PDA

View Full Version : Seventh Circuit Vacates Conviction for Gun Possession By Misdemeanant


Liberty1
11-18-2009, 4:36 PM
From the Volokh Conspiracy

Seventh Circuit Vacates Conviction for Gun Possession By a Misdemeanant Convicted of Domestic Violence, Remands for Further Proceedings (http://volokh.com/2009/11/18/seventh-circuit-vacates-conviction-for-gun-possession-by-a-misdemeanant-convicted-of-domestic-violence-remands-for-further-proceedings/)

Eugene Volokh • November 18, 2009 12:09 pm

From U.S. v. Skoien, decided today:


A grand jury indicted Steven Skoien for possessing a firearm after having been convicted of a misdemeanor crime of domestic violence in violation of 18 U.S.C. § 922(g)(9).... Skoien pleaded guilty but reserved his right to appeal [on Second Amendment grounds] the district court’s denial of his motion to dismiss the indictment....

The government has approached this case as though all it had to do to defend the constitutionality of § 922(g)(9) is invoke D.C. v. Heller’s language about certain “presumptively lawful” gun regulations — notably, felon-dispossession laws. Not so. Heller held that the Second Amendment secures an individual natural right to possess firearms for self-defense; the opinion’s reference to exceptions cannot be read to relieve the government of its burden of justifying laws that restrict Second Amendment rights. Although Heller did not settle on a standard of review, it plainly ruled out the deferential rationalbasis test; this leaves either strict scrutiny or some form of “intermediate” review. On the facts of this case, we hold that intermediate scrutiny applies. In its usual formulation, this standard of review requires the government to establish that the challenged statute serves an important governmental interest and the means it employs are substantially related to the achievement of that interest.

Skoien was convicted in state court of misdemeanor domestic battery and was placed on probation. About a year later his probation agent found a hunting shotgun in a truck parked outside his home. Skoien admitted he had gone deer hunting that morning and used the shotgun to kill a deer. He 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. Applying intermediate scrutiny, we ask whether the government has established that the statute is substantially related to an important governmental interest. 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. Accordingly, we vacate Skoien’s conviction and remand to the district court for further proceedings consistent with this opinion.

More thoughts on this, I hope, later today. Thanks to Miguel Larios for the pointer.

yellowfin
11-18-2009, 4:39 PM
It's all good when it isn't standing up to King Dick Daley.

jnojr
11-18-2009, 4:42 PM
He 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.

There is no "Second Amendment right to bear arms for hunting" and it's pretty scary that any such language might ever be in any way associated with a higher court ruling.

Liberty1
11-18-2009, 4:52 PM
There is no "Second Amendment right to bear arms for hunting" and it's pretty scary that any such language might ever be in any way associated with a higher court ruling.

Heller's dicta talks about a Right to bear arms for lawful purposes such as self defence and...hunting

Glock22Fan
11-18-2009, 4:53 PM
There is no "Second Amendment right to bear arms for hunting" and it's pretty scary that any such language might ever be in any way associated with a higher court ruling.

Apart from suggesting that taking part in a militia is one of a number of reasons why the right to keep and bear arms is a right, I don't remember the 2nd laying down any reasons that are valid, and none that are invalid.

Isn't the right to bear arms for hunting just as much a right as the right to bear arms for self defense, or even for plinking?

bodger
11-18-2009, 4:57 PM
Is the right to bear arms at all dependent upon the intended or implied use of the arms?

nobody_special
11-18-2009, 5:06 PM
Intermediate scrutiny... not good.

7x57
11-18-2009, 5:12 PM
There is no "Second Amendment right to bear arms for hunting" and it's pretty scary that any such language might ever be in any way associated with a higher court ruling.

I swear, I don't know if it's more frustrating to have to yell at hunters for not supporting black rifle shooters or the reverse.

In a way there is a secondary one, and you should be wary of losing sight of it. You also miss the fact that hunting is already legal, the question is whether the state can arbitrarily take away the ability to do it and not whether hunting should be legal at all.

The fact that Self Defense is the core of the right does not mean it is the entirety of the right. And the 2A is derived from the right in the English Bill of Rights of 1689, which states several conditions on the right, one of which is "self-defense."

The American version is notable for deleting all the conditions, and the only reason for doing so is that they do not limit the American legal right. Why would they do this? The answer is in the prefatory clause. "Well-regulated" meant "well-trained." How is the militia, every man from around 17 to around 45 (I think the former number may be a year or so off in the eighteenth century and I'm quoting the 1903 law), to be well-trained when the unorganized militia will rarely if ever do military drill? Because it is hoped they are proficient riflemen, practiced through civilian use of arms. Note that Thomas Jefferson recommended that boys hunt and shoot as exercise.

Thus the 2A secondarily protects the use of arms for "every lawful purpose," not because they are the primary usage in need of protection but because they promote it. When the NRA was founded in 1871 the reason was the same--to promote civilian marksmanship so that if a man needed to protect home or country he would already have certain skills.

