Tuesday, December 8, 2009

Chicago criminal lawyer says maybe the government can't take your guns away

This Chicago criminal lawyer has a great deal of respect for the 2nd Amendment of the U.S. Constitution. Now comes a decision from the 7th Circuit that seems to respect the 2nd Amendment as well.

There's been a lot of talk about the right to bear arms is what the 2nd Amendment stands for but here's what the 2nd Amendment actually says:

Amendment II

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Well, when read in its entirety it is probably understandable why there has been a great deal of litigation on this Amendment, including right here in Chicago with the U.S. Supreme Court set to issue an opinion in McDonald v. City of Chicago.

In the 7th Circuit Opinion U.S. v. Miller, the court ruled that if the government was going to take guns and forfeiture was not available, then you can't destroy the guns (they are property you know) without paying the owner of the guns, even if he is a convicted felon.

Dist. Ct. erred in directing govt. to destroy guns belonging to defendant, who had been convicted of aiding and abetting possession of firearms by third-party where govt. had missed deadline for seeking forfeiture of said firearms. Appropriate disposition would be to require govt. to sell weapons and then tender proceeds of sale to defendant, although, on remand, govt. may also choose to either gift firearms to third-party designated by defendant, transfer firearms to trustee or store weapons until defendant's firearms disability expires.
You can read the court's opinion in it's entirety here. Don't worry it isn't long and the court outlines an array of other options that the government had to deal with the defendant's guns instead of destroying them.

Many will think this decision is a score for the 2nd Amendment, but I don't read this opinion that way. It just seems to be a simple compensation for property taken from the defendant. You have to love democracy because it's a score for the individual citizen, in this case defendant Miller, and a tax on the rest of us so that the government can pay him back for the destruction of his property.

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