Is this a blatant violation of the 2nd Amendment?

From your link:

"According to all accounts, Alexander then retrieved her gun from her vehicle and went to the kitchen." Unless her car was parked in the kitchen, she escalated the situation.

 

Including a warning shot?

 

Indeed. Even if a firearm is not directly aimed at an individual when it is discharged, it still legally counts as an exercising of deadly force. The fact the exercising of deadly force was engaged in, not for the purpose of immediate defense, but for the purpose of intimidation in a situation where deadly force was not immediately warranted, makes the situation legally worse for the one who exercised deadly force to begin with.

 

I’ve provided some examples of “legal” items that are seized by search warrant, and if you want I can provide plenty more. Let me first try to explain it better this way….

Search warrants always involve a search of a location for an item of evidence. For example, of a house for a weapon, or of a human body for a DNA sample. Warrants are also not limited to a single item and can involve the seizure of many different types of items in the same warrant—so long as probable cause exists to justify the seizure of each item listed in the warrant.

As far as what the warrant is “centered on,” it is always the item(s) you want to seize as evidence. These “targets,” if you will, of a warrant are always the item(s) you wish to seize, while the location just happens to the place where you believe your target(s) will be found.

These “target” items that are sought can be illegal per se, like crack cocaine, which is always illegal under any circumstances. They can also be perfectly legal items, like firearms, which can be seized because the particular circumstances of the case also make them evidence connected to a crime by the particular circumstances of their possession or use.

Let me give you a few examples involving firearms. Assume you have a Glock .40 in a drawer in the nightstand beside your bed. The RKBA is a fundamental individual right of all mankind, and I choose this firearm and location because it has been specifically recognized as being protected by the 2nd Amendment RKBA in Heller (which, by the way, was only the start of and not the end of the proper SCOTUS recognition of the scope of the right). Yet firearms like this are “targeted” for seizure by a search warrant all the time. Assume probable cause exists for both the crime and the location of the firearm in each of these scenarios:

If you are a convicted felon, then a warrant can issue to search your house with the “target” being the firearm, because it is evidence of the crime of possession by a felon. The otherwise legal object has, because of the circumstances, become evidence of a crime and subject to seizure.

If you are a burglar, and you broke into my house the night before and stole this Glock from me, then the otherwise legal firearm has become evidence of the fruits of your crime. Targeting the firearm for seizure would also help identify you as the thief.

Now assume you bought the firearm legally from an FFL dealer, but later you became addicted to crack cocaine, and you kept crack in the same drawer as the gun. Here a warrant would search your house with the target being both the cocaine and the gun. The crimes would be possession of cocaine and the separate crime of possessing a firearm while possessing cocaine. Both the always “illegal” cocaine and the otherwise “legal” firearm can be seized as evidence of these crimes. The firearm, by these circumstances, has become evidence of a crime.

Now assume you bought the firearm legally from an FFL dealer, but then you were out on the town and saw the man who had just stolen your girlfriend from you. In a rage you chase him and shoot up his car leaving behind a number of .40 shell casings. A warrant will issue to search your house targeting the firearm because it was the instrument used to commit the crime of shooting into an occupied vehicle, and it is also evidence that might identify you as the shooter if your gun becomes linked to the shell casings a the shooting scene. Again, the “legal” firearm has, by the circumstances, now become evidence of a crime.

The point is any item which is “legal” to own and possess can become the subject of a search warrant if it also potential evidence of a crime, or evidence that links you to the crime. And the fact that it is legal to own, and even protected by my Constitution to own and possess, does not prevent it from being seized by a search warrant.

This applies in the St. Louis case. Law enforcement offered probable cause that caused a judicial officer to issue a warrant to seize these “legal” firearms because the circumstances presented to the judicial officer were that these firearms have now become evidence of a crime—likely because of their alleged use in the crime they are now charged with. I can see nothing illegal or unusual about the seizure (beyond the courtesy of allowing them to surrender the guns without having their front door kicked in and house ransacked by a search).

Whether they can be convicted (or even should be charged) is another matter entirely.

Every crime is defined by one or more factual elements, each of which must be proven beyond a reasonable doubt for conviction. For example, in Virginia the crime of first-degree murder has three elements: 1. an intentional killing, 2. done with malice, and 3. with premeditation.

Nothing is required in any criminal case other than the proof necessary to convict. How that proof is put together, and how much is believed to be necessary to meet he burden of proof to get a conviction, is a question only that prosecutor can answer.

Having said this, and to address your hypothetical, even a complete confession requires “slight corroboration.” For example, I could confess to killing Jimmy Hoffa (which I did not do), but the confession would still require some corroboration of my confession to convict me.

