Supreme Ct interprets Lautenberg Amendment

Dave,

Can you please shed a little more light on the significance of the opinion to gun owners, if there's any?

If we're law abiding gun owners but use "traditionally reasonable" means to discipline our children for example, do we need to fear losing our gun rights if our discipline is viewed by a judge as battery or domestic violence?

Just another case of Congress violating the inalienable Rights of People. While a "reasonable" law would be that the individual would be prohibited from assaulting another (legitimate action by government) and would be punished IF and WHEN an assault occurred, this "reasonable" law acts by trying to restrict the tools in direct conflict with an absolute prohibition. The word SHALL is a command, not a request and that command is directed at government.

This is typical of the stupidity of those in charge and of their desire to whip out their teeny weenies and use what piddly power they have to force others to conform to their thinking. Attack the tool not the behavior. In this case, no one as yet has shown me where in the Second Amendment the word, reasonable, is written. Implicit is a lie. Part of state sovereignty is a lie. The US is not sovereign. Sovereign nations do not have their powers limited and delegated.

The term INALIENABLE as used in the Declaration means those Rights cannot be legitimately given up nor can those Rights be legitimately taken away. Government by man however fails often to follow the true path. Do not expect justice on Earth.

I would continue but too many folks out there are insufficiently sentient or have succumbed to the subversive mind-numbing of public education to effectly and fully grasp the topic.

Dominus providebit!

There was ever a doubt?

So Hayes is now guilty of violating a 1996 law that made illegal what was perfectly legal in 1995, because of what he did before 1996?

It wasn't his domestic violence crime in 1996 that got him 10 years, it was that he owned a gun at the time. And he had an earlier conviction for battery, but that conviction did not preclude his R2KBA. But somewhere in 1996 that possession suddenly turned him into a felon. Uh huh.

How is it that the Lautenberg amendment is even constitutional? Seems mighty ex-post facto to me.

Funny that you bring that up, Drew.
I've asked about that on many a legal forum and never receive an answer.
But, as I understand the lawyerese, it's not ex-post facto because being deprived of your 2nd Amendment rights is not considered a criminal punishment, merely an administrative punishment. Viola! No ex-post facto. Amazing what can be done with words, eh?
Perhaps someone with real legal knowledge could chime in and set us all straight on this ex post facto thing.

I like very much the law against felons possessing guns. But in defending the application of it to felons convicted before the ban took effect, I think I'm in a similar situation that gun banners are in trying to wish away the Second Amendment. It IS an ex post facto increase in penalty and that's NOT constitutional. I suppose the constitutional solution is an amendment banning felon possession. It would pass easily I suspect.

FWB: Inalienable rights are only inalienable until you commit a crime. After that, not only can your guns be taken away, your inalienable right not to be locked in a cage can be violated as well as others. There can also be a life sentence (against gun possession) for all felonies and some misdemeanors if it's reasonable.

And as for reasonable restrictions on the Second Amendment being legitimate, do you really want every angry suicidal idiot to be able to go down to the arms store and buy some cheap nerve gas to bear? The line has to be drawn somewhere. Sure, the Second Amendment as written protects all arms. But it's obviously obsolete in that respect. And if we put up an amendment for vote today, what do you think the chances are that we'll get protection even for machine guns, much less anything MORE potent?

Talking or reading about our rights in the context of the American legal community reminds me one of a line from one of my favorite modern plays, J.M. Synge's "The Playboy of the Western World," in Act II of which the main character confesses ashamedly: "I'm a poor scholar with middling faculties to coin a lie . . ."

Intelligence is double-edged sword in that it increases not only one's capacity for deception but also for self-deception.

I believe that it is self-deception that is the main source of all this lying about "what the Second Amendment means"--it is damned clear what it means--dangerously clear.

And that is why it must be treated as if its meaning is wholly opaque.

I don't understand how this doesn't violate ex post fact:

Calder v Bull (3 US 386 [1798]), in the opinion of Justice Chase:

1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.

Not a lawyer, so I need some help in understanding how they're getting around points 1, 2, and 3.

Because Deadcenter, their guns are organized. that;s how.

I have two points to make. The first one being this opens the door to saying that anyone convicted of drunk driving can lose their gun rights. The reasoning would be if they can't be trusted with a car they can't not be trusted with a gun. Meaning they can still drive but can never own a gun, retroactively.
Point number two. I believe the way his law was done put people on trial a second time. The congress acted as a jury and the bill's sponsors were the DA's with the speaker of the house/s acting as the judge. The trial was held and the people were giving a new sentence. No matter how its word smithed, these people were re-sentenced. And if they were not re-sentenced after congress gave them a new trial, they would still have their Constitutional rights of the Second Amendment.
This whole matter is BS and that the whole truth and nothing but.