But there is an even more practical reason you should be wary of the "every lawful purpose" goal. The right was explicitly limited to self-defense in England, and enforcement of the game laws became the avenue by which creeping incrementalism took it away completely. Even in the late eighteenth century American observers understood that this was happening--I've seen the quotes, though I'm not sure where now. It took two hundred more years, but it was taken completely in our lifetime.

The decision seems to have a reasonable take on that situation--the judge declined to apply strict scrutiny, as he indicated might be appropriate for self-defense, but did apply an intermediate level of scrutiny. That makes a kind of sense--the state does have an interest in preserving the game herds, but should not be able to arbitrarily deny someone the ability to hunt when it is already generally legal.

Perhaps someone can show that this is not how the law is supposed to work, but it doesn't appear inconsistent with what I observe from the outside.

The final issue relates to the maintenance of the gun culture. One of the most effective and enduring attacks on guns is to chip away at the legal uses of them, and I expect we'll see a greater emphasis on this in coming decades as an incorporated 2A becomes a stumbling stone to direct attacks. Each use which is denied means we lose active shooters whose connection to the 2A is gone, and in the long run we lose them as gun voters. Once you whittle it all away, self-defense itself is at its weakest because it has the least support.

Hunters probably singlehandedly saved the 2A in certain dark years, and in the future self-defense oriented handgun and rifle shooters will probably do the same with their greater urban penetration. Over the long term, each of those can be a single point of failure which, if missing, may allow gun-banners to push us over a tipping point where the slide cannot be stopped. A real 2A jurisprudence makes this less likely, but every aspect is a measure of insurance. The law alone does nothing without shooters passionate enough to fight for the rule of law itself.

Every. Single. Shooting. Sport. Must. Be. Protected.

They must all be protected for the same reason the founders deleted the self-defense limitation of the purpose. The only thing that will preserve the RKBA is an active, alert, shooting community which passes on the positive, constructive Anglo-American gun culture to children who also love the sport. We need every person who loves any one shooting sport, and we need them wise enough to stand behind every other gun owner in every other sport. Nothing short of that is good enough.

7x57

Shotgun Man
11-18-2009, 5:55 PM
So I guess the issue of incorporation doesn't come up because this is an instance of the feds violating the second amendment.

I think it's a terrific decision. If hunting rights implicate an intermediate level of review, then self-defense requires strict scrutiny.

It'll be interesting to see how this plays out on remand.

I wonder why the feds even get involved. Don't they have better things to do than harass a hunter?

MP301
11-18-2009, 6:58 PM
I would like to see the whole domestic misdemeanor prohibition get slapped down at some point. I know too many people who got screwed for life over this..some retroactively! Many were not even told that they would be screwed for life, they were told the 10 year Ca prohibition.

Heres what the BATFE says about the constitution problem of this law....

4. Is this provision of the law being applied retroactively in violation of constitutional rights?
No. This provision is not being applied retroactively or in violation of the ex post facto clause of the Constitution. This is because the law does not impose additional punishment upon persons convicted prior to the effective date, but merely regulates the future possession of firearms on or after the effective date. The provision is not retroactive merely because the person's conviction occurred prior to the effective date.

5. What is the penalty for violating this offense?
Any individual who knowingly violates this provision of the law is subject to a fine of $250,000, imprisonment of up to 10 years, or both.

http://www.atf.gov/firearms/domestic/qa.htm



Lutenburg is an idiot.....

hoffmang
11-18-2009, 10:21 PM
1. Hunting is one of the lawful purposes for which one has a right to keep and bear. Scalia said as much in Heller.

2. I think we see intermediate scrutiny here for two reasons. First, the reason that the misdemeanant wishes to keep arms is for hunting and not the core right of self defense. Second, he's in a violent category. He's not a felon, so it's not a presumptively lawful rule but it may hold up to intermediate scrutiny. However, this may mean that your crime of domestic violence has to be something more than pushing and shoving...

This is all good news.

-Gene

ilbob
11-19-2009, 6:41 AM
There is no "Second Amendment right to bear arms for hunting" and it's pretty scary that any such language might ever be in any way associated with a higher court ruling.

However, a court has now stated that in addition to a right to own guns for SD there is a right to own guns for hunting. Thats a good thing.

They also seemed to have it right that the core right to SD is what the 2A is about.

They also got it right that there is not really a good enough reason to strip people of their 2A rights solely on the basis of a minor offense that may have occurred many years ago.

I don't see any down side to this.

HkFan416
11-19-2009, 8:01 AM
I never really understood this law, I know the idea was supposed to be "for the greater good" but its a major F-up. Hell, if you get into a fight with your brother and hes living at your house, guess what? Domestic battery. It's even worse with the ex post facto bs....

Not to mention all of the peace officers that lost their jobs and livelihood over this issue.

wash
11-19-2009, 8:33 AM
I wonder what the ruling would have been if he claimed to keep the shotgun for self defense?

Would they apply strict scrutiny?

This looks great but it's only a circuit court, chances are our circuit and local courts will get it wrong until SCOTUS corrects them.

