Minnesota appeals court rules domestic assault convict allowed to get gun permit

[Aim1]

Good.


No one should lose their rights over any misdemeanor conviction.



Although under the Lautenberg Amendment didn't SCOTUS rule that you could lose your 2nd Amendment rights over a misdemeanor Domestic conviction?





https://www.fox9.com/news/minnesota...tic-assault-convict-allowed-to-get-gun-permit

 

[Big_Al]

Im not sure i would give him any gun rights, not after 2 convictions for domestic assault.

 

[Aim1]

Im not sure i would give him any gun rights, not after 2 convictions for domestic assault.

No one should lose their rights over a misdemeanor.


If what he did was so bad it should be considered a felony.



The bar is extremely low for some domestic convictions.

 

[Dutchman01]

Im not sure i would give him any gun rights, not after 2 convictions for domestic assault.

One incident involved fighting with his brother. The other involved “no harm,” whatever that is. This some 10 years ago. I don’t agree with taking away his 2nd amendment rights.

 

[AlexanderA]

The problem with the Lautenberg Amendment, originally, was its retroactive nature. That is, someone might have pleaded guilty to DV misdemeanor charges, just to get the matter behind him, without having an inkling that down the road, this might have draconian consequences, such as being barred from gun possession for life. This was even worse for people in certain professions, such as the military or law enforcement, that required gun possession as part of the job. These people lost their careers as well.

Of course, everybody is on notice now, and has been for a number of years. A lawyer would be negligent in not advising his client of the adverse consequences. Accordingly, there are far fewer cavalier guilty pleas.

 

[Spats McGee]

A few thoughts come to mind:

(a) As far as I know, domestic violence is the only misdemeanor, a conviction for which operates to strip a defendant of a constitutional right;

(b) The terms assault and battery are not used in a particularly consistent manner across states, as far as I have ever been able to tell. That may be part of why his lawyer argued the "no harm" provision. For example, in Arkansas, assault and battery are separate crimes (though often charged together). In Arkansas, a person might be convicted of Assault on a Family or Household Member, or Domestic Battering, or both, but they are not the same crimes. Assault involves creating a fear of bodily harm, while Battering involves the actual injury. I've looked at some other states in the past and noticed that their definition of Assault includes physical injury. So that part is fairly state-specific.

(c) @AlexanderA is right in this:

The problem with the Lautenberg Amendment, originally, was its retroactive nature. That is, someone might have pleaded guilty to DV misdemeanor charges, just to get the matter behind him, without having an inkling that down the road, this might have draconian consequences, such as being barred from gun possession for life. This was even worse for people in certain professions, such as the military or law enforcement, that required gun possession as part of the job. These people lost their careers as well.

Of course, everybody is on notice now, and has been for a number of years. A lawyer would be negligent in not advising his client of the adverse consequences. Accordingly, there are far fewer cavalier guilty pleas.

A lawyer would be negligent for not advising a client of the 2A consequences of a domestic violence conviction at this point. Heck, AR has even made it a court obligation to notify the defendant:

A person who is convicted of any misdemeanor of domestic violence shall be notified by the court that it is unlawful for the person to ship, transport, or possess a firearm or ammunition pursuant to 18 U.S.C. § 922(g)(8) and (9), as they existed on January 1, 2007.

Ark. Code Ann. § 5-26-313 (West)

 

[wayneinFL]

Of course, everybody is on notice now, and has been for a number of years. A lawyer would be negligent in not advising his client of the adverse consequences. Accordingly, there are far fewer cavalier guilty pleas.

Yeah, but it doesn't really matter. My coworker had an adult stepson who took a swing at him. He wrestled his stepson to the floor, just to keep from getting hit. His wife came in just time to see him holding her son on the floor. Two witnesses against one, and it's just a misdemeanor.

It's not like multiple CSI vans came rolling up to process the scene and Perrry Mason closed the case in 30 minutes. There's no evidence. Two eye witnesses against one, and the cops regurgitating whatever the witnesses told them.

The average guy in that situation is going to give up his rifle and shotgun and pay the fine. At best he fights it and maybe gets convicted anyway.

 

[CapnMac]

not after 2 convictions for domestic assault.

A legitimate concern, but that may be more about whether a second conviction ought be as "mild" as a misdemeanor.

Perhaps the more correct approach would be to change the laws about repeat DV offenders, rather than permanently abridging their rights over a misdemeanor.

 

[230RN]

Arkansas General Assembly said:

A person who is convicted of any misdemeanor of domestic violence shall be notified by the court that it is unlawful for the person to ship, transport, or possess a firearm or ammunition pursuant to 18 U.S.C. § 922(g)(8) and (9), as they existed on January 1, 2007.

Ark. Code Ann. § 5-26-313 (West)

Shouldn't that be recited before the plea is entered?