One more thing: Before anyone claims they can't take away their guns and still allow them to drive is wrong. If a person is convicted of DV without any injury they still lose their Second Amendment rights and can still be married. Or they can get married.

Mr. Hardy wrote, ". . . as far as retroactively increasing the penalty for the DV charge, well, gun ownership is something like driver licensing or other such licensing, you can make licensing standards stricter without it being increased punishment for past acts."

And that is the reason why "shall issue" is not the end all and be all.

"No permit needed" (like Alaska) is the only way to go.

Mack, any "punishment" that takes away one of your rights is punishment nonetheless, and all the weasel words in the world won't change that.

Seems to me there is also something in the old Constitution about excessive punishment ... and taking away someone's 2A rights over a misdemeanor seems MIGHTY excessive to me.

If you were to get a parking ticket it would not be fair that your "administrative punishment" also forever deny you the right to speaking your opinion, and also revoke your right to trial by jury. But that's the same kind of outcome: the removal of a fundamental human right as a penalty for committing a minor crime. [ the possible debate over whether domestic violence or any other kind of battery should be a minor crime (ie a misdemeanor) is a different discussion. As it stands now DV is a "small potatoes" crime ]

Mack - just to be clear, I know that you are only passing on what you've heard. The weasel words aren't yours; I'm not killing the messenger.

AvgJoe - "without any injury"? Please clarify. I think the law is written so that even the threat of injury is sufficient.

You all realize that this whole thing also applies to parents who spank their children, right? Suppose the kid goes running to an over-eager DYFS agent ... remember the Day Care witch hunts of a few years back? ... Domestic Violence isn't only about men smacking around their wives.

Oh. Dave, thanks for the update. I didn't see it at first. I agree on 2): gun ownership is NOTHING like any kind of licensing. 2A is a right; any kind of license allows you a privilege. I do not agree with their logic on 1): the crime of gun possession can only be a crime for those convicted of DV AFTER Lautenberg was passed.

It's all weasel words, and that is what this decision was based on: a subjective parsing of the commas and semi-colons. It's a crock, pure and simple.

The Lautenberg Amendment is totally unconstitutional because it is ex-post facto, and I am highly disappointed in the Supremes, especially Scalia, if they can't see, or are willing to snake their way around, the obvious.

Fire the whole damn bunch and start over. Oh wait, we can't do that; with all our wonderful "checks and balances" we have no way to unseat any of these pillars of wisdom.

"Fire the whole damn bunch and start over. Oh wait, we can't do that; with all our wonderful "checks and balances" we have no way to unseat any of these pillars of wisdom."

Sure we do - I've got a decent collection of ultimate "checks and balances" in my very own home...

Scalia and Roberts were the only ones dissenting? I would have suspected at least Thomas and Alito to be on that side, too.

I have heard the argument before about Lautenberg not being ex-post-facto because the deprivation 2A isn't a crime, however, what about all the folks who found themselves suddenly criminals because they were in possession of firearms with a prior DV once L'berg was signed into law? Doesn't seem like you can just go: 'poof!' everyone who had a mullet in the 80's is now a felon and should be on the sex offender registry.

I'm thinking that because the Second Amendment is now ensconced as an individual right guaranteed by the Constitution, per Heller, wouldn't the deprivation of an enumerated right in perpetuity be a violation of the Eight Amendment?

Surely, permanent removal of an enumerated constitutional right for a misdemeanor would be both cruel and unusual punishment.

Nict-picking: The Right to keep and bear Arms IS NOT a constitutional right. The phrase Constitutional right implies that the right is granted BY the Constitution. The Right to keep and bear Arms is NOT granted. As is written in every constitutional law book I've read from the framing through 1900, the writers emphatically state the the Rights enumerated, do not depend on and preexist the Constitution. One may call these human Rights, or God-given Rights, but to call them Constitutional rights is wrong.

As to the Lautenberg amendment, does its acceptance mean we can do away with 4th amendment protections or fifth amendment protections based on someone having a particular misdemeanor charge? If not, why not? What logic is there in selecting one and not the others?

The law is bs just as is any claim that the 2nd allows for "reasonable" restrictions. This is another case of the judges losing their place as OUR servants.

I once more quote Blackstone:

"For, whenever a question arises between the society at large and any magistrate vested with powers originally delegated by that society, it must be decided by the voice of the society itself: there is not upon earth any other tribunal to resort to.

Sir William Blackstone, Blackstone's Commentaries on the Laws of England, Book I, Chp3, pg.205/6"

If this is too difficult, it means simply that the people override any and all decisions that the judges make IF the people so desire. It means the judges work for us and are not in charge. Those who believe otherwise have been brainwashed by the public education system.

Dominus providebit!

Ex post facto it isn't, but the legislature should still enact a requirement that these individuals receive ACTUAL notice of the new law, and the new law's prohibition. Some states' sex offender registration laws require this.