Theseus
11-19-2009, 3:34 PM
Sweet.

Don't believe that 626.9 prohibition is constitutional either. . . one of the benefits of incorporation for me is the ability to attack it.

I even believe that felons should not be barred ownership and possession in their own homes. Incorporation should help this for sure.

Untamed1972
11-19-2009, 3:56 PM
So could we see the automatic loss of gun rights for DV going away at some point?

Or at least a bear minimum of the 48hours to dispose of firearms just because some filed for a TRO? That one always bugged me......being forced to divest yourself of otherwise legal property with ZERO due process.

MP301
11-19-2009, 9:29 PM
Sweet.

Don't believe that 626.9 prohibition is constitutional either. . . one of the benefits of incorporation for me is the ability to attack it.

I even believe that felons should not be barred ownership and possession in their own homes. Incorporation should help this for sure.

I used to be against Felons legally having guns for any reason. But I have softened on this a bit. I guess it would depend on what the felony(s) were for....predatory Felons have nothing coming anyway....

hoffmang
11-19-2009, 9:49 PM
So could we see the automatic loss of gun rights for DV going away at some point?

Or at least a bear minimum of the 48hours to dispose of firearms just because some filed for a TRO? That one always bugged me......being forced to divest yourself of otherwise legal property with ZERO due process.

Two seperate issues. If you are actually violent in a "domestic violence" situation, I think you're likely to lose your gun rights. However, up and until you've been ruled actually violent, your gun rights are real. If you weren't actually violent - but were otherwise confrontational and even minorly assaultive - you may be able to keep your gun rights.

-Gene

hardrivr
11-19-2009, 10:15 PM
This is a great read... I look forward in helping out where I can...

kcbrown
11-19-2009, 11:17 PM
I used to be against Felons legally having guns for any reason. But I have softened on this a bit. I guess it would depend on what the felony(s) were for....predatory Felons have nothing coming anyway....

I'm of the opinion that if, after serving their time and being released, someone isn't considered fit to exercise the entire set of rights they have, then society has no business releasing them.

If they don't have a right to firearms, why would you trust them with any sort of weapon? You wouldn't. But the fact that you're releasing them means that you're trusting them to not avail themselves of a weapon. If you can't trust them to properly handle a weapon once they've acquired it, why would you trust them to not attempt to acquire one? You wouldn't, right?

Taking that line of reasoning to its logical conclusion, it follows that if you don't trust someone to exercise all the rights that all members of society are supposed to have, then you shouldn't release them back into society at all.

Telperion
11-20-2009, 7:47 AM
Two seperate issues. If you are actually violent in a "domestic violence" situation, I think you're likely to lose your gun rights. However, up and until you've been ruled actually violent, your gun rights are real. If you weren't actually violent - but were otherwise confrontational and even minorly assaultive - you may be able to keep your gun rights.

-Gene
I don't understand where this is going. The criminal justice system is there to determine guilt, not whether someone is "violent". Are you sure the courts are actually going to want to get involved in drawing these lines?

wash
11-20-2009, 8:26 AM
I'm of the opinion that if, after serving their time and being released, someone isn't considered fit to exercise the entire set of rights they have, then society has no business releasing them.

If they don't have a right to firearms, why would you trust them with any sort of weapon? You wouldn't. But the fact that you're releasing them means that you're trusting them to not avail themselves of a weapon. If you can't trust them to properly handle a weapon once they've acquired it, why would you trust them to not attempt to acquire one? You wouldn't, right?

Taking that line of reasoning to its logical conclusion, it follows that if you don't trust someone to exercise all the rights that all members of society are supposed to have, then you shouldn't release them back into society at all.
In general I agree with you but this isn't a perfect world and we can't just imprison people until they are ready to responsibly exercise their rights.

I see firearm prohibition as a punishment just like their jail sentence.

There should definitely be a process available for truly rehabilitated felons to restore their rights and possibly certain felonies that don't carry the punishment at all but I do think there will always be prohibited people.

inbox485
11-20-2009, 1:16 PM
I used to be against Felons legally having guns for any reason. But I have softened on this a bit. I guess it would depend on what the felony(s) were for....predatory Felons have nothing coming anyway....

As the 2A is written there is no justification to deny felons guns. I don't think the founding fathers intended it that way. I think the founding fathers intended anybody too dangerous to own a gun to be executed or imprisoned. The fact that tying your shoelace the wrong way is a federal felony (yes I'm serious - a shoelace is a machine gun under per the ATF) is a prime reason the 2A doesn't say except for people labeled "felon" by the government.

I do find it interesting that it is the same mental group that thinks felons should roam the streets, felons shouldn't have guns, and just to make sure felons don't get guns, the rest of society shouldn't have guns either.

hardrivr
11-20-2009, 1:55 PM
In general I agree with you but this isn't a perfect world and we can't just imprison people until they are ready to responsibly exercise their rights.

I see firearm prohibition as a punishment just like their jail sentence.

