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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.
Comments
This is what you get when a bunch of academics sit around a wringing there hands over those nasty guns. Almost all of the threads over there seem to be wringing the same sweat.
Mark
Posted by: Mark at March 25, 2008 10:47 AM
got to admit, that distinction seems pretty hairsplitting to me. which means i'd be amazed if anything particularly significant or useful came out of the case in question, regardless of the outcome. Hayes wins? ok, courts start labeling battery cases domestic violence whenever they reasonably can. Hayes loses? same ol', same ol'.
unless the supremes come back saying "Hayes wins because the law is unconstitutional anyway, misdemeanor offenses shouldn't result in loss of 2nd am. rights", which i'd guesstimate is slightly less likely to happen than beelzebub is to get frostbite of the gonads.
Posted by: Nomen Nescio at March 25, 2008 03:30 PM
The Lautenberg Law.
Even extends to military personnel.
Maybe Lautenberg should reignite his war
with Torricelli lol.
Yet another fine defender of the 2nd Amendment Rights :)
Posted by: Marcus Poulin at March 25, 2008 04:19 PM
After working really hard (a couple of B&Bs) to take the US v Hayes cert grant as a tea leaf for Heller seriously. I have read the the 4th circuits ruling and the merit briefs and I simply do not see how this could in anyway be linked. I mean, you would have to twist this so far that pretzel would not recognize it. I do not see how this cert grant could have any application in relation to Heller or the overall larger issue of scrutiny in reference to Heller. I simply can not get there from here.
Dave, would happen to have any directions that I can use? :-)
Mark
Posted by: Mark at March 25, 2008 11:18 PM
Dave, do you see a constitutional right to bear arms affecting interpretation of 18 U.S.C 921 (a) (20) in any way? Or undoing any case laws related to the interpretation to 921 (a) (20)?
Posted by: Paul at March 26, 2008 01:35 PM
Interestingly enough, I've been working on prepping a company from my unit for mobilization. One of the questions I have to ask them is if they are convicted felons under the Lautenberg amendment.
Posted by: thirdpower at March 27, 2008 04:28 PM