That’s the case in which a unanimous Seventh Circuit panel vacated — on Second Amendment grounds — a conviction for gun possession by a misdemeanant convicted of domestic violence, and remanded for further proceedings to determine whether the government could show a “reasonable fit” “between this important objective [the government’s interest in protecting against domestic-violence gun injury and death] and § 922(g)(9)’s blanket ban on firearms possession by persons who have been convicted of a domestic-violence misdemeanor.” Thanks to Alice Marie Beard for the report.
lgm says:
Question for the lawyers: is it possible to rule against the government without calling into question things like restraining orders, sexual predator laws, and revocation of drivers’ licenses of drunk drivers?
February 23, 2010, 12:51 amMike McDougal says:
lgm, I’m not sure what you mean. The government can also be sued — and ruled against — for things like unnecessarily beating prisoners and breaching contracts.
February 23, 2010, 1:23 amrequired says:
Without calling into question I doubt it, but it can easily done without having much impact on them.
There is a reasonable fit between the action by the state and the objective of the state with all of those except some of the sexual predator laws and isn’t as relevant with regards to the privilege of driving & drunk drivers. Reasonable fit is most stringently required in cases dealing with restricting rights guaranteed by the constitution which are not implicated (except for some of the sexual predator laws) in those cases.
February 23, 2010, 1:23 amOrenWithAnE says:
If this sticks, I wonder if State legislatures will reclassify domestic violence as a felony (leaving in place the same penalties). Certainly there is no legal bar to doing so, which would have the same effect (albeit only prospectively) as §922(g)(9).
February 23, 2010, 1:55 amOff Kilter says:
Actually, OrenWithAnE, that may be exactly what it takes for the courts to begin to address the question of whether ALL felons should lose their second amendment liberties for life (especially considering the number of cops found guilty of domestic violence…)
February 23, 2010, 2:31 amJ. Aldridge says:
Still amazes me how any court assumes you need a federal constitutional right to defend yourself.
February 23, 2010, 2:47 amSeventh Circuit Will Rehear U.S. v. Skoien En Banc | Liberal Whoppers says:
[...] more: Seventh Circuit Will Rehear U.S. v. Skoien En Banc [...]
February 23, 2010, 4:26 amAnderson says:
If you don’t want to lose your gun, don’t beat up your wife.
I had not realized that even the Volokh commenters would find that problematic.
February 23, 2010, 7:14 amAnonymous says:
I know of only one domestic violence misdemeanor case personally, in which a friend was convicted on his wife’s claim that he threatened to kill her. No evidence was required or produced to substantiate. His “lawyer” immediately advised him to plead guilty so as to limit his time in jail to 30 days served on weekends. This was at his wife’s request so that he would not lose his job and could pay child support. He was also obviously concerned about losing his (blue collar) job. Not understanding the consequences, he agreed. No one who knows him believed he was or is a threat to her or the child.
I wonder how typical this is? How much evidence is usually required? Are there cases in which women have been convicted of this type of crime?
February 23, 2010, 7:54 amcboldt says:
– ALL felons should lose their second amendment liberties for life (especially considering the number of cops found guilty of domestic violence…) –
February 23, 2010, 8:05 amThe law either does or will exempt police. From Criminal Resource Manual 1117 – Restrictions on the Possession of Firearms by Individuals Convicted of a Misdemeanor Crime of Domestic Violence …
egd says:
I’d be willing to bet that most, if not all, misdemeanor domestic violence charges do not include acts of physical violence.
February 23, 2010, 8:27 amPubliusFL says:
If that were the rule, I’d bet fewer Volokh commenters would find it problematic.
February 23, 2010, 8:52 amruuffles says:
How often does a domestic violence conviction result in an officer losing his (or her) job?
February 23, 2010, 8:52 amDaniel Chapman says:
I don’t believe there’s an exception for police officers. I *know* there’s no exception for military.
edit to answer ruuffles: In the military, every time. It also bars someone from enlisting.
February 23, 2010, 8:56 amAbdul Abulbul Amir says:
More to the point, don’t hit back if the wife starts beating on you with a rolling pin. Because unless the hubby is bleeding badly, he is the one convicted.
You can be convicted of misdemeanor domestic violence for merely grabbing an arm.
Beating up your wife is a felony.
February 23, 2010, 9:08 amPubliusFL says:
What you quote states that military and police are exempted from the ban on felons possessing firearms, but NOT from the ban on domestic violence misdemeanants possessing firearms. 18 USC 925(a)(1) says:
922(d)(9) and (g)(9) are the domestic violence misdemeanor prohibitions, so they do apply to government-issued firearms.
