7th Circuit Appeals Court: Lautenberg Amendment Unconstitutional

[divemedic]

In a 3-0 decision on Wednesday, the Seventh Circuit Court of Appeals ordered a trial judge to take a second look at the evidence that a 1996 federal law prohibiting anyone convicted of a "misdemeanor crime of domestic violence" is constitutional in light of a U.S. Supreme Court ruling last year that emphasized "the individual right to possess and carry weapons."


This is HUGE. The cracks are appearing, and we are on the verge of reclaiming our 2A rights.

 

[everallm]

Not unconstitutional quite yet but closer....

The really useful part is that case law is being built around 2A issues having to be reviewed in the context of at the least, Intermediate scrutiny.

The nasty person in me is saying that since Lautenberg et-al are so bound up with the health care bill this will probably pass them by until it becomes "old news"

So less chance of knee jerk hysteria about how we are going to be arming murderous felons who will promptly kill their significant others.......

No more on that or we move into the realms of politics.....

 

[divemedic]

Read the decision, there is some important stuff there.

[The Defendant] argued below and maintains here that prosecuting him under § 922(g)(9) for possessing the shotgun violates his Second Amendment right to bear arms for hunting. He has not, however, asserted a right to possess the gun for self-defense.

As such, the government’s application of § 922(g)(9) in this case requires less rigorous justification than strict scrutiny because the core right of self-defense identified in Heller is not implicated.

or this beauty:

No one questions the importance of the government’s interest in protecting against domestic-violence gun injury and death. The dispute here is about the fit between this important objective and § 922(g)(9)’s blanket ban on firearms possession by persons who have been convicted of a domestic-violence misdemeanor. Under intermediate scrutiny, the government need not establish a close fit between the statute’s means and its end, but it must at least establish a reasonable fit. The government has done almost nothing to discharge this burden. Instead, it has premised its argument almost entirely on Heller’s reference to the presumptive validity of felon-dispossession laws and reasoned by analogy that § 922(g)(9) therefore passes constitutional muster. That’s not enough.

 

[SMMAssociates]

IMHO/IANAL, my problems with Lautenberg are two:

It includes misdemeanors....

It's ex-post-facto....

Both could be considered infringements....

Then there's the hunting aspects....

The bill was a knee-jerk, and my understanding is that Lautenberg didn't figure it'd get passed, or that the courts would permit it.

Regards,

 

[DMF]

The issue of whether or not the Lautenberg amendment is "ex post facto" law has already been addressed repeatedly, and it's been determined that it is not.

The "ex post facto" argument against Lautenberg is a dead issue.

 

[ilbob]

This is HUGE. The cracks are appearing, and we are on the verge of reclaiming our 2A rights.

If by verge you mean another 2 or 3 decades, I think you could be right.

Really, it will all come down to level of scrutiny.

 

[SMMAssociates]

DMF:

Agreed that it's a dead issue, but IMHO, it's dead because the liberals killed it. No way should a minor violation of something or other ten years ago suddenly turn into a major infringement "today"....

The whole concept of ex-post-facto is that if you drove on a street at 35MPH xx years ago, and the speed limit was changed yesterday to 25MPH, there's no crime.... (Or, El Hefe can't say that "what you did yesterday is NOW illegal"....)

While nobody contests that these violations occurred, what's happened here is that extra punishment, generally beyond what was agreed to in the case of many of these misdemeanor convictions, were imposed at a later date. Not quite ex-post-facto, but close enough for Government work....

Just IMHO....

Regards,

 

[Zoogster]

So less chance of knee jerk hysteria about how we are going to be arming murderous felons who will promptly kill their significant others.......

Misdemeanors. Felons are already prohibited based on the GCA of 1968 and still would be without Lautenberg.

The hysteria would still be crazy. Lautenberg's Amendment is one of the more abused pieces of legislation. Often times mere accusations resulting in prohibition.

What do you do if significant other throws a tantrum or attacks you? Don't grab those wrists (which would likely bruise), that is battery and lifetime prohibition!
But what if they injure themselves and claim it was done by you? Still might be a lifetime prohibition.
It works against both males and females too. Psycho husband or ex-husband, or even ex-boyfriend wants to disarm a woman? Claim domestic abuse!

 

[HOME DEPOT GEORGE]

Does this mean that if you were convicted of a misdemeanor domestic say 20 years ago you can answer no on the 4473 form since the law was passed in 96?

 

[Jim K]

I love that statement that "no reasonable person could question..." or some variation thereof about a law or government action. The implication that anyone who questions any action by any government is not reasonable, and is thus insane. I can just hear some good Nazi carefully explaining that "no reasonable person could question the government's actions" in exterminating Jews.

P.S. They now want to ban purchase of guns by "terrorists." Good idea? Maybe, but the word "terrorist" would be defined by the government and would probably include just about all of us and anyone who questions the Divinity of the president.

Jim

 

[SMMAssociates]

George:

No.... Once a misdemeanant, always.... A lot of LEO's and Military took Misdemeanor DV convictions to quiet a nasty spouse, etc., rather than going to court. "$50 fine and keep on trucking" sort of thing.... Along came Lautenberg, years later, and they're boned.... (Expungement is mostly throwing money at lawyers, but what's happened here is similar to finding out that the speeding ticket you got in 1967 now disqualifies you from driving a car....)

Jim:

They've already tried to classify returning veterans, and most Conservatives, as terrorists....

Guess the good news is that some of the folks who voted for change have realized what change they're in line to get....

