is another’s useful idiot. All I can say is if some gal accuses you(guilty or not) hide your shite. I know I had an ex accuse me 30years ago of all kinds of crap(loudly) to anyone within earshot-as she was boinking her ex-boyfriend…glad nothing ever came out of it.
Mark N, thanks for the factual explanations and patient repeat discussions. I am not wild about the GVRO, but I am no longer quite so suspicious. My concern is more about how Assemblywoman Skinner claimed she had been working on mental heath issues- more training for LEOs to recognize and handle the mentally ill, more funding for facilities to get them off the street, etc, and how little has apparently been done in that regard by Democrat controlled CA Legislature, since.
One can read Judge Ishii’s decision in Silvester v Harris, to appreciate the impatience of others for California’s own abject failure to maintain its own prohibited persons database (40% error rate). And that doesnt even include mental health reporting.
I am in the middle of reading Winklers book Gunfight, The Battle Over the Right to Bear Arms in America, and I am finding it largely balanced, so far, and very helpful in background and history.
I note that he mentioned the original background check law was passed with the goal of getting mental illness reporting included, yet how many years later – that data collection process is missing in the federal database, and in the most regulated states- California, the mental illness information is largely deficient.
We see proof in CGFs win in Silvester v Harris, where CA DOJ that they needed more time to get databases connected, and despite federal judge Ishii’s order, the CA DOJ has instead appealed to the 9th.
In other words, the politicians and gun-grabber advocates justifications for the new laws, are not followed by the commitment to the data and action required, to modify the mental health identification and reporting.
Per Winkler, post Burris:
“The Second Amendment isn’t going to be abolished anytime soon, but incidents like the one involving Plaxico Burress never fail to expose the most extreme gun control zealots who will do or say anything to eliminate guns in America. Although the fanatical gun right supporters are often referred to as “gun nuts,” the gun control side can be just as unreasonable. Like gun nuts, gun grabbers approach questions about firearms with militant ideology rather than common sense. To every crisis, they have the same solution: we must do away with the guns.”
Winkler, Adam (2011-09-19). Gunfight: The Battle Over the Right to Bear Arms in America (p. 33). W. W. Norton & Company. Kindle Edition.
And another, from Winklers book:
Nelson “Pete” Shields III, one of the founders of Handgun Control, Inc.— later renamed the Brady Center to Prevent Gun Violence— argued for eliminating all handguns. “We’re going to have to take this one step at a time. . . . Our ultimate goal— total control of all guns— is going to take time.” The “final problem,” he insisted, “is to make the possession of all handguns and all handgun ammunition” for ordinary civilians “totally illegal.” Sarah Brady, who serves as chair of the Brady Center, argues that “the only reason for guns in civilian hands is for sporting purposes,” not self-defense, and supports the creation of a national gun licensing system in which only people with government approval can have a gun.
Winkler, Adam (2011-09-19). Gunfight: The Battle Over the Right to Bear Arms in America (p. 35). W. W. Norton & Company. Kindle Edition.
“The Brady law that was enacted in 1993 mandated a five-day waiting period for handgun purchases. The NRA’s idea of instant checks was also incorporated into the bill, but in a feasible way. The federal government had five years to establish a computerized national database that gun dealers could use to verify that buyers weren’t prohibited purchasers— known as the National Instant Criminal Background Check System, or NICS. The instant-check provisions applied more broadly than the waiting period, covering all firearms, not just handguns.”
Winkler, Adam (2011-09-19). Gunfight: The Battle Over the Right to Bear Arms in America (p. 71). W. W. Norton & Company. Kindle Edition.
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