Lautenburg amendment upheld.

[Travis Bickle]

Only as and when 2A is incorporated AND the level of scrutiny is defined will laws like the Lautenberg provisions be capable of constitutional challenge or amendment.

Lautenberg is a federal law, so incorporation has nothing to do with it.

 

[everallm]

Travis

Without incorporation there can be no level of scrutiny defined, without that Federal laws cannot be effectively challenged, with it defined it can.

 

[rscalzo]

And if you broke the "law" in 1956 before it was the law.?

The Lautenburg Amendment came in after that point but to answer your question, it is applied retroactivly. Such an event happened in NJ after the law came into effect.

 

[Travis Bickle]

The Lautenburg Amendment came in after that point but to answer your question, it is applied retroactivly.

Which is a violation of the ex post facto clause, even if the courts refuse to admit it.

 

[leadcounsel]

Froggy,
Your statement is naive, but forgivable. Please enlighten yourself before reposting.

The bottom line is that this "law" is an absurd law. We don't know what this guys original arrest (the one that attached Lautenberg) was for, but it's quite possible it was for a trivial offense and he disregarded it. Do you ever disregard stupid laws? EVER? What if speeding meant permanently losing your gun rights, and you were caught speeding.... Would YOU surrender your guns and live life as an unarmed serf?

I'm not advocating violence, but these types of unfair and draconian laws are the CAUSE of violent revolutions and it would not surprise me if this guy 'voted' for his cause in the near future.

I also suspect that the powers that be are intetionally eroding our 2A rights so that those who disagree cannot 'vote' effectively and become mere serfs.

 

[ConstitutionCowboy]

As to the Constitutionality of (or?) otherwise of Lautenberg in relation to 2A, wasn't asked, not part of the case.

There is precedent that goes back to Marbury v. Madison where the Court can not and did not adjudicate or act in accord with law that is not constitutional and wasn't asked to determine the constitutionality of the particular law. This court went ahead and adjudicated in accordance with unconstitutional law. Any time a case comes before the Court, or any inferior court, the constitutionality of whatever statute(s) is(are) pertinent should be determined to see if the Court(court) even has the power to adjudicate according to such law.

Woody

 

[Husker_Fan]

This is not a "sky is falling" opinion. The Supreme Court only addresses the questions presented to it. The defendant did not argue that the Lautenberg Amendment is an infringment of the 2nd Am., or that is, in his case, an ex post facto law. What he argued was that for an underlying offense to qualify for the Lautenberg Amendment, it must specifically relate to domestic violence (meaning the state stature says it has to do with domestic violence). The Supreme Court, reading the statute, only addressed that question, and they came to the conslusion that any violent misdemeanor committed in domestic relationship qualifies. In Hayes case, he was convicted of battery (a violent misdemeanor no matter who the victim is) against his wife.

Read C.J. Roberts' dissent. He agues about the punctuation of the statute to reach a different interpretation, not whether or not the amendment is constitutional. I would not expect the Supreme Court to adress the constitionality of the law since the lower court never did, and the defendant never asked any court to do so.

As said above, this decision is about the gramatical structure of the law, not its constitutionality. Keep in mind that the Court going beyond the issue in front of it to reach an ideological decision is the very definition of "judicial activism" whether we happen to like the result or not.

 

[sengel]

What about all of the cops who have been arrested for DV?

 

[EOD Guy]

I respectfully wholely disagree with the Supreme Court! Why is the 2A so frequently misunderstood??? Our forefathers felt it SOOO important they placed it second to speach and religion AND wrote "...shall not be infringed."

I agree with your thought, but RKBA was not originally the second ammendment. It was the fourth ammendment (of 12) in the proposed Bill of Rights.

The first two ammendments, which really didn't pertain to rights of the people or powers of the States, were not ratified and the numbering of the others moved up two spots.

The original second ammendment was reintroduced a couple of hundred years later and became the 27th ammendment in 1992.

See the link for a transcript of the original Bill of Rights as submitted to the States for ratification.

The Original Bill of Rights

 

[Travis Bickle]

What about all of the cops who have been arrested for DV?

There's no exception in Lautenberg for cops. When it was passed, a lot of cops lost their jobs and it was a big deal.

 

[Travis Bickle]

The first two ammendments were not ratified and the numbering of the others moved up two spots.

