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>From the New Paradigms Project [Not Necessarily Endorsed]:

From: Weldon Clark <[EMAIL PROTECTED]>
To: <[EMAIL PROTECTED]>
Subject: The Traps in NRA's Project Exile
Date: Friday, June 09, 2000 11:55 PM

The Traps in NRA's Project Exile

Editor's Note by Weldon Clark – This is a short report by Neal
Knox about Attorney and NRA Board member David Caplan,
a long article by Karen MacNutt and another short report by
Neal Knox on a US Supreme Court decision.  NRA's policy of
backing laws like project exile can backfire on you.  If you
value your freedom please read all of this post.
**************************
By Neal Knox - As expected, the NRA Board of Directors
reelected Charlton Heston as President Monday, and
continued other officers in their present positions.

New directors were introduced and sworn in, and with little
other fanfare, the meeting ended in one day, with a minimum
of discussion of NRA's business -- leaving it in the hands of
the staff.

By adjournment, many of the new directors, including 76th
Director Louise Mandrell, were already gone.  In fact, she
was out of there by lunch.

There were only two questions that disrupted the unanimity of
thought -- which was so pervasive that a reporter asked me
about it.

Newly reelected David Caplan asked if NRA desired a future
Bernard Goetz to be prosecuted under Federal law for
lawfully defending himself on a New York subway with an
unlawfully possessed firearm.  The question was quickly
shunted aside; I don't know if it was discussed in secret
during a long executive session.

One topic in the secret session was the renaming of The
American Guardian to "America's First Freedom" and the
total overhaul of the content of the NRA's popular new half-
million circulation magazine without any discussion by the
Board or Publications Committee (which had created it after
great debate).

I know several directors didn't think it was a smart move --
and some thought it was a slap in the face of the "Board of
Decorations" to not ask, or even advise, the board during the
January meeting (when the change was all but complete).

At the conclusion of the executive session 1st V.P. Kayne
Robinson announced the board had ratified "the action of the
Executive Committee" in "changing the name."
*****************************
Legally Speaking Be Careful What You Ask For When
Advocating Enforcement by Karen L. MacNutt

My client looked distinctly uncomfortable. He was, after all,
the vice president of a local bank, deacon of his church, and,
to all his neighbors, a model citizen." So," I asked, "How can I
help you?"

"It was so long ago," he began, "I don't want my children or
grandchildren to know."

"Why don't you tell me about it," I prompted. His eyes would
not meet mine.

"The ATF came to my house this morning. It was so
embarrassing. Not even my wife knew." He paused.

"What did they want?"

"They said I was a felon and I had bought a gun and if I did
not surrender all the guns in the house to them right away
they would arrest me on the spot. They took my guns.  They
took my wife's guns. They even took my son's gun. They said
that if there were any guns in the house, they would arrest
me as a felon in possession of guns. They said they were
going to turn the case over to the US Attorney to see if they
were going to prosecute."

"How did you come to their attention?"

"I wanted to buy a shotgun for my son's 25th birthday. When I
filled out the 'instant check' stuff, the man in the gun store
said I would have to wait. I went back a couple of weeks later
and since nothing had come back saying I was disqualified,
they let me buy the gun. Now the ATF is saying I lied on the
form and I have a felony record."

"Do you?" I asked.

"Well," my client said, "I didn't think so. I've only been in
trouble once and it was just stupid stuff while I was in
college." He paused. "It was during one of those student
demonstrations in the late '60s. We were protesting
something. Well, this is really stupid. . .I mooned the dean
and they charged me with indecent exposure." He let out a
big sigh.

"The judge said if I didn't do it again there would be no
problem and I would not be disqualified from anything. We all
thought it was a big joke at the time. I didn't even have a
lawyer. I think I had to pay $25 or something. I've owned
guns for years. I've had a pistol permit for over 20 years and
this is the first time I've ever had a problem. It was so long
ago. Can they still hold it against me?"

The short answer was, "yes." They can hold an old conviction
against you.

Gun rights activists often propose toughening the criminal
laws as an alternative to more gun laws. They should be
careful of what they ask for. Some of the repressive laws they
are suggesting will be used against them in ways they never
dreamed of.

For example, most people think felons should be barred from
possessing guns forever. Most people think that "felons" are
desperate or violent people. That is not always the case.
Felonies are not always violent. Some laws are drafted so
broadly that widely different behavior is made illegal.

Lewd behavior is a felony in some states. Lewd behavior can
run all the way from relieving yourself in an inappropriate
place, to social protest, to sun bathing, to the acts of a really
perverted mind. Pornography can be totally disgusting and is
a felony in many places.

On the other hand what is pornographic changes. The term
has been applied to classical art such as all those naked
Greek statues. It has also been applied to parents who took
naked pictures of their children as babies in typical baby
behavior.

