Supreme Court case on Lautenburg Amendment
An attorney in US v. Hayes has a website on pleadings in the appeal. Hayes won in the 4th Circuit, the government sought cert., and it was granted; briefings have not yet begun.
The issue is one of statutory interpretation. Lautenberg forbids a person to possess a firearm if they have been convicted of a domestic violence misdemeanor. That in turn is defined as a misdemeanor that "has, as an element, the use or attempted use of physical force, ... committed by a current or former spouse, parent, or guardian of the victim..."
The defendant had been convicted of ordinary battery, not of an offense against a specific domestic violence statute. The battery was against a spouse, but that was not an element of the offense. That is, while the offense involved a spouse, the State could have gotten a conviction whether that was true or not. It had no duty to prove it.
So the question is whether the words of the statute mean "an element of which is force against a spouse" or mean "an element of which is force, and which happens to be committed against a spouse." That is, does "an element" refer only to use of force, or to use of force against a spouse. This is course the sort of fine point that we attorneys love -- but in this case it determines whether Hayes is to be a federal felon for having a firearm ten years after a misdemeanor plea.
I'm not getting over the fact that this isn't an ex post facto issue. Based on the actual question, I don't see how the the Supreme Court would get around the fact that Congress pretty clearly intended this to apply to violent misdemeanors when a spouse or domestic relation was involved.
This is more reason why Lautenberg is just bad law. Anyone who is a wife beater to any serious degree is going to be looking a felony conviction anyway, and GCA 68 already sufficiently took care of that problem.
Posted by: Sebastian at May 1, 2008 11:57 PM
while the GCA does appear to have had a good end, i still don't agree with the means. you can't justifyably say that you can always ban someone from something. it does not make any sense when you think about it: the exception from the rule becomes, instead of a criminal act, all of the perfectly defensible ones!
a felon that is, in most people's opinion, a complete waste of life, but still remains actually human and alive, still deserves the right of self-defense. otherwise, an even nastier dude can come along and knock off all the competition -- and of course nobody cares because the solution is to put all of the above to death (which is murder, since the state carries it out on all of our behalfs).
again: not to say that the real effects of the GCA were bad, but it banks on the ends justifying the means. when you create that de facto environment of injustice, you encourage more crime! who will trust a system that doesn't actually use its courts to find out when right and wrong have occurred, and instead legislates rights away on behalf of the majority?
Posted by: jon at May 2, 2008 07:42 AM
The thing that trouble me is, in addition to the post facto, that a frequent element of divorce were charges of domestic abuse as a tactic.
I have friends who were charged and ro's obtained but at the hearing it was shown the complaining spouse trumped the claim. Had the charged spouse pled out b/c it was cheaper and no real punishment would ensue they would have ended up losing the right to arms and self-defense. And with no real recourse to clear the record.
I recall that a good number of government employees were snared in the above scenario and lost their jobs b/c they could no longer have a gun.
Lautenberg is back door gun control law.
Posted by: tom gunn at May 2, 2008 08:28 AM
This is one of those holdovers from the Clinton reign of terror. You don't even have to be convicted of anything, just be named in a restraining order alleging violence and your firearms rights are gone.
Posted by: The Mechanic at May 2, 2008 08:44 AM
Wouldn't that very ambiguity in the statute have to be read in a way that most benefits the defendant?
Posted by: Jim at May 2, 2008 04:10 PM
Right now how the law reads you can beat your spouse and FOREVER loose your right to posses firearms. If you kill your spouse, serve your time, you can petition the court to get your rights back again.
Posted by: FFL Guy at May 2, 2008 06:42 PM
You don't even have to beat someone. In my case, my girlfriend said somthing insulting to me in front of a neighbor. I splashed a drink in her face. A shouting match ensued. Neighbor called the police. I get arrested, convicted for DV. Now 16 years later, happily married, with a son. Yet I can't take him hunting. Something I remember so fondly doing with my own father. I guess I'll be fishing for the rest of our time together. Lame.
Posted by: K at July 6, 2008 05:11 PM
What bothers me about this case is that nowhere have I found in it that the "Lautenberg Ammendment" has been argued as unconstitutional at any point. Will the Supreme Court even allow the constitutionality of the law to be questioned. Giatras has never raised the question. The other question I have is if the wife of a man wants to own a gun but her husband is banned under Lautenburg for MDV but she didnt know. Are here rights being infringed? Can she posses a gun in her own home? Or does she have to divorce her husband to have the "Bill of Rights" apply to her?
Posted by: Greg at July 11, 2008 06:03 PM
As the 2nd amendment reads that the right to bear arms shall not be infringed. The last word is the most telling. If you have any doubts what was written look up the definition in websters.
Posted by: allen at August 13, 2009 09:39 PM
This is the biggest crock of a law I have ever seen. I am a Gulf Veteran who was kicked out of the military after begging for help with a problem I had that I could not explain. Well FINALLY after almost 30 years I find now hey it's Called PTSD and they finally recognized it. I have been fighting to get back my life and it took my Country almost 30 years to say oh now we acknowledge you had a condition that may have been part of the problem. This is unbelivable despite the passage of this amendment I can pick up the paper to find a "OFFICER" with ties to Islamic radicals had a right that was taken from me and he killed some of my fellow soldiers in the process. WHAT HAS HAPPENED TO THIS COUNTRY!!!!!!!!!
Posted by: Chad at November 14, 2009 03:12 AM