February 23, 2010, 9:14 amSteve P. says:
I always forget how victimized us men are, until I come into one of these threads.
February 23, 2010, 9:30 amStan says:
In my experience, this is not true. It is the physical violence or the use of a weapon, that causes these to be prosecuted. What you don’t have is serious injury.
February 23, 2010, 9:31 amruuffles says:
I looked on the 7th Circuit website but can’t find the order (in pdf form as, say, the 9th would have posted). Does anyone know how Alice Marie Beard found out about it?
February 23, 2010, 9:35 amcboldt says:
On a hunt for the reach of 922(g)(9) vis-a-vis police officers who have domestic violence misdemeanor convictions, I ran into this: United States v. Ludivic White, Jr. (08-16010) Eleventh Circuit. The case probes the effect of Heller on 922(g)(9).
February 23, 2010, 9:36 amShelbyC says:
In California, any visible mark counts as an injury and jacks the incident up to a felony.
February 23, 2010, 9:36 amcboldt says:
Heh — I should hold my posts longer before submission. I see Professor Volokh covered the White case back in January. Sorry for the repetition. Declan McCullough cataloged the 922(g)(9) cases, in a November 19, 2009 article, “Court: Criminal Record May Not Prevent Gun Ownership“.
February 23, 2010, 9:55 amAs for police and military being exempted from 922(g)(9), my statement that they “will be” was speculation, based on the DOJ Manual that Congress was considering legislation. As a practical matter, the legal issue can be rendered moot by prosecutorial discretion – don’t charge police with domestic misdemeanors.
JeremyKidd says:
Since there seems to be a tendency towards over-generalization from some posters today, let me state what should be obvious to anyone looking at this with an open mind: state domestic violence laws are typically quite broad, in order to protect domestic partners and children. There are very good reasons for that to be the case, but it means that a wide variety of actions can lead to a domestic violence charge. Not all domestic violence misdemeanors require the use of force – some states (Utah, for example) require only a verbal threat. While threats should be taken seriously, I’m not convinced that someone who threatens their spouse once, pays a $50 fine, and exhibits no further violent tendencies towards that spouse, should lose their Second Amendment rights.
To forestall the inevitable criticisms, that’s not a strawman, as I am aware of a specific case in which a federal defendant faced jail time under precisely those conditions. I don’t know why prosecutors chose to prosecute in such a case, but their discretion to prosecute in such clearly marginal cases makes me somewhat supportive of the idea that the Second Amendment must be considered.
February 23, 2010, 10:23 amOrenWithAnE says:
I’m highly skeptical. You might as well ask the Courts to address the question whether felons should lose their right to vote for life.
In those cases, they usually charge them both.
Yes, that would be pretty textbook domestic violence.
February 23, 2010, 10:27 amOrenWithAnE says:
You mean a case under (g)?
I don’t see why that’s marginal at all. He was clearly convicted of DV, he clearly possessed a firearm. Do you really expect prosecutors going after obvious (g) violations to look back at the strength of the original DV conviction (which is long adjudicated) to determine whether or not the case under (g) is good?
February 23, 2010, 10:32 amPhil says:
It’s built into the system that prosecutors under-charge even where there is evidence of more serious charges because of the burden of proof. I’m more surprised that you say the Feds prosecuted this.
February 23, 2010, 10:38 amcboldt says:
– It’s built into the system that prosecutors under-charge even where there is evidence of more serious charges because of the burden of proof. –
February 23, 2010, 10:43 amI took JeremyKidd’s anecdote as involving two prosecutions. The second one, the fed one for misdemeanant in possession, is the one I think he questions the discretion on.
JeremyKidd says:
Phil:
Sorry I wasn’t clearer. My concern is with the discretion of the feds to prosecute for possession under (g). In the case I am thinking of, the gun was not used in the commission of a crime. In fact, the gun wasn’t used in any way. The police investigated an unrelated incident, and the defendant indicated he owned a gun. The police later stumbled across the prior conviction while doing their paperwork, and the feds decided to charge him.
Clearly, this is a rare case, but it shows that not all those prosecuted under (g) are dangerous and worthy of having their Second Amendment rights revoked.
OrenWithAnE: Yes, I expect federal prosecutors to consider the facts of the case (including the underlying state DM conviction) before deciding whether it is worth bringing charges. It seems that there are at least two important considerations.
First, the cost to the taxpayers of bringing the suit, especially if the defendant fights it. If the defendant is not a danger, then the costs may dramatically outweigh the benefits.
Second, an individual’s liberty is at stake, especially in the context of federal firearms statutes, which can impose tough sentences. Again, if the defendant poses no danger, then why subject him and his family to criminal proceedings.