And it would also depend on the confession. Rarely is the confession that does not also include a claimed justification for why the defendant acted the way he did. If, for example, this couple confessed to brandishing the firearms, and that they were actual firearms, then that is helpful evidence towards their conviction. But if within this confession they said “we did it because we were being attacked and/or threatened,” then if I were prosecuting the case AND I believed they were lying about why the brandished their firearms I would never offer that confession in my case. To be fair you can’t just offer the portion of a confession you want. Offering a “confession” requires making all of it available as evidence. This would allow the defendants to put their defense into evidence without their having to risk testifying.

Frequently I have refused to offer these “justification” confessions when you believe they are lying and you believe that you can break their lies down if the testify. The defendant cannot offer his justification in his confession himself because it would be self-serving hearsay. So here (If I believed the case should be prosecuted) I would offer the video, any eyewitness testimony, and the seized firearms into evidence without the confession and its justification statements. In this circumstance they would have to testify to put that defense into evidence—which is always more desirable for a prosecutor because this subjects them to the crucible of cross-examination about their claim to be justified in what they did. Again, if I believed in the case and believed they were lying about their justification.

They never are. The point is because they never are due process requires they have an opportunity to later challenge the search warrant.

The affidavit, the warrant itself, and the inventory return are typically all public documents that are filed with the court where the search happened. If this happened in Virginia, then I can promise you our local media would have already gotten a copy and published it. I have not seen it done in this St. Louis case (but I have not spent a lot of time searching for it either). If no one has published it, then either the media does not care or it has been sealed to prevent it being seen. If a challenge is made to the warrant then the media will likely show up and report what both sides say about it, which would better inform us of what actually happened to get the warrant.

Yes, the probable cause statement in the affidavit would list the reasons why the warrant is sought and, in the opinion of law enforcement, should be issued.

 

Absolutely. Here is Virginia’s statute:

It shall be unlawful for any person to point, hold or brandish any firearm or any air or gas operated weapon or any object similar in appearance, whether capable of being fired or not, in such manner as to reasonably induce fear in the mind of another or hold a firearm or any air or gas operated weapon in a public place in such a manner as to reasonably induce fear in the mind of another of being shot or injured. However, this section shall not apply to any person engaged in excusable or justifiable self-defense. Persons violating the provisions of this section shall be guilty of a Class 1 misdemeanor or, if the violation occurs upon any public, private or religious elementary, middle or high school, including buildings and grounds or upon public property within 1,000 feet of such school property, he shall be guilty of a Class 6 felony. Virginia Code § 18.2-282

The conduct being punished is threatening someone to make them afraid you have a firearm and might be about to use it. It does not require it to be an actual firearm so long as the circumstances make someone reasonably fear it is a firearm and is about to be used.

Yes. It has always been viewed that way. Self-defense and defense of others are what we call “affirmative defenses” that must be raised by the person charged with any crime. The crime requires an unjustifiable brandishing. If evidence is offered that creates reasonable doubt on this point then the defendant must be found not guilty. The defense is actually stated in this code section, but it is not required to be. The common law rights of defense are always applicable to any crime if the evidence can support it.

 

Democrats and Independents voted for Trump in DP strongholds.

 

I'm amazed at the number of people who never go past Heller.

 

"Go past Heller" to what and where, precisely? What relevant cases are not being mentioned and/or referenced?

 

When many federal crimes have been well documented for years and few are prosecuted it does not inspire confidence in the AG and his team.

“That all of these officials committed ***major crimes*** can hardly be disputed. In January, CNN reported that Flynn’s calls with the Russians “were captured by routine U.S. eavesdropping targeting the Russian diplomats.” That means that the contents of those calls were “obtained by the processes of communication intelligence from the communications of [a] foreign government,” which in turn means that anyone who discloses them — or reports them to the public — is guilty of a felony under the statute.”
THE INTERCEPT, The Leakers Who Exposed Gen. Flynn’s Lie Committed Serious — and Wholly Justified — Felonies, By, Glenn Greenwald, February 14 2017. (*** mine)
https://theintercept.com/2017/02/14...mitted-serious-and-wholly-justified-felonies/

 

Brandishing a firearms will always make a rational human being retreat - instantly.

