Interesting question involving both 1st & 2nd Amendment

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The Annoyed Man
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Interesting question involving both 1st & 2nd Amendment

#1

Post by The Annoyed Man » Wed Dec 05, 2018 1:41 pm

So one of the people I follow on Twitter is a Houston attorney who specializes in 1st Amendment issues, and who is also an ardent supporter of the 2nd Amendment. Politically, he describes himself as a “practical minarchist”. I know that he shoots a lot, and does things like build AR pistols with his son, etc., etc. He posted last night that he had just finished writing a 20 page brief on “Second Amendment rights being conditioned on not exercising First Amendment rights (gang membership).” I asked him if I understood him correctly to say that:
  1. The 1st Amendment protected right to freedom of association means that gang membership a protected right.
  2. There is nothing conditional about association in the 2nd Amendment.
  3. Ergo, Texas gun law is unconstitutional WRT gang affiliation.
He answered that yes, that is exactly what he meant.

The proposition intrigued me, so I brought it here to see what you guys think. I am particularly interested in specifically what thought processes drove the Lege to pass such a disqualifier in the law, and whether or not it has ever been challenged on 1st Amendment grounds. As the state’s “expert” if you will on gun law in Texas, I’d be very interested in what Charles Cotton has to say about it. I will begin by saying that I personally do understand ... at least I think I do ... why they would have made gang affiliation a disqualifier. I have just never considered the question from a 1st Amendment freedom of association perspective before.

Discuss.
Give me Liberty, or I'll get up and get it myself.—Hookalakah Meshobbab
I don't carry because of the odds, I carry because of the stakes.—The Annoyed Boy

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SewTexas
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Re: Interesting question involving both 1st & 2nd Amendment

#2

Post by SewTexas » Wed Dec 05, 2018 2:06 pm

If understand what he is saying, just being a member of a gang shouldn't be a disqualifier. Being a member of a "criminal" gang, ie: MS13, that ....probably? should, maybe? be a disqualifier? I don't know, I could? have a potential problem with that even, because I know that they have been known to more than "strong arm" people into joining them, so just being a member doesn't necessarily mean you're a criminal, ...yet...

and some "gangs" are more of a fraternity than a "gang" sort of like biker clubs, there are clubs and there are gangs, and the police don't always see the difference
~Tracy
Gun control is what you talk about when you don't want to talk about the truth ~ Colion Noir


rotor
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Re: Interesting question involving both 1st & 2nd Amendment

#3

Post by rotor » Wed Dec 05, 2018 2:12 pm

I have always wondered how gang membership could be outlawed. Some might say NRA membership should be outlawed. Interesting and I don't have an answer.


Rob72
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Re: Interesting question involving both 1st & 2nd Amendment

#4

Post by Rob72 » Wed Dec 05, 2018 3:23 pm

rotor wrote:
Wed Dec 05, 2018 2:12 pm
I have always wondered how gang membership could be outlawed. Some might say NRA membership should be outlawed. Interesting and I don't have an answer.
You're kidding, right? Criminal enterprise in support of political change is more commonly called, "terrorism."

Summary of common RICO prosecutions of gangs:
Sex trafficing
Sex trafficing of a child
Prostitution
Production/distribution of illicit substances
Production/distribution of illegal weapons
Production/distribution of automatic weapons
Production/distribution of explosives
Felony theft motor vehicle
Felony theft property
Armed robbery
Collusion for systematic Home invasion
Collusion to commit murder
etc., etc..

Oddly, members of gangs participate in these activities more commonly than members of the NRA. Oddly, so do members of PETA...

I would also note that modern interpretation of the First Amendment is largely the produce of, "legislation from the bench." Strict Constitutionalists would say that Political/Religious speech is protected, not the fart-whistling opinions so commonly pulled in under the umbrella.
Last edited by Rob72 on Wed Dec 05, 2018 3:31 pm, edited 1 time in total.