There should definitely be a process available for truly rehabilitated felons to restore their rights and possibly certain felonies that don't carry the punishment at all but I do think there will always be prohibited people.

wash... I agree with you 100%, but if the state elects to give back certain rights, such as voting how can they justify keeping other rights away?

wash
11-20-2009, 2:10 PM
There are a lot of problems with what I'm about to write but:

No one has ever been killed with a ballot.

7x57
11-20-2009, 2:21 PM
There are a lot of problems with what I'm about to write but:

No one has ever been killed with a ballot.

I would say that the German election of 1932 was extraordinarily lethal.

7x57

yellowfin
11-20-2009, 2:23 PM
Two seperate issues. If you are actually violent in a "domestic violence" situation, I think you're likely to lose your gun rights. However, up and until you've been ruled actually violent, your gun rights are real. If you weren't actually violent - but were otherwise confrontational and even minorly assaultive - you may be able to keep your gun rights.

-GeneIt sounds like there needs to be another category or term for nonviolent domestic disruption. Domestic violence is a pretty ugly label to get slapped with if it isn't in fact violence. Even if you get to keep your guns for the moment being I can't see many employers looking too kindly upon such a mark on a person's record. People get turned away from jobs these days for far less than that.

wash
11-20-2009, 2:29 PM
I would say that the German election of 1932 was extraordinarily lethal.

7x57
That's one of the problems but it's rather indirect and one vote either way wouldn't have changed a thing.

I think juries get ballots too (but I'm pretty sure felons don't get called for jury duty).

7x57
11-20-2009, 2:46 PM
Two seperate issues. If you are actually violent in a "domestic violence" situation, I think you're likely to lose your gun rights. However, up and until you've been ruled actually violent, your gun rights are real. If you weren't actually violent - but were otherwise confrontational and even minorly assaultive - you may be able to keep your gun rights.


Isn't this essentially a question of level of scrutiny? Perhaps I don't know enough to guess, but it seems that the issue is whether the state can show that your conviction constitutes the kind of evidence of state interest sufficient for interfering with the right, and also the appropriate level of review. I'm guessing the level of review would be less than whatever it is for a law-abiding citizen, but anything above rational basis would eliminate the worst of these disarmament laws.

I'm basing that on a half-remembered case I saw on Volokh where a judge said that disarmament without review or appeal for someone merely charged with a crime unrelated to violence (possession of kiddie porn, I think) wasn't sufficient. It sounded like the judge was saying that under any reasonable post-Heller level of review, the law was too arbitrary and too unconnnected to the crime to pass.

This game of reverse-engineering the law without sufficient knowledge is kinda fun. :D

7x57

hardrivr
11-20-2009, 3:39 PM
That's one of the problems but it's rather indirect and one vote either way wouldn't have changed a thing.

I think juries get ballots too (but I'm pretty sure felons don't get called for jury duty).

Per LA Superior court:

To qualify for jury duty, you must:

1. Be a citizen of the United States;

2. Be able to read and understand basic English;

3. Be a resident of the County of Los Angeles;

4. Be at least 18 years old; and

5. Not have been convicted of a felony or malfeasance in office. (If your rights have been restored by a pardon, or your record has been expunged, you may serve on a jury if you are otherwise qualified)

Theseus
11-20-2009, 3:52 PM
Isn't this essentially a question of level of scrutiny? Perhaps I don't know enough to guess, but it seems that the issue is whether the state can show that your conviction constitutes the kind of evidence of state interest sufficient for interfering with the right, and also the appropriate level of review. I'm guessing the level of review would be less than whatever it is for a law-abiding citizen, but anything about rational basis would eliminate the worst of these disarmament laws.

I'm basing that on a half-remembered case I saw on Volokh where a judge said that disarmament without review or appeal for someone merely charged with a crime unrelated to violence (possession of kiddie porn, I think) wasn't sufficient. It sounded like the judge was saying that under any reasonable post-Heller level of review, the law was too arbitrary and too unconnnected to the crime to pass.

This game of reverse-engineering the law without sufficient knowledge is kinda fun. :D

7x57

I believe that you are right.

Does prohibiting a person convicted of domestic violence reduce domestic violence or only domestic violence with a gun?

And perhaps is it reduced enough by the prohibition to warrant the prohibition as more than likely to prevent or reduce crime than not.

So, if a 100% prohibition of a firearm to persons convicted of domestic violence means a reduction in only 5% of domestic violence with a gun then I think it could be easily argued that the prohibition does not adequately meet the interests of the State vs the individuals right to keep and bear.

bigstick61
11-20-2009, 3:57 PM
There are a lot of problems with what I'm about to write but:

No one has ever been killed with a ballot.

Not true in the least. The ballot has been responsible for the death of tons of people; the sorts of atrocities that governments or majorities have committed under the guise of democracy ae quite terrible to say the least, although it is the natural conclusion of democracy (if Plato were alive today he'd have many opportunities to tell people, "I told you so.").

