by Pa Rock
Citizen Journalist
I may live in backwoods Missouri, but several times a year I manage to cross into exotic locales like Arkansas and Kansas - and at least twice a year I hop on a plane and head out to Oregon to visit my grandchildren who live there. Portland, the place where my plane lands, is a large, bustling metropolis that proudly offers sanctuary to people supporting every left-wing cause in America. It is a fun and exciting place to be. Portland is so large and overpowering that it often defines the politics of the entire state.
Not too far outside of Portland the political landscape begins to change, and by the time a traveler reaches the state capital of Salem, forty miles from Portland, the feel of the countryside is more of a rural and impoverished America than it is the coffee-house-chic of Portland. Salem is so much smaller than Portland that it makes it almost impossible to miss seeing the poverty and homelessness surrounding the governmental heart of the state. Many of the people living in Oregon's capital - and indeed many of the structures in which they reside, could be picked up and dropped into my small community of West Plains, Missouri, without any noticeable effect on the local decor or activity.
Outside of Portland the population of Oregon is not the latte-sipping liberals who occasionally toke their legal weed while offering up grand pronouncements and sensible solutions to age-old problems. Outside of Portland the population is a bit more coarse. Many who live beyond the shadow of Portland view Walmart as a community center, Fox and talk radio as sources of news, and guns as a way of life. Rural Oregon is extremely similar to rural Missouri and Arkansas.
But massive Portland does more to counterbalance the hillbillies of rural Oregon than either Kansas City or St. Louis seems to be able to do for outstate Missouri - and because of Portland, Oregon will occasionally pass some startlingly liberal legislation. That has happened recently, in fact.
The day before yesterday, January 1st, new laws became effective in Oregon which will make the state a safer place to live while offering more protections to abused women and children. Oregon passed a gun measure which closed the "boyfriend loophole."
It has been illegal for a person convicted of domestic abuse in Oregon to own firearms or ammunition if, at the time of the incident, the abuser was a family or household member of the victim including someone who was living with the victim. Now the law has been expanded to include anyone who has been involved in a sexually intimate relationship with the victim. It also specifically includes current and former spouses, adults related by blood or marriage, persons presently or formerly cohabiting with each other, and unmarried parents of a minor child. The qualifying misdemeanors which will engage this law include the use, or attempted use, of physical force - or the threatened use of a deadly weapon.
Also, the new gun-related laws in Oregon include a provision that would keep persons convicted of stalking misdemeanors from purchasing or possessing firearms.
As long as guns remain readily available to the general populace across the nation, the United States will retain its dubious distinction as one of the world's most crime-riddled countries. Occasional small legislative victories, however, like the one in Oregon that makes it more difficult for domestic abusers to arm themselves and harm others, do provide some hope that one day our country will wake up and realize the massive amounts of harm that guns actually cause. In particular, guns pose a serious risk for the victims of domestic abuse.
One hopes that Oregon is forging a path that other states will find the courage to follow.
Citizen Journalist
I may live in backwoods Missouri, but several times a year I manage to cross into exotic locales like Arkansas and Kansas - and at least twice a year I hop on a plane and head out to Oregon to visit my grandchildren who live there. Portland, the place where my plane lands, is a large, bustling metropolis that proudly offers sanctuary to people supporting every left-wing cause in America. It is a fun and exciting place to be. Portland is so large and overpowering that it often defines the politics of the entire state.
Not too far outside of Portland the political landscape begins to change, and by the time a traveler reaches the state capital of Salem, forty miles from Portland, the feel of the countryside is more of a rural and impoverished America than it is the coffee-house-chic of Portland. Salem is so much smaller than Portland that it makes it almost impossible to miss seeing the poverty and homelessness surrounding the governmental heart of the state. Many of the people living in Oregon's capital - and indeed many of the structures in which they reside, could be picked up and dropped into my small community of West Plains, Missouri, without any noticeable effect on the local decor or activity.
Outside of Portland the population of Oregon is not the latte-sipping liberals who occasionally toke their legal weed while offering up grand pronouncements and sensible solutions to age-old problems. Outside of Portland the population is a bit more coarse. Many who live beyond the shadow of Portland view Walmart as a community center, Fox and talk radio as sources of news, and guns as a way of life. Rural Oregon is extremely similar to rural Missouri and Arkansas.
But massive Portland does more to counterbalance the hillbillies of rural Oregon than either Kansas City or St. Louis seems to be able to do for outstate Missouri - and because of Portland, Oregon will occasionally pass some startlingly liberal legislation. That has happened recently, in fact.
