Lautenburg Amendment going to Supreme Court
Summary here. It's a question of statutory construction. Defendant was convicted of ordinary misdemeanor battery in 1994. The victim was his then-wife. Since it was ordinary battery, fact she was his wife was not an element of the offense. Ten years later he's busted for being a prohibited person in possession of a firearm.
Question: given its rather ambiguous wording, does Lautenburg require (1) that the person be convicted of an offense whose elements are threat or use of force, and against a domestic partner, or (2) that the person just be convicted of an offense whose element is threat or use of force, but in the federal case we'll prove it was in fact against a domestic partner.
Oral argument is Nov. 10.
UPDATE: the only question is the meaning of the statute -- constitutionality wasn't challenged. The petitioner's brief doesn't mention the Second Amendment (possibly it was written before Heller), but it might come up at argument. since statutes affecting constitutionally-protected conduct are often narrowly construed.
Whole enchilada unconstitutional? We can only hope.
Also, can the Supreme Court issue a writ of mandamus to have Lautenberg kicked in the testicles? Or would that raise separation of powers issues?
Posted by: Jim W at October 27, 2008 01:18 PM
A misdemeanor commited 2 yrs prior to enactment of Lautenburg can now result in a felony for mere possesion of an item.
Seems ex post facto to me.
An ex post facto law is a law that retroactively changes the legal consequences of acts committed or the legal status of facts and relationships that existed prior to the enactment of the law.
Posted by: Mack at October 27, 2008 01:35 PM
Jim W, thanks for making me LOL at work!
I guess it is really my fault for choosing to read it while taking a break...
Posted by: Melancton Smith at October 27, 2008 01:59 PM
It will be interesting to see how the Supreme Court deals with this in the wake of _Heller_. In previous cases, the Second Amendment was not being held as an individual right, now the Court has to consider whether a misdemeanor conviction can justifiably be used to permanently impair a Constitutional right.
Posted by: James at October 27, 2008 02:37 PM
Regarding the whole thing being ruled unconstitutional ... it's my thinking that we are still a long, long way from the right secured by the 2A being truly fundamental. By god, that would give criminals(!) the right to possess arms for all lawful purposes (said somewhat cheek-in-tongue).
Regarding the writ of mandamus ... I am laughing out loud!
Posted by: Carl in Chicago at October 27, 2008 02:48 PM
I can easily see Kennedy saying, "Sure Heller is an individual right, but Lautenberg is a 'reasonable' restriction" and over to the other side it goes.
Half a dozen of decisions like that and the fact that it's an "individual right" won't make a tinker's damn. SCOTUS did it with property rights and there's damn little way we can fund all the little gun cases that are sure to flood the court.
Posted by: Anonymous at October 27, 2008 08:27 PM
"Half a dozen of decisions like that and the fact that it's an "individual right" won't make a tinker's damn. SCOTUS did it with property rights and there's damn little way we can fund all the little gun cases that are sure to flood the court."
Agreed. Which is why it is utterly critical that Obama not name replacements for Stevens & Ginsberg. If McCain does so, we at least have a chance to firm up the strict constructionist/originalist coalition on the Court. If not, we'll not only face a permanently hostile Court and judiciary, but we'll have radical policies passed at will in Congress and gleefully signed into law.
This election is make or break for the RKBA. I don't care how ticked off you are at the Republicans or McCain (and I am PLENTY ticked at both) - Obama is a Class A disaster in waiting, and not just for the RKBA. First you stop the car from going off the cliff, THEN you kick the idiot driver in the nuts and replace him.
Posted by: Paul W at October 28, 2008 07:46 AM
One problem, it is highly likely that McCain will appoint someone, such as Hillary, to SCOTUS as anopther of his "reaching across the aisle" actions. Okay, probably not Hillary, but Napolitano or similiar.
Sadly, McCain's record does not encourage me to believe that he will be any better than Obama.
Posted by: Gregg at October 28, 2008 11:05 AM
McCain and Obama have both stated what kind of jurist they would consider for Federal court appointments, if you can't tell the difference between their philosophies, nothing I post can change your mind. But only one of them is on video wishing the Federal Courts would order wealth redistribution.
Posted by: James at October 28, 2008 11:32 AM