A whole hell of a lot of good it does the defendant if he's formally notified of this after[ the conviction.

What am I misunderstanding? Is it due to something in the January 1st 2007 law?

Terry

 

[Spats McGee]

...Shouldn't that be recited before the plea is entered?

A whole hell of a lot of good it does the defendant if he's formally notified of this after[ the conviction....

Ideally, yes, but ... DB is a charge that gets you a public defender if you can't afford one. So, in theory, there's a lawyer already responsible for telling the defendant that. Also, if the defendant is told this after they plead, they'll very likely be allowed to withdraw the plea. If they go to trial, then they will have had a lawyer all along to have that discussion with them.

 

[230RN]

Ideally, yes, but ... DB is a charge that gets you a public defender if you can't afford one. So, in theory, there's a lawyer already responsible for telling the defendant that. Also, if the defendant is told this after they plead, they'll very likely be allowed to withdraw the plea. If they go to trial, then they will have had a lawyer all along to have that discussion with them.

But the way it it was quoted, all this is after the conviction anyhow.

Maybe it's to assure that the guilty one can't claim later that he did not know there was a lifetime proscription. I reckon I'm going to let this question go as one of the vagaries of the legal process.

 

[Madcap_Magician]

No one should lose their rights over a misdemeanor.

If what he did was so bad it should be considered a felony.

The bar is extremely low for some domestic convictions.

True but also totally untrue at the same time. This thinking is very popular on THR and gun forums everywhere - thinking that because I think A should be true, therefore policy B should be enacted, despite the fact that we do not live in a world where A is true. Should things that are bad enough to cause the loss of constitutional rights be felonies? Matter of opinion. If we could create our system from scratch, might be a good way to do it. But the reason we have the Lautenberg amendment is because we live in a legal system where it's actually quite possible to have a lengthy violent criminal record but no felony convictions. Beat your wife for years? Unless you did substantial bodily harm or got caught regularly, maybe you catch a conviction for misdemeanor domestic assault, maybe you plead it out to disorderly conduct.

The bar is the same for all criminal convictions. Proof beyond a reasonable doubt.

 

[Spats McGee]

But the way it it was quoted, all this is after the conviction anyhow.

Maybe it's to assure that the guilty one can't claim later that he did not know there was a lifetime proscription. I reckon I'm going to let this question go as one of the vagaries of the legal process.

Yeah, that's the way it's written. And yeah, it's a vagary.

 

[21H40]

Are there other forms of assault and battery that are only misdemeanors? If not, why is the bar so low for household violence? If so, why wouldn't they also be disqualifying for firearm possession?

It seems like the intent is to prevent hot-headed jerks from owning firearms - and I'm generally OK with that concept.

 

[Aim1]

Are there other forms of assault and battery that are only misdemeanors? If not, why is the bar so low for household violence? If so, why wouldn't they also be disqualifying for firearm possession?

It seems like the intent is to prevent hot-headed jerks from owning firearms - and I'm generally OK with that concept.

Yes. In Minnesota.

"The main difference between assault and battery is that assault can be the threat of physical harm, without someone actually being hit or harmed physically. Battery means someone was physically injured."


You could get convicted of assaulting your spouse, yelling at them/threating them.

 

[Spats McGee]

Are there other forms of assault and battery that are only misdemeanors? If not, why is the bar so low for household violence? If so, why wouldn't they also be disqualifying for firearm possession?...

Yes, many assaults and batteries are misdemeanors. You'd be shocked to see how much damage you can do to another human (at least in Arkansas) before you hit felony level. My best guess (and that's all I have) on why the bar is so low on domestics is that there are some societal factors at play that distinguish them from other forms of violence. (1) The victims are often reluctant to come forward for a variety of reasons. For the kids, need his income (and the defendant is almost always male), nowhere else to go & the house is in his name . . . (2) Because of #1, they're really hard to catch, and really hard to prosecute. Victims frequently come forward wanting to drop charges later. Now, whether "really hard to prosecute" should be a factor in determining punishment is a separate question, but increased penalties should (in theory) deter some of the bad behavior.

 

[230RN]

True but also totally untrue at the same time. This thinking is very popular on THR and gun forums everywhere - thinking that because I think A should be true, therefore policy B should be enacted, despite the fact that we do not live in a world where A is true. Should things that are bad enough to cause the loss of constitutional rights be felonies? Matter of opinion. If we could create our system from scratch, might be a good way to do it. But the reason we have the Lautenberg amendment is because we live in a legal system where it's actually quite possible to have a lengthy violent criminal record but no felony convictions. Beat your wife for years? Unless you did substantial bodily harm or got caught regularly, maybe you catch a conviction for misdemeanor domestic assault, maybe you plead it out to disorderly conduct.

