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Old 11-22-2009, 12:15 AM
anthonyca anthonyca is offline
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Quote:
Originally Posted by hoffmang View Post
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%2...osecutions.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.
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