"Constructive Possession" - the greatest threat of HR2640

[Old Ironsights]

This needs its own thread.

Constructive Possession http://www.answers.com/topic/possession?cat=biz-fin

Constructive possession is a legal theory used to extend possession to situations where a person has no hands-on custody of an object. Most courts say that constructive possession, also sometimes called "possession in law," exists where a person has knowledge of an object plus the ability to control the object, even if the person has no physical contact with it (United States v. Derose, 74 F.3d 1177 [11th Cir. 1996]). For example, people often keep important papers and other valuable items in a bank safety deposit box. Although they do not have actual physical custody of these items, they do have knowledge of the items and the ability to exercise control over them. Thus, under the doctrine of constructive possession, they are still considered in possession of the contents of their safety deposit box. (locked or not - OI) Constructive possession is frequently used in cases involving criminal possession.

Let's take this step by step... a Due Dilligence that the NRA thought unnecessary:

#1. A person lawfully owns (licensed, FOID, Vermont, whatever) firearms.

#2. A member of the Gun Owner's family/household, due to no criminal activity but only an "adjudication" by a "lawful authority" or "involuntary commitment" becomes a "prohibited person" - and placed in the NCIS.

#3. All firearms and ammunition in a household not secured so as the "prohibited person" cannot have even accidental access (as defined and inspected by the BATFE) is, by definition, "Constructive Possession".

#4. According to CFR Title 18 (922 & 925) "possession" by a "prohibited person" is a punishable violation of Federal Law.

#5. Simple correlation of the NCIS and extant Public Records (FOIDs, CCW/CCP licenses, (4473s?)) would be Sufficient Cause for a Warrant & Seizure of "firearms in possession of Prohibited Persons".

Net Result:

EVERY HOUSEHOLD WITH A "PROHIBITED PERSON" IS/WILL BE SUBJECT TO FIREARM CONFISCATION.

This is technically true now, but, as of yet, because of the medical privacy laws that HR2640 will subvert, there is NO WAY for the BATFE/Anti Gun Pols to correlate any households other than those of "Felons" (another issue that deserves debating since "felon" doesn't just mean "violent").

Add the names of tens of thousands of "adjudicated" persons - everything from once-suicidal-teens to post-partum-depressive women to PTSD Veterans to simple "bookkeeping errors" - and suddenly TENS OF THOUSANDS OF HOUSEHOLDS WILL BE FORBIDDEN TO POSSESS FIREARMS - FOREVER.

(NRA platitudes notwithstanding, the unfunded mandate to create program(s) to provide "relief" will either never have enough funding or be so overwhelmed as to, in either case, to not be useful.)

Not just the individuals on the NCIS, but everyone they live with.

Period.

No discussions.

The Case Law is there (look it up. Google "constructive possession" most cases have to do with drugs, but there are plenty bout guns and "prohibited persons" (felons) as well) - waiting to be used by an Anti Gun Attorney General willing to send the BATFE out to "enforce the law".

The NRA lawyers can't have been so stupid to have not noticed that. :mad:

[Old Ironsights]

In case anyone doubts where HR2640 will lead: (Thanks NRA...)

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College Admins: If You Favor Second Amendment Rights, You Must Be Crazy

By Jon Sanders
Wednesday, October 17, 2007
http://www.townhall.com/columnists/JonSanders/2007/10/17/college_admins_if_you_favor_second_amendment_right s,_you_must_be_crazy


A Minnesota college student was suspended and ordered to undergo "mental health evaluation" for his response to campuswide e-mails from school officials concerning the Virginia Tech massacre.

The college, Hamline University, a private, liberal-arts institution affiliated with the Methodist Church, has a policy on "Freedom of Expression and Inquiry" that guarantees that Hamline students will be "free to examine and discuss all questions of interest to them and to express opinions publicly or privately."

With such a strong guarantee on students' "freedom from censorship and control" by the university, student Troy Scheffler's e-mail must have been horrifically bad to warrant such a crackdown. Right?