"Guns prevent an estimated 2.5 million crimes a year, or 6,849 every day. Most often, the gun is never fired, and no blood (including the criminal’s) is shed.
Every year, 400,000 life-threatening violent crimes are prevented using firearms.
60 percent of convicted felons admitted that they avoided committing crimes when they knew the victim was armed. Forty percent of convicted felons admitted that they avoided committing crimes when they thought the victim might be armed.
Felons report that they avoid entering houses where people are at home because they fear being shot."
Guns Prevent Thousands of Crimes Every Day, Research Shows, How many lives are actually saved by gun ownership?
Friday, August 23, 2019.
https://fee.org/articles/guns-prevent-thousands-of-crimes-every-day-research-show/

 

Heller is a watershed case, but it is only the beginning of the proper SCOTUS treatment of the right. SCOTUS is (rightly) limited by the case-or-controversy rule whereby its rulings must be limited to the specific issue presented. In Heller the issue was possession of a handgun in a home for defense. For all the words explaining the ruling, the ruling itself is here:

“In sum, we hold that the District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.” District Of Columbia v. Heller, 554 U.S. 570, 635 (200

Some anti-gun people have, after much wailing and gnashing of teeth when Heller was first announced, now latched onto Heller in a patently fraudulent claim that its limited ruling is the only thing the RKBA protects. Sort of a "we don’t like it but clearly 'that’s all folks' argument." Keep your darned guns at home because the RKBA does not protect them otherwise (or at least SCOTUS has not ruled they have any protection outside so in the absence let’s continue to make laws that restrict possession outside the home).

Yet Heller itself noted that this was not the end of the road for clarification of the full scope of the RKBA as protected by the 2nd Amendment:

“JUSTICE BREYER chides us for leaving so many applications of the right to keep and bear arms in doubt, and for not providing extensive historical justification for those regulations of the right that we describe as permissible. See post, at 720-721. But since this case represents this Court's first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field, any more than Reynolds v. United States, 98 U.S. 145 (1879), our first in-depth Free Exercise Clause case, left that area in a state of utter certainty. And there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us.” Id.

This is merely a restatement of the restriction on SCOTUS’ power found in the case-or-controversy rule. It is an explanation that “we must limit our ruling to what is before us and we cannot outline everything the right protects in this one case.” This is exactly how SCOTUS has ruled for all of our rights—cases involving a small issue within the broader scope of the right producing rulings on that narrow issue which then build upon one another as different issues arise in different cases—sort of like putting the individual pieces of the puzzle together to give the proper picture of everything the right protects.

For the RKBA, we are only at the beginning of SCOTUS rulings on the full scope of the right. The Heller ruling was applied to the states in McDonald. But the full scope of the RKBA has still not been addressed. For example, SCOTUS has not directly ruled on the scope of the RKBA outside the home. “Going beyond Heller” to me involves rulings that will expand the explanation of the proper scope of the right to activities Heller could not address—like possession outside the home for the purpose of self-defense.

 

Caetano cited Heller in overturning a conviction on using a weapon outside the home; A New York federal court cited Heller in overturning a ban on using a weapon outside the home; young v Hawaii cited Heller in overturning a ban on carrying a weapon outside the home.

 

And yet, it's illegal to brandish when threatened, at least in Missouri. And according to @Xenamnes, you
can get in LESS legal trouble by actually shooting and killing someone than just firing a warning shot! What a SICK JOKE!

 

In all states?

 

Who HAS been prosecuted?

Interesting. Glenn Greenwald is of the Left I think. And he wrote this article in 2017! Upon seeing your extract, I just assumed it was following the Auditor General's report earlier this year! Yet, even now after that report, I've not heard ANY conservative commentators saying that these activities were without question illegal - but rather just an abuse of power.

 

Well @FreshAir, what do you have to say about that?

 

Such is factually correct. This is a universal basis of united states law across all fifty states.

 

"It must be done in response to an actual or strongly perceived threat to their immediate well being." You mean like a THREAT of violence?

 

Yes. Excellent cases, but I don't feel they have advanced the issue nearly enough.

Caetano was a SCOTUS case. Here Ms. Caetano was carrying a stun weapon when she was confronted outside her home by her attacker. She ran him off by threatening to use the weapon and called the police, who promptly charged her for possession of the weapon which was deemed unlawful. Everyone ignored the issue of her having the weapon on her person for self-defense outside the home. Instead, the state supreme court said the RKBA did not protect her possession of that particular weapon. Harkening back to the poor rationale used in U.S. v. Miller, they focused on the weapon alone, and that court somehow kept a straight face as it claimed the weapon is not protected because it was not one which was in existence at the time the Amendment was drafted. This not only ignored but went directly opposed to the rationale used in Heller—which at least had the merit of guaranteeing SCOTUS would hear this state court's attempted shot across its bow. SCOTUS took up the case. The entire SCOTUS bench mocked that argument, said the weapon did not need to exist when the Amendment was drafted, and reversed the conviction. It was a perfect opportunity to further address the RKBA outside the home, but they avoided addressing that issue since it was not necessary to decide the case. (BUT, had SCOTUS felt the RKBA did not protect firearm possession outside the home, SCOTUS would have dismissed the appeal by saying the right does not exist outside the home, and it would have never bothered to address whether the particular firearm is protected)