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Re: Interesting question involving both 1st & 2nd Amendment

#5

Post by Flightmare » Wed Dec 05, 2018 3:27 pm

In that case, prosecute the person if they have committed one of the crimes listed above. Association should not be a crime.
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Rob72
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Re: Interesting question involving both 1st & 2nd Amendment

#6

Post by Rob72 » Wed Dec 05, 2018 3:31 pm

Flightmare wrote:
Wed Dec 05, 2018 3:27 pm
In that case, prosecute the person if they have committed one of the crimes listed above. Association should not be a crime.
Participation in gang activity, "pledging in", is a public statement of agreement and support of, the activities of the gang. If you don't believe criminal activity is a valid lifestyle, why would you be a member of a gang? Great retirement benefits?


rotor
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Re: Interesting question involving both 1st & 2nd Amendment

#7

Post by rotor » Wed Dec 05, 2018 3:42 pm

Rob72 wrote:
Wed Dec 05, 2018 3:23 pm
rotor wrote:
Wed Dec 05, 2018 2:12 pm
I have always wondered how gang membership could be outlawed. Some might say NRA membership should be outlawed. Interesting and I don't have an answer.
You're kidding, right? Criminal enterprise in support of political change is more commonly called, "terrorism."

Not kidding. I know that many gangs are involved with criminal activity but being a member of a group to my thinking does not necessarily make one a criminal. If an individual commits a crime than prosecute that individual. How can being a member of a group be an illegal act though? I am not in favor of MS13 or any group but I always wondered how these gangs could legally be outlawed.


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Re: Interesting question involving both 1st & 2nd Amendment

#8

Post by Archery1 » Wed Dec 05, 2018 3:43 pm

Rob72 wrote:
Wed Dec 05, 2018 3:31 pm
Flightmare wrote:
Wed Dec 05, 2018 3:27 pm
In that case, prosecute the person if they have committed one of the crimes listed above. Association should not be a crime.
Participation in gang activity, "pledging in", is a public statement of agreement and support of, the activities of the gang. If you don't believe criminal activity is a valid lifestyle, why would you be a member of a gang? Great retirement benefits?
The Penal Code does not make the association illegal. Jurisdictions can get civil orders making guilt by association a crime of violating the order (not the membership), which is probably the sticky point of this research under topic.
Last edited by Archery1 on Wed Dec 05, 2018 3:44 pm, edited 1 time in total.

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Re: Interesting question involving both 1st & 2nd Amendment

#9

Post by SewTexas » Wed Dec 05, 2018 3:44 pm

Rob72 wrote:
Wed Dec 05, 2018 3:31 pm
Flightmare wrote:
Wed Dec 05, 2018 3:27 pm
In that case, prosecute the person if they have committed one of the crimes listed above. Association should not be a crime.
Participation in gang activity, "pledging in", is a public statement of agreement and support of, the activities of the gang. If you don't believe criminal activity is a valid lifestyle, why would you be a member of a gang? Great retirement benefits?
read your other comment and you'll get your answer, if that doesn't help, read mine.
~Tracy
Gun control is what you talk about when you don't want to talk about the truth ~ Colion Noir

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Re: Interesting question involving both 1st & 2nd Amendment

#10

Post by ScottDLS » Wed Dec 05, 2018 4:11 pm

rotor wrote:
Wed Dec 05, 2018 2:12 pm
I have always wondered how gang membership could be outlawed. Some might say NRA membership should be outlawed. Interesting and I don't have an answer.
The way I understand it, it is not currently outlawed in Texas. The restriction that was put on "criminal street gang" members was that they cannot carry under the Motorist Protection Act. In legal terms, they violate PC 46.02 by carrying in their motor vehicles without a LTC. Since they can still obtain a LTC (assuming they meet other criteria), I guess the thought is that their rights are not being denied due to their membership. To me it seems like a pretty arbitrary distinction to make something illegal, due to your participation in a (theoretically) First Amendment protected activity. If you can't make membership in the "gang" itself illegal, then why do you get to put other arbitrary restrictions on members? Perhaps this was added to MPA to get by some hurdle in the Legislature. If we get a "permitless carry" bill this session, look for something like this in it too maybe?
4/13/1996 Completed CHL Class, 4/16/1996 Fingerprints, Affidavits, and Application Mailed, 10/4/1996 Received CHL, renewed 1998, 2002, 2006, 2011, 2016...). "ATF... Uhhh...heh...heh....Alcohol, tobacco, and GUNS!! Cool!!!!"