Wrong. What Scheffler did was make a gun-rights case for concealed-carry permits on campus to help ward off potential Cho Seung-Huis before they strike Hamline. This was no monstrous act; in fact, it was in line with public debate across the nation following Cho's rampage, not to mention an issue of perennial debate in America. Many researchers, most notably John R. Lott Jr., have shown conclusively that gun ownership itself wards off crime while laws banning guns lead to increases in crimes. Criminals are less likely to strike if they have reason to believe their prospective victims could be armed.

Scheffler had written in his April 17 e-mail reply to David Stern, Hamline vice president of student affairs, that "Considering this university also pushes 'diversity' initiatives like VA Tech, maybe its 'leadership' will reconsider [Hamline's] ban on conceal carry law abiding gun owners... Ironically, according to a few VA Tech forums, there are plenty of students complaining that this wouldnt have happened if the school wouldnt have banned their permits a few months ago."

He added, "I just dont understand why leftists dont understand that criminals dont care about laws; that is why they’re criminals... Maybe this school will reconsider its repression of law abiding citizens rights."

Two days later, Hamline President Linda Hanson e-mailed the campus about Virginia Tech. Scheffler replied to that e-mail also, expanding upon his comments to Stern.

In both messages, Scheffler made it clear to all but the most hysterically inclined person that his advocacy of concealed-carry permits was to protect the students from criminals. Scheffler recognized that this protection would be afforded primarily by predators' foreknowledge that any one of the students at Hamline could shoot back, but also – given that the administrators had both brought up the VT massacre – by students being able to stop a killing rampage before it got started.

In short, what Scheffler wrote was no preamble to a blood-lusty explosion of violence. At worst it was crude criticism of the university administration combined with a stark assessment of the true risk of a concealed-carry society like Virginia Tech's: total defenselessness against a Columbine-inspired mass murderer. Regardless, it should have been protected by the university's stated policy guaranteeing free expression.

Nevertheless, on April 23 Scheffler received a hand-delivered letter from Dean of Students Alan Sickbert that informed him his e-mails were "deemed to be threatening and thus an alleged violation of the Hamline University Judicial Code" and that he was placed on "interim suspension" to be lifted only after he agreed to a psychological evaluation by a licensed mental health professional.

Scheffler contacted the Foundation for Individual Rights in Education, whose service in the cause of liberty in opposition to the petty tyrants populating American academe is invaluable. The history of the case, including the offending e-mails, are viewable on the FIRE's web site (www.thefire.org). Hamline officials say they moved to suspend after Scheffler failed to meet with university officials over his e-mails (he was given less than one full business day to do so) and that he is also the subject of "critical input from various members of the Hamline community" (which was news to Scheffler, nor has he been told of their identities nor given a chance to defend himself against their allegations, whatever they are – if those people exist at all).

The Soviet Union was notorious for psychiatric abuse, the use of psychiatric hospitals for the incarceration of political dissidents. Human Rights Watch accuses the government of China of psychiatric abuse of political activists, whistleblowers, various individuals and especially members of Falun Gong. Declaring dissidence a sign of mental instability is one of the lesser-known tools of the despot.

Psychiatric abuse is not something one expects in America, but it happens. For example, in June, the assistant director of the North Carolina Division of Motor Vehicles, Joey Gardner, was suspended without pay and ordered to undergo a psychological evaluation after blowing the whistle on DMV Commissioner George Tatum for allegedly seeking help to get his friend a vintage vehicle title for a replica (Tatum later resigned). In 2001, a Temple University student, Michael Marcavage, was involuntarily committed by his university for protesting a campus production of "Corpus Christi," a play that depicts Jesus Christ as a homosexual having carnal relations with his disciples.

In his April 19 e-mail, Scheffler wrote pessimistically, "Im sure this plea of common sense will fall on deaf ears." While the fault wasn't with the ears, as he had predicted, Scheffler's plea did indeed fall on disabled faculties.

Jon Sanders is a policy analyst and research editor at the John Locke Foundation in Raleigh, N.C.