Regards,

 

[RDak]

It depends on State law whether or not the ban is for a lifetime. (I was just educated by a lawyer on this subject at the Michigan Gun Owners site.)

Here in Michigan, the statute for misdemeanor domestic violence charges, without incarceration, are in essence automatically "expunged" once the probation requirements are satisfied.

The Sixth Circuit analyzed our statute in relation to the Federal domestic violence statute and ruled Michigan's statute effectively expunges the misdemeanor charge for firearms ownership purposes. The person has his/her firearms rights restored at the completion of the misdemeanor, non-incarceration, probationary requirements.

http://openjurist.org/305/f3d/593/united-states-v-wegrzyn

 

[JeffKnox]

Just to toss in a couple of cents...

The Michigan situation is very interesting and potentially useful. Expungement isn't really involved though. Lautenberg says that if a state revokes civil rights for a misdemeanor crime of domestic violence and subsequently restores those rights, that the provisions of Lautenberg no longer apply. Since Michigan says that you can't vote while incarcerated - suspension of a basic civil right - and restores the right to vote once you are released from custody, Lautenberg is no longer applicable to Michigan DV misdemeanants once they complete their court ordered sentence and their right to vote is restored.
As to the ex post facto issue, I have argued since Heller that this is an issue which needs to be revisited. The courts concluded that possession of a firearm was simply an administrative issue and was not a "punishment" and so was not a problem. (Which is, of course, ridiculous. Those courts would never support a law which revoked driving privileges for anyone ever convicted of DUI or DWI. But I digress...) Since Heller finally established that the right to arms is a RIGHT, that changes the whole nature of the argument and it can no longer be suggested that it is merely an administrative issue. You can't administrate RIGHTS!
The important aspect in all of this is JUDGES! It is critical that we - supporters of liberty and the right to arms - actively and aggressively oppose the confirmation or election of any judge who has demonstrated or even suggested an inclination to rule against rights - EVER!
NRA and other rights groups sitting on the sidelines and not making a fuss when anti-gun judges are nominated for the Supreme Court or the federal bench is no longer acceptable. Such nominees must be fought and rejected.
That's what I think.
Jeff Knox
www.FirearmsCoalition.org

 

[tombarkley73]

you do not have a constitutional right to be protected by the police.

I personally believe that the federal courts really do not have a interest in reducing domestic gun violence, due to the fact that the supreme court ruled that there is no constitutional right for police protection, basically they said that it was are responsibility to protect our self. This is another reason gun control does more harm than good. Instead of just saying hey we just hate guns, they look at every opportunity to grab them. 7/15/05 SUPREME COURT OF THE UNITED STATES No. 04-278 TOWN OF CASTLE ROCK, COLORADO, PETITIONER v. JESSICA GONZALES, INDIVIDUALLY AND AS NEXT BEST FRIEND OF HER DECEASED MINOR CHILDREN, REBECCA GONZALES, KATHERYN GONZALES, AND LESLIE GONZALES
On June 27, in the case of Castle Rock v. Gonzales, the Supreme Court found that Jessica Gonzales did not have a constitutional right to individual police protection even in the presence of a restraining order. Mrs. Gonzales' husband with a track record of violence, stabbing Mrs. Gonzales to death, Mrs. Gonzales' family could not get the Supreme Court to change their unanimous decision for one's individual protection. YOU ARE ON YOUR OWN FOLKS AND GOVERNMENT BODIES ARE REFUSING TO PASS THE Safety Ordinance.

(1) Richard W. Stevens. 1999. Dial 911 and Die. Hartford, Wisconsin: Mazel Freedom Press.
(2) Barillari v. City of Milwaukee, 533 N.W.2d 759 (Wis. 1995).
(3) Bowers v. DeVito, 686 F.2d 616 (7th Cir. 1982).
(4) DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989).
(5) Ford v. Town of Grafton, 693 N.E.2d 1047 (Mass. App. 1998).
(6) Warren v. District of Columbia, 444 A.2d 1 (D.C. 1981).
"...a government and its agencies are under no general duty to provide public services, such as police protection, to any particular individual citizen..." -Warren v. District of Columbia, 444 A.2d 1 (D.C. App. 1981)

(7) "What makes the City's position particularly difficult to understand is that, in conformity to the dictates of the law, Linda did not carry any weapon for self-defense. Thus by a rather bitter irony she was required to rely for protection on the City of NY which now denies all responsibility to her."
Riss v. New York, 22 N.Y.2d 579,293 N.Y.S.2d 897, 240 N.E.2d 806 (1958).

(8) "Law enforcement agencies and personnel have no duty to protect individuals from the criminal acts of others; instead their duty is to preserve the peace and arrest law breakers for the protection of the general public."
Lynch v. N.C. Dept. of Justice, 376 S.E. 2nd 247 (N.C. App. 1989)

New York Times, Washington DC
Justices Rule Police Do Not Have a Constitutional Duty to Protect Someone By LINDA GREENHOUSE Published: June 28, 2005
The ruling applies even for a woman who had obtained a court-issued protective order against a violent husband making an arrest mandatory for a violation.

http://publicrights.org/Kennesaw/PoliceResponsibility.html (http://publicrights.org/Kennesaw/PoliceResponsibility.html)

 

[NMPOPS]

I would think that convictions prior to '96 would not count on the 4473 as most states did not have a specific DV law. You were charged with assault/battery but your criminal history would not show DV. New Mexico had to pass a new DV law then make sure officers charged properly.

 

[Husker_Fan]

The federal law applied even to a generic misedemeanor assault/battery conviction if the victim was a member of the household. The conviction does not have to be a specific DV charge.