Personally, I only think certain types of felonies should result in loss of firearms rights as a part of the sentence, and it should never be done for any sort of misdemeanor or infraction; for things like parole or probation I would say the same if the crime was not such where loss of firearms rights could become a part of the sentence. I also think that the really serious (especially violent) felonies should result in harsher treatment, with a more liberal use of the death penalty (armed robbers, rapists, some arsonists, etc. used to get it in the States for their crimes) and long-term sentences; the term felony should really be limited to things that are quite serious in nature, as was originally the case. Something like being in unlawful possession of a machine gun (which shouldn't be a crime at all) should be more of a misdemeanor.

inbox485
11-20-2009, 4:09 PM
Personally, I only think certain types of felonies should result in loss of firearms rights as a part of the sentence, and it should never be done for any sort of misdemeanor or infraction; for things like parole or probation I would say the same if the crime was not such where loss of firearms rights could become a part of the sentence. I also think that the really serious (especially violent) felonies should result in harsher treatment, with a more liberal use of the death penalty (armed robbers, rapists, some arsonists, etc. used to get it in the States for their crimes) and long-term sentences; the term felony should really be limited to things that are quite serious in nature, as was originally the case. Something like being in unlawful possession of a machine gun (which shouldn't be a crime at all) should be more of a misdemeanor.

I still say the only two types of crime that should limit gun ownership are the ones that result in the death penalty and the ones that result in life without possibility of parole. The gap should be closed from the other end.

anthonyca
11-20-2009, 4:52 PM
I know of some one who just lost a motion to vacate for being lied to by his attorney about the repercussions on his scone amendment rights, both state and federal. He has a signed letter from his attorney dated after e plea
was entered stating how it "occurred" to her that he plea she entered with out him in court would destroy his gun rights. He was 19 and in he ARMY reserve. Lautenberg has to go. If it is allowed to stand his is how more rights will be chipped away.

Does anyone know of a gun rights or hell, ECM ACLU type orginzation that would assist on the appeal?

I would like to see the whole domestic misdemeanor prohibition get slapped down at some point. I know too many people who got screwed for life over this..some retroactively! Many were not even told that they would be screwed for life, they were told the 10 year Ca prohibition.

Heres what the BATFE says about the constitution problem of this law....

4. Is this provision of the law being applied retroactively in violation of constitutional rights?
No. This provision is not being applied retroactively or in violation of the ex post facto clause of the Constitution. This is because the law does not impose additional punishment upon persons convicted prior to the effective date, but merely regulates the future possession of firearms on or after the effective date. The provision is not retroactive merely because the person's conviction occurred prior to the effective date.

5. What is the penalty for violating this offense?
Any individual who knowingly violates this provision of the law is subject to a fine of $250,000, imprisonment of up to 10 years, or both.

http://www.atf.gov/firearms/domestic/qa.htm



Lutenburg is an idiot.....

kcbrown
11-20-2009, 7:17 PM
In general I agree with you but this isn't a perfect world and we can't just imprison people until they are ready to responsibly exercise their rights.

I see firearm prohibition as a punishment just like their jail sentence.

There should definitely be a process available for truly rehabilitated felons to restore their rights and possibly certain felonies that don't carry the punishment at all but I do think there will always be prohibited people.

But what's the point of releasing such a person back into society? If they can't be trusted to properly exercise their 2A rights, then they can't be trusted to refrain from obtaining a gun and using it illegally. And the same is true not of just a firearm, but of any deadly weapon.

Someone who isn't fit to exercise his 2A rights is, simply, too dangerous to be released back into society. I don't see how it could be any other way.

So are you proposing that such people be released back into society anyway? In a way, that is what we have now.

I'm not saying that a system like what I've got in mind is likely to happen, but if it is to happen then the first step towards that is getting people to recognize the folly of the current system. What we have right now is, in my opinion, both an affront to the Constitution and riskier than it should be, all at the same time.

wash
11-20-2009, 8:39 PM
That will never happen.

Prisons make better criminals. Unless you can toss everyone in there and throw away the key, most people who get out of prison will not be good upstanding citizens.

There are also horrible people out there that never wind up in prison.

The system we have is based on deterrents. Do X crime do X time. If it isn't fair, at least it tries to be consistent.

Your ideal system is entirely arbitrary.

Theseus
11-20-2009, 9:16 PM
We can get into discussions all day about what makes a criminal a criminal and how prisons make them better criminals, but the one thing that is certain is that peoples rights should only be taken in extreme person by person and case by case basis.

There should be no blanket prohibition, even felony.

anthonyca
11-20-2009, 9:33 PM
I believe that many people would be suprised at just how easy it is to be banned for ever. I can't find it here with my phone but 3
of the 4 curcuit courts that have heard arguments have ruled that ANY contact constitutes a life time gun ban, even diminimus or accidental.

BATFE memo says if the police report says you acted with boisterousness or were being excessively loud while being arrested in a DV situation for disorderly conduct, lifetime ban for you. That goes back to the violence court ruling but who has the money to get that far?

wash
11-20-2009, 10:08 PM
We can get into discussions all day about what makes a criminal a criminal and how prisons make them better criminals, but the one thing that is certain is that peoples rights should only be taken in extreme person by person and case by case basis.