The bar is the same for all criminal convictions. Proof beyond a reasonable doubt.

One of the reasons it's "popular" on gun forums is that there is no limitation on that right as expressed by our country's inventors. They were pretty sharp cookies and well aware of history. One of our Justices remarked that no right is absolute, and as I have pointed out, this remark does not grant carte blanche to limit rights unlimitedly --to be flip about it.

That Justice should have included some qualifications to his output. While he is technically right (incarceration, execution, e.g.) he should have had the judicial wisdom to qualify the remark. Crap, they're used to qualifying every utterance they make anyway.

In re allowing miscreants to continue, I have also addressed that in the form of variations of the "three strikes, you're out" formula in that every subsequent offense increases the penalty (by some formula of your choice --doubled tripled, whatever] until the miscreant is essentially totally kept out of society.... as his own choice of behavior.

And let's remember, the Second Amendment is just about the most concise restriction on government behaviors there is in the Constitution. There were 14 Amendments submitted to the Congress which expressed the desire to avoid misconstruction or abuse of rights by the government.

All 14 proposed amendments were debated and evaluated, and some (2) were eliminated. Only ten were adopted after additional wrangling and debate, thus finally being affirmed by Congress.

The Second was one of them.

Terry, 230RN

 

[CapnMac]

And, while we can agree that DV is a bad thing, one of the things all too often glossed over is that the Lautenberg Amendment was intended to be a "poison pill" for the Omnibus Appropriations Act of 1996.
It was dressed up in the clothes of being [good thing], but that's also the precise form of such a thing.

And, as it has been hanging around for more than twenty years, it has become a presumed fact of life. Which sore complicated things as we move along.

 

[jmorris]

The law should be the law. If the crime is serious, it should be reflected in the charge and subsequent conviction.

If they were trying to use previous convictions against him, citing Federal law and Federal law does not cover them. That is overreach and should be struck down.

Personally, I am getting tired of both too much and not enough “law enforcement” based on political feelings and not the law, as written.

 

[JERRY]

No constitutional right should be stripped away because of a misdemeanor or some felonies.

 

[WestKentucky]

There should be universal rules for reinstatement of rights. Let’s use this as an example. Dude fought his brother. How many of us have done the same, or a cousin… neighbor. It happens a lot, and police usually don’t end up involved. Dude gets in an argument with his wife and she gets scared when he gets loud…

Dude screwed up, ok. He probably agrees. He probably learned from it. He’s probably not the same guy he was 10 years ago. After X years of clean record reinstate rights. Why should an argument with your girlfriend when your 19 have any affect on you when you’re 30 and have kids, or 60 and have grandkids. Whole new world, whole new person. Off of drugs, new person. Recovering alcoholic, new person. Current law is stupid. Screw up at 18 and you’re labeled for life with no hope. Stupid.

 

[Poper]

All 14 proposed amendments were debated and evaluated, and some (2) were eliminated. Only ten were adopted after additional wrangling and debate, thus finally being affirmed by Congress.

The Second was one of them.

Not intending to be critical, just wanting to clarify as accuracy in history is important. To me, at least....
According to the National Archives:

The House passed a joint resolution containing 17 amendments based on Madison’s proposal. The Senate changed the joint resolution to consist of 12 amendments. A joint House and Senate Conference Committee settled remaining disagreements in September. On October 2, 1789, President Washington sent copies of the 12 amendments adopted by Congress to the states. By December 15, 1791, three-fourths of the states had ratified 10 of these, now known as the “Bill of Rights.”

https://www.archives.gov/founding-docs/bill-of-rights/how-did-it-happen

 

[shafter]

Depending on how the law is written domestic violence includes siblings such as a fight between brothers or a father and son, roommates, and current or former dating partners.

The violence can be something as small as throwing a sock at someone or brushing then as you walk out the door, all the way to real violence. Often it's one person's word against the other.

Not condoning violence of any sort but misdemeanor offenses should not result in a loss of constitutional rights.

 

[hoardingthemanual]

Im not sure i would give him any gun rights, not after 2 convictions for domestic assault.

Whole heartedly agree. Lotsa stories to excuse a rap sheet ITT. Soft on crime when it comes to things we want.

 

[12Bravo20]

Restraining orders/Protection orders also permanently bar people from possessing firearms. The big issue I have with restraining orders is that they are too easy to get and the person who the order is against has no real way to defend themselves in court. This is especially true when an emergency restraining order is granted.

I do agree that some people deserve to have a restraining order against them for being violent and should loose the right to possess firearms (for as long as the restraint is in force). The issue I have is it is way too easy for one party to get a restraining order against another person. And in general, judges will take the petitioner at their word and grant the order. I have seen way too many times where a vindictive exe gets a restraining/protective order just to mess with the other person.