HomeLatest ThreadsGreatest ThreadsForums & GroupsMy SubscriptionsMy Posts
DU Home » Latest Threads » Forums & Groups » Main » Latest Breaking News (Forum) » It's not illegal to be dr... » Reply #39
Introducing Discussionist: A new forum by the creators of DU

Response to happyslug (Reply #36)

Thu Jan 31, 2013, 04:41 PM

39. Basically the Prosecution sucked.

" While preventing intoxicated individuals from committing crimes involving handguns is an important government objective, the infringement on defendantís right in the instant case was not substantially related to that objective. We initially note that, at the time of the officersí entry into the home, and at the time they were actually able to establish the level of defendantís intoxication, defendantís possession was constructive rather than actual. Thus, to allow application of this statute to defendant under these circumstances, we would in essence be forcing a person to choose between possessing a firearm in his home and consuming alcohol. But to force such a choice is unreasonable. As the facts illustrate, there was no sign of unlawful behavior or any perceived threat that a crime involving a handgun would be committed. We note that the Legislature, in crafting the concealed pistol license statute, recognized both the concern with an intoxicated person carrying a firearm and that it is unnecessary to prohibit an intoxicated person from merely being in the vicinity of a firearm. Under MCL 28.425k(2), it is an offense for a person to carry a concealed pistol while under the influence of alcohol.4 But MCL 28.425k(3) provides for the intoxicated person to have the pistol secured in a vehicle in which the person is an occupant without violating the provisions of subsection 2. In other words, the governmentís legitimate concern is not that a person who has consumed alcohol is in the vicinity of a firearm, but that he actually has it in his physical possession.
In conclusion, the government cannot justify infringing on defendantís Second Amendment right to possess a handgun in his home simply because defendant was intoxicated in the general vicinity of the firearm. Accordingly, the district court did not err in finding that MCL 750.237, as applied to defendant, was unconstitutional. "

This, along with the court finding:

"The officers approached the house and spoke with defendantís mother-in-law at the door. The mother-in-law stated that defendant no longer had a gun and that she had taken it and hidden it in the house. She let the officers in, showed them the gun which she had hidden in the bottom of a garbage can in the laundry room with the clip found next to the gun. Officer Shea indicated that he wished to speak with defendant and was informed that defendant was upstairs. "


"The district court concluded that, while there was evidence that defendant was intoxicated based upon a blood alcohol test, no evidence was introduced to show that defendant was in actual physical possession of the gun."


It appears that the prosecution did not enter the Mother-in-law's testimony that he HAD the gun in his hand at some point prior to the call, OR, the prosecution could not establish that he was drunk at that time.

Given the findings of the court, I maintain it is not legal to have a gun on your person, even in your own home, while intoxicated. (but it may be legal for the firearm to be IN the house, just not on your person)

Reply to this post

Back to OP Alert abuse Link to post in-thread

Always highlight: 10 newest replies | Replies posted after I mark a forum
Replies to this discussion thread
Arrow 41 replies Author Time Post
michigandem58 Jan 2013 OP
Socal31 Jan 2013 #1
randome Jan 2013 #2
Socal31 Jan 2013 #4
randome Jan 2013 #8
0rganism Jan 2013 #14
Socal31 Jan 2013 #16
0rganism Jan 2013 #17
dballance Jan 2013 #28
AtheistCrusader Jan 2013 #11
Socal31 Jan 2013 #12
AtheistCrusader Jan 2013 #18
Socal31 Jan 2013 #20
AtheistCrusader Jan 2013 #22
Socal31 Jan 2013 #27
AtheistCrusader Jan 2013 #30
Peregrine Jan 2013 #3
FiveGoodMen Jan 2013 #6
onpatrol98 Jan 2013 #23
bemildred Jan 2013 #5
qazplm Jan 2013 #7
Redford Jan 2013 #9
MNBrewer Jan 2013 #10
Thor_MN Jan 2013 #13
awoke_in_2003 Jan 2013 #21
onpatrol98 Jan 2013 #24
snooper2 Jan 2013 #25
AtheistCrusader Jan 2013 #19
dballance Jan 2013 #29
AtheistCrusader Jan 2013 #31
dballance Jan 2013 #32
AtheistCrusader Jan 2013 #33
Gman Jan 2013 #15
kestrel91316 Jan 2013 #26
AtheistCrusader Jan 2013 #34
lynne Jan 2013 #35
primavera Jan 2013 #37
AtheistCrusader Jan 2013 #38
happyslug Jan 2013 #36
LineLineNew Reply Basically the Prosecution sucked.
AtheistCrusader Jan 2013 #39
happyslug Jan 2013 #40
AtheistCrusader Jan 2013 #41
Please login to view edit histories.