There should be no blanket prohibition, even felony.
I do believe there should be prohibitions for certain felonies regardless of the circumstances of the case.

For example, bank robbery. I don't think it should matter if a person holds the place up with a gun or if the person just grabs a sack of nickels while the armored car driver isn't looking.

Every one knows that robbing a bank is illegal and anyone dumb enough to try it should suffer the consequences.

DV is a whole other ball of wax because misdemeanors trigger a prohibition and there is bias in the enforcement (how many females are charged with DV and how many males charged with DV were just defending themselves?).

kcbrown
11-20-2009, 11:30 PM
I do believe there should be prohibitions for certain felonies regardless of the circumstances of the case.

For example, bank robbery. I don't think it should matter if a person holds the place up with a gun or if the person just grabs a sack of nickels while the armored car driver isn't looking.

Every one knows that robbing a bank is illegal and anyone dumb enough to try it should suffer the consequences.


Except that the consequences should be the amount of time in incarceration, or the amount of community service required, or something of that sort. In other words, something that the perp is going to care about a lot more than whether or not he will be able to exercise his 2A rights when he gets out. After all, the purpose of these things is to act as a deterrent, right?

And it absolutely should not be something that is permanent, particularly if it's really a right like 2A is.


The reason the current system is considered "acceptable" is that the population is, by and large, currently disarmed, so there is the perception that the people need "protection" from convicted felons. With a full restoration of 2A, that problem should go away, as should the "need" for the current "protection".

Theseus
11-20-2009, 11:51 PM
I do believe there should be prohibitions for certain felonies regardless of the circumstances of the case.

For example, bank robbery. I don't think it should matter if a person holds the place up with a gun or if the person just grabs a sack of nickels while the armored car driver isn't looking.

Every one knows that robbing a bank is illegal and anyone dumb enough to try it should suffer the consequences.

DV is a whole other ball of wax because misdemeanors trigger a prohibition and there is bias in the enforcement (how many females are charged with DV and how many males charged with DV were just defending themselves?).

I strongly disagree.

A person that robs a bank with a note is not the same as someone that uses a gun.

But the real issue I have is that the only reason someone should be deprived the right to keep and bear is if the person is more than likely a danger to themselves or others with a firearm.

hardrivr
11-21-2009, 8:29 AM
These are the current misdemeanors that hold a lifetime ban regardless..

Assault with a firearm (§§ 12021(a)(1), 12001.6(a).) ((SO YOU CAN ASSAULT SOMEONE WITH A KNIFE, BOW, OR ANYTHING ELSE IN THE WORLD AND GET YOUR RIGHT TO OWN AGAIN IN 10 YEARS, WHY THE DIFFERENCE... I MEAN YOUR NOT LIMITED TO USING A FORK AND SPOON TO EAT WITH THE REST OF YOUR LIFE?))

C Shooting at an inhabited or occupied dwelling house, building, vehicle, aircraft, misdemeanors or camper (§§ 246, 12021(a)(1),
12001.6(b).) ((KIND OF A STUPID THING TO TO ANYWAYS, BUT A LIFETIME?))

C Brandishing a firearm in presence of a peace officer (§§ 417(c), 12001.6(d), 12021(a)(1).) ((AGAIN STUPID THING TO DO, BUT WHEN YOU GET BACK YOUR VOTING RIGHTS, JURY DUTY RIGHTS... WHY NOT THE RIGHT TO ARM YOURSELF... YOU PAY TAXES TO SUPPORT YOUR COUNTY, STATE AND COUNTRY, SO WHY SHOULD YOU LOSE RIGHTS?))

C Two or more convictions of 417(a)(2) (§ 12021(a)(2).)
* A “misdemeanor crime of domestic violence” (§§ 18 U.S.C. 921(a)(33)(A), 18 U.S.C. 922(g)(9).) ((OKAY TO ME, IF YOU HAVE A HISORY OF DOING THINGS... THEN MAYBE IT WOULD BE TIME TO HAVE LIMITED RIGHTS))

But other than that, I agree if you can be trusted in society, then why take the right to arm against you? Again if you're a repeat offender, then thats where things scary and then you should have some limites removed, but again I too feel that if you're a criminal then you're going to be a criminal and if the state or feds remove your gun rights, you're going to get guns anyways... but if you make a mistake ONCE in your life then these limits are extreme. Again, these are the crime of doing a "wobbler" offense that is charged as a misdemeanor... and your right is removed FOREVER!

Shotgun Man
11-21-2009, 9:25 AM
I do believe there should be prohibitions for certain felonies regardless of the circumstances of the case.

For example, bank robbery. I don't think it should matter if a person holds the place up with a gun or if the person just grabs a sack of nickels while the armored car driver isn't looking.

Every one knows that robbing a bank is illegal and anyone dumb enough to try it should suffer the consequences.