The day before yesterday, January 1st, new laws became effective in Oregon which will make the state a safer place to live while offering more protections to abused women and children. Oregon passed a gun measure which closed the "boyfriend loophole."
It has been illegal for a person convicted of domestic abuse in Oregon to own firearms or ammunition if, at the time of the incident, the abuser was a family or household member of the victim including someone who was living with the victim. Now the law has been expanded to include anyone who has been involved in a sexually intimate relationship with the victim. It also specifically includes current and former spouses, adults related by blood or marriage, persons presently or formerly cohabiting with each other, and unmarried parents of a minor child. The qualifying misdemeanors which will engage this law include the use, or attempted use, of physical force - or the threatened use of a deadly weapon.
Also, the new gun-related laws in Oregon include a provision that would keep persons convicted of stalking misdemeanors from purchasing or possessing firearms.
As long as guns remain readily available to the general populace across the nation, the United States will retain its dubious distinction as one of the world's most crime-riddled countries. Occasional small legislative victories, however, like the one in Oregon that makes it more difficult for domestic abusers to arm themselves and harm others, do provide some hope that one day our country will wake up and realize the massive amounts of harm that guns actually cause. In particular, guns pose a serious risk for the victims of domestic abuse.
One hopes that Oregon is forging a path that other states will find the courage to follow.
1 comment:
The Oregon expansion of this law from mere domestic abuse or indicia of mental disease or defect is a good and wise expansion. These laws have as their foundation 18 U.S.C. Section 922(g); with the domestic violence portion at (9).
This part of the code known as "The Domestic Violence Offender Gun Ban" has already passed satisfactory review by the United States Supreme Court. in the case of Voisine v. United States, 200 U. S. 321, 337. Justice Sotomayor joined in Justice Thomas' dissent to the extent that she agreed that some statutory language in the individual State criminal codes is not consistent with the similar offenses in other states. In other words here Maine's law required the use of force and not mere recklessness. The dissent sought uniformity.
The second part in which Sotomayor agreed with Thomas was the "mens rea" or culpable state of mind requirement for an offense to occur. The Model Penal Code mens rea standards are:
1. Purposeful
2. Knowing
3. Reckless
4. Negligent
5 Strict Liability.
Purposeful is typically not used because it is such a high standard to prove. Knowing is the most common mens rea standard for felonies. Reckless indicates a mental state of mind more culpable than negligence and is sometimes used for enhanced manslaughter offenses; that fall beneath knowing and above negligence. Negligence is of course your garden variety traffic offense. Strict Liability is just that and is almost always used in cases of statutory rape. It does not matter that she looked 25, said she was 25, and had identification that verified that she was 25. In fact she was 15 and the defendant is going to prison.
The problem with the mens rea standards, as Sotomayor (and apparently Thomas) agree, is that criminal courts have not required prosecutors to prove the "Knowing" level. Instead they have inferred the mental state of mind from the criminal act and the exigent circumstances. The example that haunts my aging fingers is that the defendant pulled the trigger and thus, if even for a fraction of a sentence, knew the gun would fire. Requiring proof of the mens rea requirement is not a bad idea.
Thomas' third point is one which Justice Bader should remind him about if the recent case of a federal judge declaring Obamacare unconstitutional reaches the Supreme Court. Thomas argued "Constitutional Avoidance" which is a rule of construction that says: "The doctrine of constitutional avoidance “command[s] courts, when faced with two plausible constructions of a statute—one constitutional and the other unconstitutional—to choose the constitutional reading."
The as applied quirk in these good laws, in my opinion, is where the cases are filed. Many states have courts that are not "of record". Such courts like municipal courts or justice of the peace courts do not have court reporters. The cases before them often, as in Missouri, do not rise to the level of misdemeanors when filed. The same case, with the same facts, alleges a misdemeanor offense if filed with the Circuit Court or its Associate Division in Missouri; while it is only an infraction of the city code if filed in the municipal court.
It is important to bring the allegations of domestic violence before the courts of record. Only there is the defendant entitled to the full panoply of constitutional protections: for example the right to counsel, the right against self-incrimination, the right to confront witnesses, the right to a speedy trial, and the right to discovery of evidence in preparation of the case for trial.
Absent the case arising from a court of record the defense will rightly argue violations of constitutional rights and perhaps a taking of firearms in contravention of the Fifth and Fourteenth Amendments.
These cases must be filed in the proper forums for Justice to prevail.
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