Stay Tuned.

[MarcWinkman]

Well, I just put the wheels in motion (no pun intended) for the Delaware Superior Court to do a post Bruen assessment of 11 Del. C. sec. 1448(a)(9) which felonizes possession of a firearm and a controlled substance together.  We'll see if our bench comes out the same as the Fifth Circuit when it reviewed the federal counterpart in 18 U.S.C. Sec. 922(g)(3).

[Oaklandopen]

Maybe it's just me,  but I don't want someone handling a weapon who is under the influence of something

I do,  however,  appreciate the history and tradition standard of bruen and wish these circuit courts and state legislatures would fall in line.  I still can't believe the tantrum delaware and others went through,  and are probably going to continue to do this upcoming session

[slsharp]

"controlled substance" could be the prescription that you take,  or the little bit of "weed" that you might test positive for, or a beer.  I see this "felonization" as an excuse to remove your 2nd amendment rights.
Simon

[MarcWinkman]

Maybe it's just me,  but I don't want someone handling a weapon who is under the influence of something

I do,  however,  appreciate the history and tradition standard of bruen and wish these circuit courts and state legislatures would fall in line.  I still can't believe the tantrum delaware and others went through,  and are probably going to continue to do this upcoming session

Happily, my client was not under the influence of anything.  Just happened to be driving a car with a registration plate that was one day expired and when the police did an inventory search of the car since my guy's license was suspended due to failure to pay a ticket, they found a trace amount of controlled substance in a common area of the car.

[Oaklandopen]

I agree with all of that,  especially with something so vague that simple possession of both a gun and/or some kind of controlled substance WITHOUT being in commission of any crime still brings some kind of legal action.  I don't agree with that at all,  especially if an officer tries going on a fishing expedition after they pull you over for a tail light being out

But as for my original statement,  I still don't want to see anyone under the influence of something be it captain Morgan or crack with a gun.

[slsharp]

Well, the slippery slope here is, how does the possession of "drugs" have anything to do with a Constitutional right?  Why pick on the Second Amendment?  Why not the first, or third, or ______?   I think we know the answer, which is the anti-gun crowd will use ANY excuse to relieve you of your guns, and have no respect for the Constitution.

What should worry all of us are the mentally ill among us.  I know first hand of a person that if they were to get hands on a gun, would threaten and maybe kill someone while in one of their psychotic episodes, yet until they do, no action can be taken.  That's a fact. Delaware claims to have hot lines and help for the ill, but they are all intended to de-escalate a situation, nothing more.
Our jails are DeFacto mental institutions in this State.  The State Police have to deal with all situations, like it or not and are NOT (at least in my area) likely to take guns from legitmate owners.  I also know that for a fact.
Simon

[Oaklandopen]

Correct,  and I could care less about possession.  And the mental issue is also a huge problem but at the same time is ripe for abuse,  especially when dealing with "red flag laws"

Unfortunately the only clear choice seems to be a case by case basis but that takes too long and still depends on people being honest about things

[MarcWinkman]

There are a lot of issues with both "red flag" laws and the possession of a firearm and controlled substance.  With the former, it's ripe for abuse by anyone with an axe to grind, and it entirely sidesteps this thing called not being deprived of property without due process of law.  On the latter side, the rapidly changing landscape of what substances are prohibited under Title 16 demonstrates the capricious nature of the law.  Just because one possesses some substance, which could ostensibly be a controlled prescription that you've just picked up from the pharmacy, you are looking at the possibility of being charged with a felony because you also happen to have a firearm.

[Just Bill]

Yup!  One thing i have learned in my 81 years, politicians rarely write a law that takes in all the necessary "what-if's".  They write them to cover what they want, not considering, what if.  That is what keeps the Supreme Court busy.

[TwistedKarma]

Yes, that red flag law, scary if abused.

[MarcWinkman]

In quasi-related news, thanks to my providing Rigby v. Jennings to a colleague in my office, she was able to successfully argue the dismissal of a felony ghost gun charge against a client of hers at a preliminary hearing on Tuesday.  Time will tell if the AG's office elects to disregard the Court's dismissal and seek indictment of the charge notwithstanding the injunction against enforcement of the ghost gun prohibition.

[MarcWinkman]

Hilariously, Hunter is arguing that under United States v. Daniels.  I'm definitely going to stay plugged into that as it may have an impact on what happens with my client's case in Superior Court.

[MarcWinkman]

Quick update on the Daniels motion that I filed in Superior Court for one of my clients, it was scheduled for a hearing next Friday, but it seems the State has gone and made the hearing moot by dismissing all o the weapons charges in advance of the hearing removing the court's ability to adjudicate the questions presented.  Looks like I'll have to keep this in a back pocket for refiling on the next good test case that crosses my desk.

[Just Bill]

They know it violates the Constitution, but don't really want anyone to know that.

[MarcWinkman]

They know it for sure.  The timing of it is definitely indicative of that.  The deadline for the State to file its answer to my motion was Friday at noon.  I got the plea offer Thursday afternoon after the assigned prosecutor "consulted with the appeals unit".