In many states gambling is a felony. Getting a woman with
child (even if you marry her later) can be a felony. Procuring
an abortion used to be a felony. Even though the act is no
longer criminal, if you did it when it was illegal and were
convicted, you would be a felon.

Cheating on your income tax or filling out a host of
government forms incorrectly can be a felony. Then there are
those heinous crimes such as donating too much money to a
political campaign, allowing an endangered species to
commit suicide against your windshield, filling in that swampy
(wetlands) part of your backyard and certain types of illegal
dumping. Many of these laws do not require intent. The fact
you were unaware you were violating the law is not a
defense.

Some people violate the law by accident or stupidity, other
people are truly evil and vile. Putting people in jail without
regard to the circumstances of their offense is not just. Our
laws must be able to distinguish among these groups. As our
firearms laws become more complex, more people find
themselves in violation of those laws unintentionally. We
must keep law enforcement local and we must allow the
courts some flexibility.

With the exception of some computer crimes, just about any
anti-social activity that should be criminal, is already criminal.
Stacking charges or creating overlapping federal and state
jurisdiction allows for multiple prosecutions for the same
crime. We should not promote a system that allows the state
to zero in on someone and then keep dragging that person
before different courts until it gets a conviction. Such
convictions are not based on the guilt or innocence of the
person charged. They are based upon the accused's
financial and emotional weakness.

When the NRA proposed the "instant check" as an alternative
to a waiting period, sportsmen believed they were making a
good faith compromise. The "instant check," however,
created the framework, not just for national gun registration,
but for a national tracking system of all citizens. Made
possible by computers, the federal government is compiling
massive amounts of information about all of us. Not all of that
information is correct.

Each state has different laws and standards. There is no
uniform labeling of crimes or characterization of offenses as
misdemeanors or felonies. In many states, the older criminal
records are not in good order.

When I started practice, all records were kept by hand locally.
Different courts kept their records in slightly different ways.
There were differences in the way judges handled cases.
Many states have methods which allow the judge to impose
court supervision without giving the accused a criminal
record. Terms such as "pre-trial diversion," "pre-trial
probation," "continuance without a finding," "placing on file,"
"conditional dismissal," and "suspended finding," describe
dispositions which do not result in giving the accused a
criminal record. Because judges believed nothing other than
a fine would result from such dispositions, they were quick to
impose them without much thought to the guilt or innocence
of the accused.

In some areas, records of closed cases have been destroyed
leaving only cryptic entries describing the charges but not the
disposition of the case. When the NICS check is conducted, it
frequently turns up these partial records. To make matters
worse, the "instant check" also looks at the NCIC records of
arrests. If no follow up entry was made in that data base
indicating what happened after the arrest, the government
tends to treat the reported arrest as if it were a conviction.
The citizen is then forced to prove he was not convicted.
There is no time limit on convictions, so that a check could
turn up a record 60 years old. Tracking down older public
records can be very difficult.

If that were not bad enough, many states have similar
sounding crimes, some of which are felonies and some are
not. It can get a little confusing. For example, if someone
were charged with larceny, we would have to know whether it
was larceny "over" or "under" to determine if it was a felony.
If the item stolen exceeded a certain value, it is larceny "over"
and a felony. The problem is that the value of the item taken
to create the felony of larceny "over" is not constant from
state to state. The theft of a hubcap in one state could be a
felony, while the exact same act in another state is not. Even
within a state, the laws change. Penalties have crept up. If
you were convicted of drunk driving in Massachusetts in
1993, you are not disqualified from having a gun. If you were
convicted of the same crime in 1994 you are disqualified.

A criminal conviction remains forever unless you are
pardoned, have the record expunged or you live in a state
that automatically expunges a record on the passage of time.
Most states do not automatically expunge records. Some
states seal records after a period of time. The sealing of a
record does not remove the conviction, it simply hides it from
the general public. If you have a sealed record, you should
consult with your attorney before answering any
governmental questionnaire that asks about convictions.

In my client's case, if he had a conviction, even though it was
over 35 years ago, it was still a conviction. The attitude some
people take of, "If you don't see it, it can't hurt you," is
dangerous. With improvements in data entry and computers,
you cannot assume that old records will not be found.

This brings us back to my client. Our first problem was to
determine what had happened in the original court
proceeding. That was difficult, because most of the original
records had been destroyed. There were two possible crimes
he could have been charged with. One was a misdemeanor,
the other was a felony. Both had similar sounding names
such as "open and gross lewdness" or "lewd behavior." It
was impossible to tell from the records which offense he had
been convicted of. It was also impossible to tell from the
record whether he had been convicted or his case had been
continued and dismissed. The normal disposition of this type
of case would have been a continuation and dismissal. On
the other hand the mooned college official may have
demanded a higher price for the affront to his dignity.