Just out of curiosity, what were they?

 

[EOD Guy]

Quote:
The first two ammendments were not ratified and the numbering of the others moved up two spots.

Just out of curiosity, what were they?

I edited my post above to link to a transcript of the original.

 

[Hanafuda]

those of you who do not believe this opinion has a specific and definite intent of broadening the scope of the creeping fed gun grab, consider this ... why, out of the thousands of appeals filed with the SUPCT each year, did the Court grant cert to this ridiculously criminal piece of trash? You think this was the only case seeking an appeal from the SUPCT on this issue?? If the court wanted to eliminate the Lautenburg amendment, or restrict its scope, they would've picked a more likeable defendant who had gotten screwed by the system. Instead, they picked a scumbag poster boy for why violent freaks shouldn't have guns. Slight of hand, SUPCT style.

The SUPCT's discretion over certiorari is the ultimate power over the law of this nation, and yet it receives little scrutiny.

 

[Travis Bickle]

those of you who do not believe this opinion has a specific and definite intent of broadening the scope of the creeping fed gun grab, consider this ... why, out of the thousands of appeals filed with the SUPCT each year, did the Court grant cert to this ridiculously criminal piece of trash?

It only takes four justices to grant certiorari and four justices voted against us in Heller, so this may not mean much.

 

[Husker_Fan]

Hanafuda,
I think you looking for a nefarious motivation where none exists. The primary reason the Supreme Court takes a case is to resolve a split in opinion between the lower appelate courts. In this case, the Fourth Circuit split with the consistent opinion of NINE other circuits on the interpretation of a clause that rests on the use of punctuation marks.

That is precisely the type of case the Court usually takes so that it can resolve a dispute and eliminate regional differences in the way a law is applied.

Currently there is no circuit split on the constitutionality of the Lautenberg Amendment. The Court will likely sit back and wait for a split to develop or for a clear consensus to form among the circuits that is contrary to the opinion of the majority of the justices.

The executive power may be wielded quickly (executive orders and the like), the legislative is slower (bicameralism and presentment are require to do much of anything), and the judicial branch moves at glacial speeds.

 

[Hanafuda]

I think you looking for a nefarious motivation where none exists.

perhaps. I won't deny I approach all analysis of governmental action with suspicion and a presumption against good faith motives. I prefer that mindset vs. believing everything I'm told about how the government works.

 

[Husker_Fan]

Another thing about the law, why (as in what legal reason) should the law be struck down?

Is it a 2nd Am. violation? I have a hard time arguing that CONVICTED wife beaters should be given the right to have guns. Heck, we take away civil rights from criminals all the time. It's called punishment.

Is it an ex post facto law? I think it could be considered one, but what would that mean for the laws that require convicted sex offenders to register, or prohibit them from living near schools or daycares? Should people convicted of sex crimes before such restrictions became law be subject to the restrictions?

 

[spartywrx]

There is a lot of uproar on this where folks really need to read the case before blowing off.

This case was not about the constitutionality or otherwise of the Lautenberg provisions.

This case was not a 2A case

The case was purely about the interpretation or mis-interpretation of the Lautenberg provisions when held against differing state provisions on what was or was not a "Misdemeanor Crime of Domestic Violence" MCDV.

In a nutshell, if an MCDV has occurred AND the case is then either pleaded down a similar but differently named offense, in this case West Virginia's simple battery statute, OR the offense of MCDV does not explicitly exist in the statutes of the state, does the offender get a pass?

The SC's ruling was that calling a violent wife beating toad a generically violent frog doesn't change the nature or offense of the toad.

As to the Constitutionality of otherwise of Lautenberg in relation to 2A, wasn't asked, not part of the case.

Only as and when 2A is incorporated AND the level of scrutiny is defined will laws like the Lautenberg provisions be capable of constitutional challenge or amendment.

^what he said.

The second amendment was not even mentioned in the ruling. It was more about defining what the charges were. It was NOT a challenge to the Lautenberg amendment, it was asking for a definition of said amendment.

 

[Travis Bickle]

Is it a 2nd Am. violation?

Yes. We do not strip people of their rights for a misdemeanor conviction, full stop.

I have a hard time arguing that CONVICTED wife beaters should be given the right to have guns.