DV is a whole other ball of wax because misdemeanors trigger a prohibition and there is bias in the enforcement (how many females are charged with DV and how many males charged with DV were just defending themselves?).

Grabbing the nickels while the armored car driver isn't looking probably is not a robbery which involves taking property by means of force or fear so much as it is a simple theft.

Society condemns robbery over simple theft because because it is more dangerous and scary.

10TH AMENDMENT
11-21-2009, 10:26 AM
1. Hunting is one of the lawful purposes for which one has a right to keep and bear. Scalia said as much in Heller.

2. I think we see intermediate scrutiny here for two reasons. First, the reason that the misdemeanant wishes to keep arms is for hunting and not the core right of self defense. Second, he's in a violent category. He's not a felon, so it's not a presumptively lawful rule but it may hold up to intermediate scrutiny. However, this may mean that your crime of domestic violence has to be something more than pushing and shoving...

This is all good news.

-Gene

BANG! You nailed it right there, Gene. The Feds are required to provide a substantive nexus between the conduct that constituted the domestic violence conviction, and the deprivation of the individuals fundamental right to keep and bear arms.

This will ensure that the Feds (putative) important governmental interest (prevention of gun violence in domestic relations) is substantially related to the means by which it achieves the prevention of gun violence in domestic relations (depriving the person convicted under the statute from his fundamental 2nd amendment rights).

So, unless the statutorily prohibited conduct the individual was convicted of involved the use, or expressed or implied threat to use a firearm to consummate the conduct, no can do.

Of course, the Feds actually have no enumerated/implied/necessary and proper constitutionally established "Police Power" to even be regulating in this area in the first place, but that is a constitutional challenge that I personally hope comes sometime in the near future.

Shotgun Man
11-21-2009, 10:51 AM
In California, a simple battery costs one's 2A right for ten years. A battery is not even a crime of moral turpitude.

However, in a post-incorporation world, CA would justify this prohibition in the same manner the feds will on remand in this case.

They would say a person convicted of DV has shown a willingness to engage in unwarranted violence. This justifies the need for the state to deprive him of his right to a weapon.

I think the problem with the case was that the feds never attempted to justifiy the statute.

My own personal opinion is that only felons at common law should be deprived of 2A rights. Nowadays, govs call the most innocuous of offenses felonies, thereby undermining the 2A, to the point that some day it may be a felony to litter.

GrizzlyGuy
11-21-2009, 11:20 AM
But the real issue I have is that the only reason someone should be deprived the right to keep and bear is if the person is more than likely a danger to themselves or others with a firearm.

I agree in principle, but CA laws make that subject to abuse by the state (as in this case, for example) (http://www.calguns.net/calgunforum/showpost.php?p=2722519&postcount=32). If a LEO decides, all by himself, to take you in on a 5150 he is required to confiscate your firearms (http://law.onecle.com/california/welfare/8102.html). They can keep them for 30 days, and longer if they petition the court. All of this on the word of a single LEO, no court involvement, no due process. Add the time it takes to get the release forms back from DOJ and you've lost RKBA for a significant amount of time.

If the LEO further claims that you are a danger to yourself or others, and the hospital intake person agrees, you now have a 5-year prohibition (http://law.onecle.com/california/welfare/8103.html), even if they release you a few hours later. The hospital person is likely to 'play it safe' and go along with the LEO. No court involvement, no due process, although the law allows you to petition the court for relief of the prohibition. That takes time and money (pay a lawyer) and not everyone has the means to pay a lawyer.

The restraining order (http://law.onecle.com/california/civil-procedure/527.9.html) and protective order (http://law.onecle.com/california/family/6389.html) laws are subject to abuse by the state as well, as judges often grant those based on a claim from a single individual without requiring additional evidence or corroboration. Bang, there goes your RKBA for the duration of the order, plus the additional wait-for-DOJ-release time.

anthonyca
11-22-2009, 12:15 AM
1. Hunting is one of the lawful purposes for which one has a right to keep and bear. Scalia said as much in Heller.

2. I think we see intermediate scrutiny here for two reasons. First, the reason that the misdemeanant wishes to keep arms is for hunting and not the core right of self defense. Second, he's in a violent category. He's not a felon, so it's not a presumptively lawful rule but it may hold up to intermediate scrutiny. However, this may mean that your crime of domestic violence has to be something more than pushing and shoving...

This is all good news.

-Gene

Your comment about a mcdv may have to be more than pushing and shoving is interesting. In this case in the ninth circuit http://www.ncdsv.org/images/Effect%20of%20US%20v%20Nobriga%20on%20922g9%20pros ecutions.pdf the ruling was that it had to ba willful act and court records not just charges had to reflect that fact.

In the Belleses case in the 9th http://www.altlaw.org/v1/cases/1127004 the court ruled that since the federal lautenberg amendment uses force and threatened use of a deadly weapon in the same sentence, pushing and shoving or grabbing is not enough force to trigger lautenberg. They even use an example of pres Nixon jabing his finger into the russian president's chest. That is more offensive than what many people have been arrested for and been banned by lautenberg.

