Thursday, January 17, 2013

The Right Lane 1.17.13



The pursuit of Constitutionally grounded governance, free markets and individual liberty

"There is but one straight course, and that is to seek truth and pursue it steadily." --George Washington

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What is Criminal Law and What does it have to do with guns?

Criminal Law is a fairly well-known area of law. Although its other nomenclature, penal law, is less familiar. Most people have a pretty good idea of what criminal law is; it covers crimes, prosecution and defense. This is as good a definition as any. However, more specifically, it encompasses the rules and statutes written by Congress and state legislators dealing with any criminal activity that causes harm to the general public, with penalties. It also includes decisions by appellate courts that define and interpret criminal law and regulate criminal procedure, in the absence of clear legislated rules. As such, it covers a very broad range of topics and issues.

Criminal law envelops the criminal procedure employed when charging, trying, sentencing and imprisoning defendants convicted of crimes, as well as regulation concerning how suspects are investigated, charged and tried. Criminal law is typically enforced by the government. The state, through a prosecutor, initiates the suit. Criminal Defense law covers the legal area of defending against a criminal charge. Some subcategories of criminal law include Substantive Criminal law; Criminal Procedure; and the special problems and issues arising in administration and enforcement of criminal justice.

Substantive Criminal law deals with the “substance” of the law. It identifies what the crimes are, their classifications (i.e. petty crime, misdemeanor, felony) and how they should be charged, as well as their possible penalties. Which courts have jurisdiction over what cases and who will be responsible for prosecuting them is determined by criminal statutes.

Criminal Procedure picks up where substantive criminal law leaves off. It deals with the enforcement of these laws. Most notably, it addresses how an individual accused of a crime may be handled, dealt with and prosecuted, especially with regard to the individual’s constitutional rights. It also covers rules of evidence, witnesses, investigations and the like. When someone demands their due process, evokes his right to silence, to a speedy trial or to legal representation, this is part of the process of criminal procedure.

As you read above, where the Constitution through the second amendment allows gun ownership, it is possible that certain actions with a gun could lead to a violation of law.  However, the simple act of legally owning a gun does not in itself invoke Substantive Criminal Law or need for Criminal Procedures.  Here-in-lies the delusion of those wanting Federally Mandated Gun Control.  Attempting to "criminalize" a Constitutional Right is unconstitutional on its face.  A gun cannot commit a crime, a person can.  The mere ownership of a gun cannot "predict" a crime will be committed. 

Take the most serious matter one can consider "murder".  A person willfully taking another life is clearly a crime.  However, having such a criminal statute on the books at the Federal and State level is not preventative.  The discourse from the left behaves as if a "law" will prevent crimes.  Most recently, one such as the Sandy Hook massacre.  Such laws have not and never will prevent such crimes.  The answer as to why is simple.  Laws have never been able to control behavior.  Crimes such as "murder" are crimes of behavior (passion) where one person behaves in such a way (violent) that another person dies.  We can (and have in many cases) passed laws dealing with unwanted behavior.  However, they still persist and in some cases are worse than ever.  Many of this type of legislation comes from both the right and the left.  It depends on which one decides a particular behavior is "bad" and must be controlled.  Murder for whatever reason by the perpetrator is still murder.  Attempting to declare one type of murder as more or less "worse" than another is delusional at best.  A life had been taken by another, period.

So, what does all of this have to do with guns?  Guns are no different than banning "things" because they are deemed not good for society (think drugs).  However, as everyone knows and few want to admit, laws criminalizing such has not stopped harm to society. Yet there are many facts that can be examined that would say things are decidedly worse.  So, here we are with two groups yelling at each other, demonizing each other and presenting "information" or "data" to support their point of view.  However, those of us still able to perform critical thinking, must tear ourselves away and choose not to participate in this insanity.