You're sounding like Sarah Brady, here. Many of the people prohibited under Lautenberg are not "wife beaters" by any stretch of the imagination. Do you have any idea how many have lost their gun rights because they got into a heated argument with their wives, got thrown in jail for it, and then pleaded to what they thought was an inconsequential, minor misdemeanor just to have the whole thing over and done with? This law is netting more dogs than wolves.

If what these guys did was really that bad, it would be a felony, and they'd be prohibited anyway.

Heck, we take away civil rights from criminals all the time.

Yes, criminals. Not misdemeanants. There is a difference.

Is it an ex post facto law? I think it could be considered one, but what would that mean for the laws that require convicted sex offenders to register, or prohibit them from living near schools or daycares? Should people convicted of sex crimes before such restrictions became law be subject to the restrictions?

Yes. The constitution is very clear on that.

 

[Hanafuda]

Husker Fan wrote:

Is it a 2nd Am. violation? I have a hard time arguing that CONVICTED wife beaters should be given the right to have guns. Heck, we take away civil rights from criminals all the time. It's called punishment.

Well, I'm just repeating myself now from earlier in the thread ... but 1) the domestic violence conviction we're talking about that kicks in the gun ban is typically for a misdemeanor only, not a felony, 2) there doesn't have to be any physical contact to be convicted of a crime of domestic violence (i.e. assault), and 3) the victim of a crime of domestic violence isn't always a wife or girlfriend ... it can be your teenaged kid who didn't like getting yelled at.

I'm willing to concede a limitation on gun ownership for those convicted of VIOLENT FELONIES. Not to say I have no problem with it at all, but I can concede on that one. But for misdemeanors & non-violent felonies ... it's just backdoor gun control.

 

[PILMAN]

Wow, this is bad. My dad was charged with domestic violence back in 96 before that Lautenberg law came into affect, he was a gun owner too. If I recall, domestic violence involves spousal abuse, but yet he had a confrontation with the police verbally.

 

[PILMAN]

By the way, you don't have to be a "wife beater" to get convicted of domestic violence

http://en.wikipedia.org/wiki/Domestic_violence#Emotional_abuse

Merely causing emotional harm is grounds to lose your second amendment rights.

 

[Husker_Fan]

I don't like the Lautenberg amendment. I think it is bad policy. I think, as it is applied to people convicted before it was passed, it is an ex post facto law. I also don't think the current Court would feel that the federal government has the authority under the commerce clause to enforce such a law. I do think a state would be able to use such a restriction on a prospective basis if it wanted to.

As far as sounding like Sarah Brady, that is what I was going for. The arguments I put up are what are used to support the law. I noticed you didn't take issue with the assertion that a wife beater shouldn't have guns, but that the law doesn't do that well.

I'm not trolling, just trying to keep an interesting conversation going.

 

[Duke of Doubt]

Incorrect, Pilman. Under the Lautenberg Amendment the offense must be a crime of domestic violence. For example, in my state, the crime of Assault committed against a "family member" (which technically can mean a girl you slept with twenty years ago and slapped yesterday), is classified as a domestic violence assault, and Lautenberg applies. Merely yelling at your spouse MAY rise to the level of the crime of Disorderly Conduct, but Disorderly Conduct is NOT a crime of domestic violence and Lautenberg does not apply. Note further that in my state, mutual combat or fighting by mutual agreement is Disorderly Conduct and NOT Assault. Your state laws may vary, but I've never heard of a state where a verbal argument is considered a crime of domestic violence.

No, a verbal argument or humiliation does NOT lose you your gun rights.

 

[Hanafuda]

Duke,

I was a prosecutor for 5 years and recollect quite a few domestic assault convictions in which no physical contact took place. "Assault" means action which places another in "imminent apprehension of bodily harm" - that's a pretty standard, codified definition derived from common law. So as a prosecutor, you ask the victim if he or she believed the defendant was going to strike them, and if they say yes (and the judge or jury believes it), then guilty.

I also pleaded plenty of 'weak' domestic cases to simple assault, because the victim recanted and refused to testify (but the police officer wouldn't drop the complaint), or because it involved parental discipline gone a little overboard, and etc. The intention of the plea agreement was to take the case out of the 'domestic violence' arena. But under this ruling, all those people who pleaded to simple assault also lose their gun rights.