The court came to these rulings since the Hawaiian and Wyoming statutes are expansive and also include minor contact and reckless contact. In the Wyoming case I linked above the record stated the husband grabbed his wife by the throat and pushed her up against a car and that was not enough force.

This brings an interesting problem for a californian I know. He plead to 242 battery for even less contact with no pushing because his attorney, who was a former ADA told him any offensive or unwanted touching was battery in CA.

He was dating the woman but never cohabitated and no children together so he does not meet the lautenberg definition of DV. PFEC came back ineligable and cal doj says it was because fed lautenberg (it's been over 10
years for CA law). All the case law and govt prosecution guides we can find state that they have to have cohabitated to meet the similarly situated clause
of lautenberg. They always had separate residence.

He even filed a motion to vacate his plea due to his attorney telling him this would not harm his ARMY reserve carrer, he still has signed letters from his attorney dated after she entered his plea that he would loose his state rights. He never appeared in court or saw the judge and the docket supports this. His attorney kept telling him it was procedural nonsense and he
did not have to miss work to appear. He was 19 and gullable.

When the motion to vacate the plea,which is common for non citizens to have granted to stop a deportation, was denied by the judge he stated on the record that the defendant and his attorney were correct but it was just too much of an impact on past pleas involving the loss of second amendment rights for him to rule in his favor. The DA never even looked at the motion until that day so she said the people had no objection. The judge continued and asked the DA to look deeper as this was very serious (GUNS!!!!!). Ofcourse at the next court date the DA was strongly opposed and his motion was denied along with his and many others second amendment rights. The judge said this would require anyone loosing second amendment rights to be advised of this before entering a plea or the boykin/tahl forms to be changed.

How can he know that he will not be charged by the Feds if he buys a gun?

This former soldier was really screwed. The judge even admitted it but he didn't want to risk having other pleas thrown out.

Can he own a firearm? One PFEC came back yes and one no. The people at the DOJ give him different answers and know less then he does. He has talked to many good lawyers and learned a lot but no real clear answer that he will nit be charged.

Theseus
11-23-2009, 12:26 PM
I agree in principle, but CA laws make that subject to abuse by the state (as in this case, for example) (http://www.calguns.net/calgunforum/showpost.php?p=2722519&postcount=32). If a LEO decides, all by himself, to take you in on a 5150 he is required to confiscate your firearms (http://law.onecle.com/california/welfare/8102.html). They can keep them for 30 days, and longer if they petition the court. All of this on the word of a single LEO, no court involvement, no due process. Add the time it takes to get the release forms back from DOJ and you've lost RKBA for a significant amount of time.

If the LEO further claims that you are a danger to yourself or others, and the hospital intake person agrees, you now have a 5-year prohibition (http://law.onecle.com/california/welfare/8103.html), even if they release you a few hours later. The hospital person is likely to 'play it safe' and go along with the LEO. No court involvement, no due process, although the law allows you to petition the court for relief of the prohibition. That takes time and money (pay a lawyer) and not everyone has the means to pay a lawyer.

The restraining order (http://law.onecle.com/california/civil-procedure/527.9.html) and protective order (http://law.onecle.com/california/family/6389.html) laws are subject to abuse by the state as well, as judges often grant those based on a claim from a single individual without requiring additional evidence or corroboration. Bang, there goes your RKBA for the duration of the order, plus the additional wait-for-DOJ-release time.

Although the comment was taken as a general I will then add to it, after having been convicted of a crime and provided their due process.

Before rights are removed there must be a trial.

Mulay El Raisuli
11-24-2009, 10:13 AM
Isn't this essentially a question of level of scrutiny? Perhaps I don't know enough to guess, but it seems that the issue is whether the state can show that your conviction constitutes the kind of evidence of state interest sufficient for interfering with the right, and also the appropriate level of review. I'm guessing the level of review would be less than whatever it is for a law-abiding citizen, but anything above rational basis would eliminate the worst of these disarmament laws.

I'm basing that on a half-remembered case I saw on Volokh where a judge said that disarmament without review or appeal for someone merely charged with a crime unrelated to violence (possession of kiddie porn, I think) wasn't sufficient. It sounded like the judge was saying that under any reasonable post-Heller level of review, the law was too arbitrary and too unconnnected to the crime to pass.

This game of reverse-engineering the law without sufficient knowledge is kinda fun. :D

7x57


It wasn't just at Volokh. The matter was discussed here on CalGuns back in January:

http://www.calguns.net/calgunforum/showthread.php?t=145365&highlight=magistrate

I haven't heard of anything on it since then though.

The Raisuli

7x57
11-24-2009, 11:17 AM
It wasn't just at Volokh. The matter was discussed here on CalGuns back in January:

http://www.calguns.net/calgunforum/showthread.php?t=145365&highlight=magistrate


I'm sure that's where I got the link. :D


I haven't heard of anything on it since then though.


It would be sort of interesting to know, but it was the ruling about condition of release on bail that really mattered and not the case.

7x57