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Re: Interesting question involving both 1st & 2nd Amendment

#11

Post by Rob72 » Wed Dec 05, 2018 4:20 pm

SewTexas wrote:
Wed Dec 05, 2018 3:44 pm
Rob72 wrote:
Wed Dec 05, 2018 3:31 pm
Flightmare wrote:
Wed Dec 05, 2018 3:27 pm
In that case, prosecute the person if they have committed one of the crimes listed above. Association should not be a crime.
Participation in gang activity, "pledging in", is a public statement of agreement and support of, the activities of the gang. If you don't believe criminal activity is a valid lifestyle, why would you be a member of a gang? Great retirement benefits?
read your other comment and you'll get your answer, if that doesn't help, read mine.
Ex-EMT, ex-Corrections, ex-Ryan White/Infectious Diseases Nurse, current rehab sponsor. I understand gangs and their activities.
Please understand, the most fantastic legal acts of self-gratification will not change two facts: 1) gangs thrive where they are tolerated, 2) if you're a "virgin" in a gang, you're first tag for a high-value felony, as you'll (generally) serve the least time, and get your real training while you're in-house.

Regarding the current legal status of gang membership, legality is largely because the populace would not tolerate war in the streets for the (short) time it would take to eradicate most of them. Legally, the case law does exist to pursue making membership illegal, there is simply no will. E.g., if possession=intent, membership=intent. Again, we can play hypothetical all day, but the bottom line is that "gangs" are not social clubs, with benign social goals.


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Re: Interesting question involving both 1st & 2nd Amendment

#12

Post by Archery1 » Wed Dec 05, 2018 4:41 pm

Rob72 wrote:
Wed Dec 05, 2018 4:20 pm
SewTexas wrote:
Wed Dec 05, 2018 3:44 pm
Rob72 wrote:
Wed Dec 05, 2018 3:31 pm
Flightmare wrote:
Wed Dec 05, 2018 3:27 pm
In that case, prosecute the person if they have committed one of the crimes listed above. Association should not be a crime.
Participation in gang activity, "pledging in", is a public statement of agreement and support of, the activities of the gang. If you don't believe criminal activity is a valid lifestyle, why would you be a member of a gang? Great retirement benefits?
read your other comment and you'll get your answer, if that doesn't help, read mine.
Ex-EMT, ex-Corrections, ex-Ryan White/Infectious Diseases Nurse, current rehab sponsor. I understand gangs and their activities.
Please understand, the most fantastic legal acts of self-gratification will not change two facts: 1) gangs thrive where they are tolerated, 2) if you're a "virgin" in a gang, you're first tag for a high-value felony, as you'll (generally) serve the least time, and get your real training while you're in-house.

Regarding the current legal status of gang membership, legality is largely because the populace would not tolerate war in the streets for the (short) time it would take to eradicate most of them. Legally, the case law does exist to pursue making membership illegal, there is simply no will. E.g., if possession=intent, membership=intent. Again, we can play hypothetical all day, but the bottom line is that "gangs" are not social clubs, with benign social goals.
Protecting the rights of scum of the earth is of no concern with anyone, I doubt. The question is what about those who ain't scum. Gangs membership is all about association. Other folks may associate and never know that their mere presence around others who associated makes non-members associated as well. Remember, it's all about association, not card-carrying. Say your brother, uncle, friend, etc.., is in a gang, hangs with a gang, or hangs with just one member. You socialize with them.

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Re: Interesting question involving both 1st & 2nd Amendment

#13

Post by RoyGBiv » Wed Dec 05, 2018 4:43 pm

If I start a "gang" and we all ride motorcycles and help old people carry groceries to their cars at WalMart, Then I get to keep 1A and 2A.