Ok, so is the "retro active" part of the Lautenberg ammendment still in effect after this Hayes reversal?

http://www.calguns.net/calgunforum/showthread.php?p=2835643#post2835643
I have done quite a bit of research on this subject and can not get a concise answer on what is "similarly situated" as per the lautenberg amendment. This site lists some case law and it seems that "similarly situated" is not at all clearly defined. http://law.onecle.com/search.html?cx...ntrol+act#1400 According to the BATFE brochure "simply stating that the persons are boyfriend/girlfriend does not establish the relationship necessary for the MCDV prohibitor to apply". Page 2 top center paragraph http://www.atf.gov/firearms/domestic...v_brochure.pdf If the relationships spelled out in Lautenberg are not met and If boyfriend/girlfriend does not establish the relationship then what exactly does? Dating for a defined time length? If they were in love? If they were just having a casual physical relationship? Every other law I have ever looked up is so detailed it is almost comical and many people make jokes about them. The victim and defendant were not domiciled together and had no shared expenses.This letter is kinda old from 2001 but seems to say that they must be domiciled or have been domiciled in an intimate relationship to be considered similarly situated. http://www.peaceathomeshelter.org/DV...lautenberg.pdf
On edit. This site references the most on what is "similary situated" I could find.http://findarticles.com/p/articles/m...g=content;col1

Cal DOJ does a PFEC, personal firearms eligibility check and is listed as a "point of contact state" and they check federal and state prohibitions. The problem is that the first time he did that check they said he was ineligible to possess or purchase firearms under the federal lautenberg amendment. He called the Cal DOJ requesting clarification and was told that he pleaded to a minor crime involving his "fiance". After he told the women from Cal DOJ he was never engaged she back peddled and told him to call the Federal Nics office. They were no help and he filed online also and never received any response.

After all this he filled out the same PFEC and this time it comes back saying that he is eligible to both possess and purchase firearms. He still has not bought any firearms as he does not want to risk a federal prosecution due to these conflicting results from the people who are supposed to know the law.

Adding to the confusion he was in the Army Reserve and some people were removed from his unit for failing the Lautenberg Amendment checks but he was not. The original charge was California penal code 243(e) battery against a person involved in a dating or engagement relationship but his attorney pleaded him to California penal code 242 which is a non DV battery. That seemed to be somewhat settled until US vs Hayes as the plea was to a non DV charge.

The BATFE says they look at both court and non court documents, IE police reports to determine the relationship. He has never seen the police report and even filed a Public Records Act Request for him to see a redacted copy and was told "in order preserve investigative techniques" ( for a 12 year old misdemeanor case) he would not be allowed to see a copy. How can he know what the police wrote in the report that is potentially blocking his Constitutional rights and could possibly open him to a federal felony?

There were no injuries or striking (according to him and the "victim") in the case so the circuit split on if "violence" is required under lautenberg http://papers.ssrn.com/sol3/papers.c...ct_id=1347226# further complicates his case as in California if someone calls the police in an apparent DV case someone is going to jail and the Prosecutor will file charges even against the will of the "victim". In California mistomeaner assault does not have to even involve any physical contact. In argument the police may have wrote that he touched her but they both say that he did not strike or harm her hence the Battery charge. The victim still tells him years later that she did not call the police and would not cooperate with the DA even after being threatened.(they are no longer together but do not hate each other)

The Lautenberg Amendment has effected so many people and I can not believe that it is still valid. He is in the process of trying to get his plea withdrawn (not likely) due to the evidence he saved of his attorney telling him after the fact how his plea would destroy his military career (He was in the Army Reserve at the time) and effect his employment as he needs to get very detailed background checks for Govt agencies and the 1934 SEC act. He has the docket showing he was never in court and he has the TAHL/plea form that she never signed where it states that she explained the charges and consequences. He still possesses her original signed letters dated after she entered his plea explaining that "it occurred to me that you will banned from possessing a firearm". He was 19 at the time and very naive as she rushed him through the process. He also has a certified copy of the docket showing he was never present in court and she appeared on his behalf.

This guy got screwed really bad on this whole thing. I saw a lot of this as I was in the ARMY Reserve when this crap law was passed and we had to discharge some good soldiers for a fine they paid years before with no time served.

How can he know 100% that he will not be brought into a Federal Grand Jury investigation and charged federally with out it first happening? There is no federal PFEC.

I know there have been very few challenges to this law that have made any headway and never went all the way besides Hayes who was a terrible plaintiff but with the right defendant and the right counsel could this go anywhere?

I hate this law. No one should ever be punished for a law that wasn't in effect at the time of court. Post endo or whatever you want to call this. Even if someone is convicted of dv I believe there should be a point where you could own firearms again as we all make mistakes. Minus serious disregard to human life. That crime would put you in a serious felon position that would require stiffer penalties. Thank you