Date: Fri, 30 Jun 1995 08:04:34 -0400 From: best-rkba@Mainstream.com To: Multiple recipients of list Subject: BEST-RKBA digest 234 BEST-RKBA Digest 234 Topics covered in this issue include: 1) [tm@nra.org: HR 1488] by Craig Peterson ---------------------------------------------------------------------- Topic No. 1 Date: Thu, 29 Jun 1995 23:11:03 -0400 From: Craig Peterson To: best-rkba Subject: [tm@nra.org: HR 1488] Message-ID: <199506300311.XAA13285@n1mep.mainstream.com> Date: Thu, 29 Jun 1995 20:42:31 -0400 Reply-To: tm@nra.org Originator: noban@mainstream.com Sender: noban@Mainstream.com Precedence: bulk From: tm@nra.org To: Multiple recipients of list Subject: HR 1488 Neal Atkins and several others have requested info on HR 1488 and here it fs: No back on your heads and get co-sponsors!!!!! > NRA supports H.R. 1488 and requests that everyone get his/her Congressman/woman to become a co-sponsor. H.R. 1488 FICTION AND FACT FICTION: The self-defense provision does not go far enough. FACT: This is clearly ridiculous. H.R. 1488 expands the protection for self defense in the home making it clear that there is a federal remedy for an individual who is prohibited, or persecuted for defending themself or other family members with a firearm in the home. This would buttress the right to self-defense and not limit it. Furthermore, the exercise of the right to self-defense in any situation is not dependent upon a statute because "[t]he right to defend oneself against a deadly attack is fundamental." United States v. Panter, 688 F. 2d 268, 271 (8th Cir. 1982). Section 8 of the bill protects the right to possess a shotgun, rifle, or handgun for self-defense in the home. The violation of this right by any person or government may be redressed in federal court. Furthermore, the right to self-defense is not limited to the home. Section 3, page 5, line 12, advises that the offense of possessing, brandishing, or discharging a firearm during a serious violent felony does not apply "to the conduct of a person in defense of person or property during the course of a crime committed by another person (including the arrest or attempted arrest of such other person during or immediately after the commission of the crime), unless the person engaged in or participated in criminal conduct that gave rise to the criminal conduct of such other person." FICTION: H.R. 1488 would result in double jeopardy, an expansion of federalism, and engender comity problems. FACT: Again ridiculous. There is no double jeopardy problem between sovereigns. The state government and the national government may each prosecute a person for the same conduct. Abbate v. United States, 359 U.S. 187 (1959). This principle of law was recently employed against policemen in the Rodney King case in California. Dual prosecution for the same conduct by a state government and the national government does not offend notions of federalism and comity, the Rodney King case is a recent reminder of this reality. However, it should not be overlooked that the bill specifically uses as a predicate "serious violent" felonies, recognized as such in any state, or country in the world for that matter. Obviously, a federal interest in insuring punishment of the same exists. Nevertheless, prosecution by the federal government after a state trial is a relatively rare occurrence. Federal prosecutions are normally barred as a matter of written policy if there has been a judgment of conviction or acquittal on the merits under the law of any state for the same act. This bar may only be lifted after a detailed review and authorization process. U.S. ATTORNEY'S MANUAL 9-2, 112 & 9-2, 142. FICTION: Under H.R. 1488 people would be punished for self-defense. FACT: Most cases of self-defense involve disputed facts that must be resolved by a judge or jury. This is true in both federal and state courts. However, a person has more protection in federal court because in all felony cases a grand jury must first indict the defendant. In many states, including California, a person may be charged with a death penalty offense by information and brought to trial without the necessity of first securing a grand jury indictment. In addition, for the reasons already stated, prosecution by the federal government after a state trial is a relatively rare occurrence. FICTION: H.R. 1488 would federalize every state crime and its terms are ambiguous. FACT: Under present law, a federal "crime of violence or drug trafficking crime" is subject to an enhanced penalty if a firearm is used or carried during the commission of that offense. Section 3 of the bill continues to cover a federal "crime of violence or drug trafficking crime." The bill adopts an enhanced penalty scale depending upon whether the firearm is possessed, brandished, or discharged. State crimes would also be included under the bill. However, the state crime must be a "serious violent felony or serious drug offense." Serious violent felonies are defined to include such felonies as murder, kidnapping, and rape. Hence, every state crime is not federalized. Terms such as "crime of violence" and "serious violent felony" are unambiguous. No court has found those terms to be unconstitutionally vague. The recent decision by the U.S. Supreme Court in United States v. Lopez, 1995 LEXIS 3039 (U.S. Sup. Ct. 1995), recognizes that there are limits to the sweep of the commerce clause. However, Lopez does not sweep away federal jurisdiction over criminal offenses that are also made a crime by the state. Should any crime run afoul of the Lopez ruling, it would simply be severed from the statute. The remainder of the statute would remain in force. FICTION: H.R. 1488's armed criminal apprehension program will serve as an impetus to prosecute even technical paperwork violations. FACT: The bill uses language of common understanding: "armed violent criminal." It also references sections of the Gun Control Act that deal with committing crimes while armed and possession of guns by persons in a traditional high risk class (convicted felons). Technical paperwork violations are not covered. Federal prosecutors follow the party line of the Department of Justice and call for more gun control, but have a dismal record of prosecuting violent armed criminals. A recurrent theme in the ongoing debate on the necessity of imposing additional gun controls is the lack of adequate secution of existing statues. In fact, the Clinton Administration has an abysmal record of failing to prosecute federal weapons violations -- down a staggering 23% in his first two years in office. The required reports by federal prosecutors will serve as a way of monitoring the prosecution of violent armed criminals, and serve to highlight the real problems with our current criminal justice system. Finally, the reporting provision sunsets after a period of five years. --------------------------------------------------------------------------- Name: Tanya Metaksa E-mail: tm@nra.org (Tanya Metaksa) Write your Congressman to co-sponsor HR 1488, the repeal of the Clinton gun ban. You can tell the staff to call Congressman Bob Barr's office to sign on. Congressional phone # 202-225-3121. 06/29/95 --------------------------------------------------------------------------- ------------------------------ End of BEST-RKBA Digest 234 ***************************