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Rethinking the 5th Circuit

Gun owners tend to think favorably of the 5th Circuit, because it’s the circuit that Emerson came out of, but they’ve been on a roll lately with unfavorable decisions. This latest one they argue that the right to bear arms only covers arms in general, and not one specific firearm. What? So let me get this straight, the police can come into my house, take all my firearms, not charge me with anything, and that’s not a violation of my rights because I can always go buy new ones?

The right protected by the Second Amendment is not a property-like right to a specific firearm, but rather a right to keep and bear arms for self-defense.

I’d be curious to know what the case law is on something like this in a First Amendment context. Can the police seize a printing press from a newspaper, fail to file any charges, and keep the press? Would this create a viable First Amendment complaint?

Very interesting is that Judge Jennifer Walker Elrod, the dissenting judge in this case, brings up, once again, Judge Kavanaugh’s dissent in the Heller II case in the D.C. Circuit. I may have more to say about this later. But I think Judge Kavanaugh was on to something when he penned that dissent.

11 Responses to “Rethinking the 5th Circuit”

  1. Unfortunately, there is a long and ugly history involving civil forfeiture of cash, vehicles, and even real estate.

    • terraformer says:

      Exactly, this ruling is more indicative of the circuits position on seizure and not the 2A. It’s an absurd position and one not shared by the 1st or 2nd circuits, but it’s not likely indicative of the circuits position on 2A issues.

  2. Actually I find the use of websites an even better example for the 1st Amendment comparison.

    Under this circuit’s logic they can constantly seize domains without charge because I can just go buy a new one. Never mind the fact the loss in costs and inconvenience. Not to mention the fact that if I have used the domain for a long period of time it has become a valuable piece of internet real estate.

    The whole thing is BS. If you are not charged with a crime your property should be returned. There has not been a follow through of due process without a trial. It’s that simple.

  3. Chris Byrne says:

    I’m just kinda confused where it says that guns are not property or articles as covered by the fourth and fifth amendment; never mind the 2nd amendment.

    • Alpheus says:

      Don’t be confused: apparently it’s “Constitutional” to confiscate property “associated” with drugs, and if it’s confiscated for this reason, it’s up to you to prove that they weren’t used for illegal drugs. “Guilty until proven innocent” only applies to people! (This is the Common Law principle called “deodand”–an object can be guilty if it “does” the wrong thing.)

      This doesn’t just apply to guns: cars, homes, and anything else, really, can be confiscated by this manner. A former owner of your car or a tenant in your duplex used drugs? Bummer, you should have done more to keep them from using drugs!

      Never mind that objects have no say in this matter; never mind, either, that we cannot control what anyone does before we own something, or that tenants have privacy rights even from the landlord (and rightly so). We’re in a war, darnit! You must sacrifice for the greater good!

      This is one major reason I’m against the War on Drugs; SWAT teams is another major one. I agree with Tam, too: keep drugs illegal if you must, just stop infringing on our rights!

  4. Rydak says:

    http://www.youtube.com/watch?feature=endscreen&NR=1&v=84ptFVq22PY

    Not the exact topic for this, but I just found this one. Been out for a year, never seen it before today. So funny, yet so true.

  5. Dirk Diggler says:

    actually, what is scarier is Garza is part of the majority. He is a darling of the far far right and has been on the shortlist for a SC position.

  6. Chas says:

    So, the right to keep and bear arms is reduced to a meaningless abstraction, without practical significance? A man’s arms may be seized and not returned to him, but he still has his right to keep and bear arms? He can keep his arms, but he can’t have them? I’m not feeling any respect for my rights in that.
    What kind of fools do they take us for?

  7. kfg says:

    He is perfectly correct in his premise. His conclusion, however, has been run through the Bizzaro transmogrifier.

    As one who is often inclined to bear arms other than fire I am particularly sensitive to this issue. Think I’m a deadly disturber of the peace with my small sword and sling shot? Fine, I’ll carry a shotgun. Feel “safer” now, Sparky?

    The world has gone insane.

  8. Zermoid says:

    How can they be able to confiscate arms when you have a RIGHT to KEEP them? That just don’t make any sense to me, if a crime was committed sure, but a law abiding person can have their guns taken and not returned for no legitimate reason?

    Where are we living? Nazi Germany? (that was a rhetorical question I guess)

    • SDN says:

      Yep, under asset forfeiture laws your property is yours only until some bureaucrat can manufacture a reason to steal it.

      The last time we had such a regime in widespread use was the witchcraft era in Europe. Countries under English common law did not follow this practice because of English common laws’ regard for private property, and the results were instructive. As documented in Robbins’ Encyclopedia of Witchcraft and Demonology, a comparison of countries which allowed asset forfeiture with Anglospheric countries which did not shows persecution rates 1,000 times greater.

      This was not due to a lack of belief; King James was awarded the title “Defender of the Faith” NOT for his sponsorship of the King James Bible but for a treatise he authored on the Scriptural basis for persecution of witchcraft and effective methods for doing it. The English common law was not something even a king could touch.

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