Commentary on Heller and US v. Hayes
Over at Sentencing Law and Policy, there are numerous posts on Heller. This particular one tries to draw some conclusions from the fact that the Court recently granted cert. in US v. Hayes, a case under the federal ban on gun possession by persons with a DV conviction.
Must confess I don't see the point. And it was rather strange that the post nowhere describes what's at issue in Hayes. I found the Circuit ruling, and (1) no one challenged the constitutionality of the statute; (2) the issue is what did Congress mean when it defined DV?
Update: 922(a)(20) is the provision added in 1986 that says a restoration of rights or related order makes a person no longer a prohibited person. I helped some on drafting that, long story. There have been some fights over its interpetation, i.e., is a conviction really expunged or set aside when the order says that it is, but the state statutes say that the conviction still has effect (e.g., it would count toward a second offense or can be used to impeach a witness). I suppose that recognition of an individual right might add a little, but probably just a little, weight to the argument that these expungements count as restoring rights. As I say, a little.
To be precise: Hayes had been convicted of ordinary battery, not under one of the modern DV statutes. The victim was his spouse. So when Congress worded the statute to say DV means an offense an element of which is force or threat against a household member, did it mean (1) an element of which is force, which happens to be against a household member, or (2) the elements of the offense must be force, and use against a household member? If the latter, then Haye's previous conviction didn't qualify, since use against a household member may have been the case, but it was not an element of the crime of which he was convicted, which was ordinary battery. The 4th Cir. said it was (2) and his indictment should be dismissed.
I can't see where the disposition of Heller would have much importance to that issue, except that maybe if it's an individual right it might give a little more argument for reading the statute narrowly rather than broadly.
Other postings look rather like raising "horrible hypotheticals" against an individual rights ruling. Every felon in possession case will invoke it, etc., etc. I tend to be a bit suspicious about anything coming from Ohio State U in any event.