If I start a "gang" and we go out robbing people and selling drugs, that is not only a "gang" but also a "criminal organization", which is a violation of LTC.

I don't see a lot of gray in this.. but.. :confused5
I am not a lawyer. This is NOT legal advice.!
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Re: Interesting question involving both 1st & 2nd Amendment

#14

Post by ScottDLS » Wed Dec 05, 2018 4:57 pm

RoyGBiv wrote:
Wed Dec 05, 2018 4:43 pm
If I start a "gang" and we all ride motorcycles and help old people carry groceries to their cars at WalMart, Then I get to keep 1A and 2A.

If I start a "gang" and we go out robbing people and selling drugs, that is not only a "gang" but also a "criminal organization", which is a violation of LTC.

I don't see a lot of gray in this.. but.. :confused5
If you create a "gang" and then members of that "gang" go about committing crimes, then they (the particular members) are violating the law by definition...robbing, shooting, etc. You MAY be committing a crime if you conspire with, facilitate, and/or encourage others to commit crimes. The membership or "association" with the "gang", short of specifically prohibited acts would seem to be a Constitutionally protected activity. Who makes the adjudication of whether someone is a "member" of a criminal street gang? Does it require due process before depriving someone of some rights due to membership in such? I see a lot of gray areas. :confused5
4/13/1996 Completed CHL Class, 4/16/1996 Fingerprints, Affidavits, and Application Mailed, 10/4/1996 Received CHL, renewed 1998, 2002, 2006, 2011, 2016...). "ATF... Uhhh...heh...heh....Alcohol, tobacco, and GUNS!! Cool!!!!"

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Re: Interesting question involving both 1st & 2nd Amendment

#15

Post by ScottDLS » Wed Dec 05, 2018 5:09 pm

Rob72 wrote:
Wed Dec 05, 2018 4:20 pm
SewTexas wrote:
Wed Dec 05, 2018 3:44 pm
Rob72 wrote:
Wed Dec 05, 2018 3:31 pm
Flightmare wrote:
Wed Dec 05, 2018 3:27 pm
In that case, prosecute the person if they have committed one of the crimes listed above. Association should not be a crime.
Participation in gang activity, "pledging in", is a public statement of agreement and support of, the activities of the gang. If you don't believe criminal activity is a valid lifestyle, why would you be a member of a gang? Great retirement benefits?
read your other comment and you'll get your answer, if that doesn't help, read mine.
Ex-EMT, ex-Corrections, ex-Ryan White/Infectious Diseases Nurse, current rehab sponsor. I understand gangs and their activities.
Please understand, the most fantastic legal acts of self-gratification will not change two facts: 1) gangs thrive where they are tolerated, 2) if you're a "virgin" in a gang, you're first tag for a high-value felony, as you'll (generally) serve the least time, and get your real training while you're in-house.

Regarding the current legal status of gang membership, legality is largely because the populace would not tolerate war in the streets for the (short) time it would take to eradicate most of them. Legally, the case law does exist to pursue making membership illegal, there is simply no will. E.g., if possession=intent, membership=intent. Again, we can play hypothetical all day, but the bottom line is that "gangs" are not social clubs, with benign social goals.
Perhaps there is no "will" because it would be (IMO) blatant disregard of the 1st and 5th amendments (at a minimum) to make membership and association illegal. What "case law" exists that allows for creation of such a statutory law? I'm assuming it would be Constitutional case law, upholding a similar statute elsewhere (i.e. another state). You could make an argument for application of federal RICO, but that doesn't automatically criminalize membership, it simply allows prosecution of the person/persons that direct certain illegal activity.
4/13/1996 Completed CHL Class, 4/16/1996 Fingerprints, Affidavits, and Application Mailed, 10/4/1996 Received CHL, renewed 1998, 2002, 2006, 2011, 2016...). "ATF... Uhhh...heh...heh....Alcohol, tobacco, and GUNS!! Cool!!!!"

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