So, what are our options?  Unfortunately there are few.  We can both physically restrain or control people with known violent behavior and learn how to protect ourselves in the event we must.  That may mean meeting violence with force.  Which is not preferable to most people.  However, we cannot expect anyone (especially the government through laws) to protect us.  Have we lost our survival instincts and abilities?  Our behavior would suggest yes.  Can we depend upon others in a moment of immediate crisis.  Unfortunately, no.  A quick look at history will demonstrate that fact.  We watch and read about "heroes" every day.  These are normal people that when the need presented itself they relied on their survival instincts and abilities.  In many cases, killing (yes I said the word) the bad guy to save lives.  That, my friend, is honorable behavior.  It is regrettable that one had to do it (ask any of them) but the right thing to do no less.
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President Barack Obama's Blatant Political Demagogy Using Children as A Prop!
Yesterday, Barack Obama’s announcements on his gun control measures amounted to a declaration of war against law abiding American citizens who value the US Constitution and the Bill of Rights. Surrounded by several children, Obama announced that he was asking Congress to curb gun violence.  Part of his plan involved the closing of all loopholes in background checks to make them universal.  And to no one’s surprise, he wants a complete ban on military assault-style weapons and high-capacity magazines. In his diatribe against guns, Obama said:
This is our first task as a society—keeping our children safe. This is how we will be judged. And their voices should compel us to change.  I will put everything I’ve got into this…but the only way we can change is if the American people demand it. To make a real and lasting difference, Congress must act, and Congress must act soon.”
The then vowed to take whatever action his office can take to insure that his gun control measures are put into place.  He has also promised $500 million (which we don’t have) to make it all happen.  We have hundreds of small children die every day from all sorts of violence and brutality across the country.  Why the sudden attack on gun ownership only?  Don't be fooled!  He is an opportunist politician, using the emotions of the Republic to push an agenda.  Think no further than that.  Don't be fooled.
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Obama Wants Doctors Interrogating Patients About Guns
A week ago, Breitbart had reported that Obamacare actually prohibited the Department of Health and Human Services from collecting information on gun owners. Awr Hawkins wrote:
“It seems that in their haste to cram socialized medicine down the throats of the American people, then-Speaker Nancy Pelosi (D-CA) and Barack Obama overlooked Senate amendment 3276, Sec. 2716, part c. According to reports, that amendment says the government cannot use doctors to collect ‘any information relating to the lawful ownership or possession of a firearm or ammunition.’”
Obama has now clarified with his recent executive actions that Obamacare does not actually prohibit doctors from interrogating their patients about guns. In fact, the Obama administration is encouraging doctors to do just that. Here’s the relevant passage taken from the Weekly Standard:
Preserve the rights of health care providers to protect their patients and communities from gun violence: We should never ask doctors and other health care providers to turn a blind eye to the risks posed by guns in the wrong hands.
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The List: President Obama’s 23 Gun-Control Measures by The Tatler
Today, the president is announcing that he and the administration will:
1. Issue a Presidential Memorandum to require federal agencies to make relevant data available to the federal background check system.
2. Address unnecessary legal barriers, particularly relating to the Health Insurance Portability and Accountability Act, that may prevent states from making information available to the background check system.
3. Improve incentives for states to share information with the background check system.
4. Direct the Attorney General to review categories of individuals prohibited from having a gun to make sure dangerous people are not slipping through the cracks.
5. Propose rulemaking to give law enforcement the ability to run a full background check on an individual before returning a seized gun.
6. Publish a letter from ATF to federally licensed gun dealers providing guidance on how to run background checks for private sellers.
7. Launch a national safe and responsible gun ownership campaign.
8. Review safety standards for gun locks and gun safes (Consumer Product Safety Commission).
9. Issue a Presidential Memorandum to require federal law enforcement to trace guns recovered in criminal investigations.
10. Release a DOJ report analyzing information on lost and stolen guns and make it widely available to law enforcement.
11. Nominate an ATF director.
12. Provide law enforcement, first responders, and school officials with proper training for active shooter situations.
13. Maximize enforcement efforts to prevent gun violence and prosecute gun crime.
14. Issue a Presidential Memorandum directing the Centers for Disease Control to research the causes and prevention of gun violence.
15. Direct the Attorney General to issue a report on the availability and most effective use of new gun safety technologies and challenge the private sector to developinnovative technologies.
16. Clarify that the Affordable Care Act does not prohibit doctors asking their patients about guns in their homes.
17. Release a letter to health care providers clarifying that no federal law prohibits them from reporting threats of violence to law enforcement authorities.
19. Provide incentives for schools to hire school resource officers. Develop model emergency response plans for schools, houses of worship and institutions of higher education.
20. Release a letter to state health officials clarifying the scope of mental health services that Medicaid plans must cover.
21. Finalize regulations clarifying essential health benefits and parity requirements within ACA exchanges.
22. Commit to finalizing mental health parity regulations.
23. Launch a national dialogue led by Secretaries Sebelius and Duncan on mental health.

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