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Wed Apr 25, 2018, 12:21 PM

Why did they give the guns back to the shooter's father?

Illinois lawmakers are trying to close a loophole that allows guns to be given back to the families of people who lose their licenses. IOW, "Here, we took this from your son and we're giving it back to you."

The question is WHY? If the gun is confiscated, why give it back to a member of the family (or to anyone else, for that matter)?

Did I miss something here?

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Response to grumpyduck (Original post)

Wed Apr 25, 2018, 12:31 PM

1. Well you can't have the innocent gun

sitting in captivity. Due process for the 2nd Amendment. Habeas sclopetum.

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Response to grumpyduck (Original post)

Wed Apr 25, 2018, 12:31 PM

2. Don't know the specifics state-by-state

but the general principle of confiscating guns from dangerous people is deeply undermined if the authorities turn around and give said guns to someone the dangerous person knows.

I understand that permanent property confiscation by the state in the absence of criminality is legally/constitutionally problematic, but it can't be that hard to come up with a system that will pass muster. I guess there isn't, or hasn't been, the political will to create a more stringent system.

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Response to grumpyduck (Original post)

Wed Apr 25, 2018, 12:39 PM

3. Its about property rights

 

Essentially since it wasnít a crime committed with the firearms they canít just seize the guns.

Itís like a repeat DUI offender. If you catch them driving again you can sieze the car they are driving. But you canít go sieze all the other cars they own.

In the case of a person who is in legal possession of firearms and then their legal ability to own them changes, either temporarily or permanently, they have to be allowed a chance to legally dispose of them. Be it a sale, gift to another lawful owner, etc.

Itís a Constitutional issue going to the takings clause of the 5th Amendment.

So they had to release them to a lawful possessor if he wanted them too.

Now if he later came into possession of them again, then they would have been acquired and possed illegally and therefore an be siezed and disposed of as they were used in a crime. But they canít create the crime by changing his legal status and then immediately claim possession was criminal without notification of his status change and a chance to legally dispose of them.

I dealt with this a lot as a deputy working domestic violence cases. We would serve a temporary restraining order and then give the person options for dealing with firearms they had in their possession- have a legal possessor come get them, let us follow you to a store to sell them, or we take possession until you do one of those or the retraining order is lifted.

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Response to Lee-Lee (Reply #3)

Wed Apr 25, 2018, 12:49 PM

4. You are completely wrong about the 5th Amendment. The "taking clause" only applies to property

 

(real estate or otherwise) that is taken for public use. If they took the guns to giver to the military in a dire situation, 5th Amendment applies. If they take the guns because of a ban or for safety of others, it only applies in the minds of NRA gun-fanatics.

The police could have kept the guns, but they chose not to.

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Response to Hoyt (Reply #4)

Wed Apr 25, 2018, 01:05 PM

7. Your wrong

 

The police could not take the guns and destroy them or otherwise dispose of them absent them being used in a crime.

I did this stuff for a living, and had what I did scrutinized by lots of lawyers and the courts every time. I have a bit of experience here. Thatís why even in a state with some of the most restrictive gun laws in the country they didnít sieze the firearms in this case.

Under your interpretation of the law the government could literally declare anything illegal and come take it from anyone who had it and destroy it, and as long as they didnít use it themselves not have to compensate anyone.

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Response to Lee-Lee (Reply #7)

Wed Apr 25, 2018, 01:15 PM

8. Huh?

If the person from whom the guns were confiscated is not a minor, then, in my layman's view, there is no rational reason for returning those guns to the guy's father. Sure, he's a blood relation, but unless he has a legal relationship, like a guardian, he's just another guy.


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Response to matt819 (Reply #8)

Wed Apr 25, 2018, 01:32 PM

10. And that was the just another guy that he chose to hve then handed over to

 

He could have asked to have them given to his dad, a friend who could legally possess them, a gun store to sell them for him, anyone who could legally possess them and agreed to take them.

From what I understand his father was present at the moment and agreed to take them.

I am certain that the police made it very clear it would be a criminal act to give them back. In doing his his dad broke the law just like anyone else who illegally helps prohibited persons obtain firearms.

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Response to Lee-Lee (Reply #7)

Wed Apr 25, 2018, 01:31 PM

9. They can hold them. Well, you wouldn't be first policeman to misinterpret laws or

 

first gunner to do the same.

Where I live, you get caught with drugs in your car, or even fleeing an alleged crime, they can confiscate your auto long before trial.

The taking clause is usually cited by gun-lovers who think the government has to pay them if say an "assault" weapons ban in enacted. That is just not true.

Here is one of many legal scholars' -- not NRA henchmen or your run of the mill white wing gun-fancier -- conclusion on the taking clause:

"Thus, under the three-part public use test, no compensation would be
required by the fifth amendment if there were a federal or state ban on the
possession of firearm
s. Such a result may seem viscerally unfair; however, one
must remember that if every regulation of property required compensation, a
government would be unable to operate. More importantly, this result is
dictated by the words of the Constitution. . . . . . ."

https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=3833&context=lcp

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Response to Hoyt (Reply #9)

Wed Apr 25, 2018, 01:46 PM

11. They could hold them until he made arrangements for legal transfer

 

But since his dad was present and agreed to take them they went to him.

Yes, your car can be siezed if used in a crime before your trial. But it is held in evidence only until either the trial is done or charges are dropped. And if you are found not guilty or the charges st dropped they must return the car to you. Only if canvicted can they, under some circumstances, sieze the car permanently.

Now there is civil asset forfeiture- that I hate how is implemented- that is often used as a tool to sieze cash or cars from people suspected of drug dealing or human trafficking or other similar crimes. However thatís not applicable here. In those cases a civil case is brought saying that the items possessed were the proceeds of criminal enterprise and therefore if the person wants them back they need to prove they didnít come from the proceeds of criminal activity. That is not applicable here for a number of reasons, mostly that it would utterly fail if tried.

Since the firearms discussed here were not used in commission of a crime they couldnít be siezed permanently.

Itís a different legal argument talking about a ban on all possession of firearms, one not germane to this case. In that case a person wouldnít have options to otherwise retain value since nobody could buy the items. And itís far from settled case law in that case as well, but thatís a subject for another thread since it doesnít apply here.

In this case there are legal avenues for the person to comply with the law by disposing of the firearms while not having his property taken, but rather by allowing him to dispose of them in a way where he gets value of some sort in return. He could sell them or gift them or anything else he chose and be in 100% compliance with the law.

Now his dad, by giving them back, certainly broke the law. In the same way a straw buyer or anyone else who helps a prohibited person obtain firearms does. And Iím certain he was told when he took possession of the firearms it was a crime to return them, so he knew.

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Response to Lee-Lee (Reply #11)

Wed Apr 25, 2018, 02:14 PM

12. Yeah, until he appeared in a pink shirt and nude otherwise. Give me a break. This kid wasn't

 

going to make a big stir to get his guns back. They gave then to dad, probably because the police that did it were gun-fanatics and just protecting their erroneous interpretation of the 2nd Amendment.

Whatever, they screwed up and saying that was the law is just an excuse for their incompetence.

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Response to Lee-Lee (Reply #3)


Response to grumpyduck (Original post)

Wed Apr 25, 2018, 12:55 PM

6. Guns are sacred religious artifacts.

They must not be destroyed. It would be like burning a family's Bibles.

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