The "instant check" people assumed the worst, even though
the records were ambiguous. In the end, we petitioned the
court to reopen a 35-year-old case to correct and complete a
record that had been destroyed.

My client was one of a growing number of people who have
become entangled in a complex web of laws based on old
and incomplete information. Prior to computers, this
information was happily inaccessible. That is no longer the
case. Not only have faulty records caused trouble for some
people, but court interpretations of the Firearms Owners
Protection Act have opened the door to serious problems.

At one time, the federal government refused to recognize
state pardons of people with felony convictions and further
refused to recognize the state classification of a crime as a
misdemeanor if the potential penalty was greater than two
years. This led to problems with people who committed state
crimes, which were misdemeanors under state law but are
treated as felonies under federal law.

This also caused problems for people who received pardons
or who had their right to own firearms restored under state
law. Such people acquired guns in good faith, believing they
were in compliance with the law only to be prosecuted by the
federal government as felons in possession of firearms. To
help these people the Firearms Owners Protection Act
amended federal law to provide that, "Any conviction which
has been expunged, or set aside or for which a person has
been pardoned or has had civil rights restored shall not be
considered a conviction under this chapter, unless such
pardon, expungement, or restoration of civil rights expressly
provides that the person may not ship, transport, possess, or
receive firearms."

This provision has been interpreted by a number of federal
district and circuit courts in different ways. One line of thought
was that a restoration of rights had to be full. If any limitation
was placed on firearms ownership, this section did not apply.
The other line of thought was that the rights were restored or
limited under federal law to the same extent they were
restored or limited under state law.

For example, in Massachusetts, it used to be that five years
after a conviction for a felony a person's right to own rifles,
shotguns, and handguns was restored but their right to carry
handguns outside their home was not.  There were also a
number of pardons given out to restore limited firearms rights
such as the right to have a firearm for hunting, or the right to
have just rifles and shotguns.

In 1998, the United States Supreme Court ruled in Caron v.
United States, 118 S.Ct. 2007, that if there were any
limitations on firearms ownership remaining after a
restoration of rights, that the federal law prohibited such
person from possessing any firearms. That is, even if the
state specifically said the person could have certain firearms,
the federal law would not recognize that.

This has resulted in prosecution or threats of prosecution of
scores of firearm owners who thought they were in
compliance with the law. Even people who resided in those
areas where the courts had previously recognized a partial
restoration of firearms rights were held to be subject to
prosecution. That is, people who acquired firearms in good
faith and in reliance on the ruling of their federal circuit court
are now held to be in violation of the law.

The ruling of the Supreme Court is contrary to the plain
meaning and expectations created by the statute. It recreates
the very ambiguity in the law that the 1986 Firearms Owners
Protection Act was intended to correct. It once again raises
the prospects of people being prosecuted under federal law
for being a felon in possession of firearms as a result of a
violation of state law, even though the state has forgiven the
offense and removed the disability.

As the "instant check" involves more and more Americans,
some people have been shocked to find that they have
criminal records due to some stupid transgression they fairly
believed to have been dismissed. Others who believed
themselves to have been pardoned and specifically forgiven
for an offense are suddenly finding that they are subject to
prosecution as a felon in possession of firearms.

When the government proclaims that thousands of felons
have been prevented from buying firearms, I wonder how
many of them are people who legitimately thought their rights
had been restored or who are victims of poor record
keeping?

Before we demand that all those who failed the background
check be prosecuted, we should first ask, "How accurate is
the data base the refusal was based upon?" We should then
ask, "What are the circumstances?"

In many instances, I believe fair-minded people would come
to the conclusion that the people involved should not be
prosecuted.

Published in Gun Week
Gun Week
PO Box 488
Buffalo, NY 14209
Subscription rates $20 18 issues ½ year
$35 per year
$45 per year foreign

********************************************
By Neal Knox  The most important Washington news this
week was the Supreme Court's 9-0 rejection of the added-on
gun sentences for the Branch Davidians convicted of
involuntary manslaughter in the BATF raid.

Not only does that jerk up short Federal Judge Walter Smith's
demonstrated anti-Davidian rulings -- two weeks before the
Davidians' wrongful death lawsuit against the government – it
requires juries to determine whether guns have been "used"
in crimes before enhanced penalties could be imposed.

That's good.  The way some enhanced penalty laws have
been written, someone could receive a five-year prison
sentence for having a gun in his closet while completing an
erroneous income tax return -- since that could be
commission of a felony while "in possession" of a firearm.

It's nice to know that the Supremes don't like the idea of 100
percent enforcement of all gun laws.  Now if Wayne LaPierre
would just get that message.....
Neal

************************************************************
What To Do If The Police Come To Confiscate Your Militia
Weapons see  www.2ndamendment.net
For legislative updates contact www.nealknox.com and go to
"Scripts from the Firearms Coalition Legislative Update Line"
***************************************************
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