There are by my latest count 24 SCOTUS opinions which (in either the majority or the minority opinion) cite to D.C. v. Heller. The vast majority of which are not RKBA cases but merely cite Heller in support of broader legal concepts. The only significant decisions I see since Heller at the SCOTUS level are McDonald and Caetano (Which, by the way, has put an historical lid on the anti-gun-end-of-civilization-chicken-little-the-sky-is-falling-every-gun-law-is-doomed hysteria we heard from the anti-gun crowd when it became obvious the Heller decision was about to be released and that it would declare what we knew all along—the phrase “the right of the people” means “the right of the people”).

Lower courts, like the 9th Circuit in Young, have touched on the RKBA outside the home, but these cases have not ended up before SCOTUS. It takes time for the pressure to build to get a case before SCOTUS. For example, if different circuits take different positions on the same issue, then SCOTUS is always likely to take up one of the cases to put its foot down and re-impose uniformity across the land.

Now we did recently have another perfect test case which would have forced a decision on the issue of firearms outside the home. It was New York State Rifle & Pistol Assn., Inc. v. City of New York, 590 U.S.___ 18280 (2020). Here NY city law prevented a resident from taking his firearm from his home (where even NY has been forced to recognize it is specifically protected by Heller) to a shooting range outside the city for practice. Many, many cases ask for SCOTUS review, and the vast majority of them are denied a hearing. But here SCOTUS was quick to grant the writ to hear the case.

The national anti-gun movement saw the granting of the writ and became scared that this NY ban was going to cause a SCOTUS opinion expanding Heller outside the home. NY politicians got a lot of pressure to deal with the problem before SCOTUS could rule.

This was not an idle fear. They already believe the Court is currently packed against them, and for at least one of their friends and Heller dissenter—Justice Ginsberg—this case presented a particular problem. Long before Heller Ginsburg had written an opinion defining what the phrase “carries a firearm” means in a criminal statute. It was an otherwise ordinary criminal conviction appeal that did not have anything to do with constitutional guarantees. Nevertheless, justice Ginsberg decided to explain the statute’s phrase “carries a weapon” by comparing it to the language of the 2nd Amendment. Here is what she said:

Surely a most familiar meaning is, as the Constitution's Second Amendment (“keep and bear Arms”) (emphasis added) and Black's Law Dictionary, at 214, indicate: “wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.” Muscarello v. United States, 524 U.S. 125, 143 (199 (Ginsberg, dissenting)

It did not escape Scalia’s notice that she had said this in 1998 (in fact he joined her in that old dissent). When she chose in Heller to cast in her lot with those dissenters and doggedly claim the 2nd Amendment does not recognize and protect your ability to have so much as an unsharpened #2 pencil for self-defense, Scalia quoted her old dissent right back at her. Ginsberg then chose to do what most people do when confronted with their own hypocrisy—she simply ignored what she previously said.

And if this NY case were forced upon her, then she would have had to tell Dorothy to pay no attention to that (woman’s argument) behind the curtain again—this time with her old quote directly bearing on the specific issue of bearing arms outside the home.

So these anti-gun politicians did what felt they must do….to keep SCOTUS from ruling their transporting outside the home ban was unconstitutional they simply amended the statute to allow it. This forced SCOTUS to dismiss the case because the issue was now moot. It was an anti-gun political retreat to avoid the more consequential and larger defeat they saw coming.

IMO, the further development of the SCOTUS holdings on the RKBA boil down to this:

It is an ongoing border war—fought around the edges of Heller—where anti-gun politicians argue Heller is the end-all of the RKBA, where they continue to make and defend their gun restrictions, where pro-gun individuals and groups then target these laws for court review, and where anti-gun politicians then do everything they can to defeat the possibility of Court review.

 

In what regard, and how is it relevant to what is presently being discussed?

 

The law is sick and dying. It is often described as a joke and an ass, but it is seldom very funny.

"If the law supposes that," said Mr. Bumble, squeezing his hat emphatically in both hands, "the law is a ass - a idiot". Dickens

 

Greenwald stated that he assumed the felons had some compelling righteous justification for setting themselves up for long prison sentences to take down Trump.

He has since learned that the treacherous scum are just common low down Deep State crooks operating far beyond the reach of the law

 

anyone that voted for Trump voted Republican

 

Any time someone comes onto my private property uninvited I always have "immediate fear of death or serious injury"!

 

And you're saying that no dems voted for Trump?