Again, to forestall the inevitable criticisms, I am not arguing that most (g) prosecutions fall into this category. I don’t know anyone who wants to abolish (g) entirely. However, in those rare cases where there is no danger, why shouldn’t the Second Amendment rights of the defendant be considered?
February 23, 2010, 10:52 amRoger the Shrubber says:
This is not at all uncommon. Here in VA, I have seen numerous federal felon-in-possession cases under “Project Exile” where there was no nexus between the gun and any crime, other than possession.
That doesn’t trouble me all that much, since possession of weapons by ex-felons is an independent crime. There were a few cases where I thought prosecutorial discretion not to charge should have been exercised, and wasn’t (i.e., very old felonies, obviously non-dangerous persons in possession of guns) but that’s the way things go.
What does trouble me is that Project Exile was started, in part, as a way to get such cases into the federal system because Virginia STATE juries were perceived to be too lenient in convicting for the same crime under state law. When one of the prosecutors noted that during a CLE I attended, the head of a federal judge on the same panel almost exploded.
February 23, 2010, 11:26 amFederal Farmer says:
It seems odd to me that we allow people who can’t be trusted with a gun to roam free and operate vehicles weighing thousands of pounds which are capable of killing dozens of people and result in over 63 times more accidental deaths of children 14 and younger every year.
February 23, 2010, 11:54 amKill someone with a car, serve your time, and drive off to possibly kill again with no impairment.
PubliusFL says:
Considering that the pending bills mentioned in the DOJ Manual were introduced in the 105th Congress shortly after the original passage of the Lautenberg Amendment and died in committee, and no similar bills have been introduced in the past 13 years, I’m not expecting a police or military exemption anytime soon.
February 23, 2010, 12:02 pmRoger the Shrubber says:
Solid point. Sort of like how we have a blanket drinking age of 21, yet we let stores and bars sell alcohol to people of all ages (over 21 at least) who have multiple DUI convictions.
February 23, 2010, 12:04 pmJay says:
Roger the Shrubber–I doubt it’s that anyone thought the odds of conviction (by plea or trial) in Virginia state court were too low, but rather that sentence a federal defendant is likely to get for a felon-in-possession, especially if his priors are violent, is likely to be considerably higher and likely based on a statutory mandatory minimum.
February 23, 2010, 12:18 pmTo the extent there is a conviction concern, it may be based on the fact that federal districts are typically larger and draw a more conservative jury pool than you’d get in Richmond Circuit Court (the City of Richmond being home of the original Project Exile, I think).
ruuffles says:
Well there is that whole deal with getting a drivers license. If a state desires, it can bans those individuals from getting a license.
February 23, 2010, 12:41 pmAnym_Avey says:
All I know is that I got booted out of jury selection on a misdimeanor domestic violence case as the prosecutor’s first dismissal-without-cause. The case, it became apparent, was that of a guy and a girl and no physical evidence of harm, and no third party witness, just the testimony of a cop who had responded and interviewed the parties after the fact of the alledged battery. The guy had plead Not Guilty and was taking his right to not self-incriminate.
I didn’t feel I was going to be presented with enough independent evidence to know whether the law had been violated, and said as much. But apparently the girl’s claim and the cop’s hearsay was enough evidence for the state’s prosecutor to spend a chunk of our tax dollars looking into it.
February 23, 2010, 12:43 pmegd says:
As an example, here is what the State of Michigan considers “misdemeanor domestic violence”:
Now, I’m not suggesting that any of these are good or non-harmful actions, but rather (with the exception of stalking) that they shouldn’t prohibit someone from exercising a Constitutional Right.
There are a broad range of facts that can lead to domestic violence convictions, if there’s a need to remove firearms from those who engage in physical assault, then make a separate classification. Don’t lump the non-dangerous individuals in with the dangerous.
February 23, 2010, 1:02 pmruuffles says:
You’re conflating what the statues say and the “you might be a victim if” list of bullet points.
February 23, 2010, 1:14 pmRoger the Shrubber says:
Amazingly, the prosecutor expressly told the audience of lawyers that prosecutors were trying to get the cases away from “Richmond juries” (and around here, we know what that means) and into the hands of federal juries (conservative suburbanites, largely) due to the fact that the “Richmond juries” weren’t convicting under the state felon-in-possession law. The prosecutor then bemoaned the high carry rate of Richmond jury members (!).
I suspect the Richmond jurors weren’t convicting unless the gun was associated with a crime (other than possession). The idea that inner-city juries are soft on crime generally is, to me, crazy — after all, they’re all-too-frequently the victims of crime — but inner-city juries may well be unwilling to convict a 70-year-old guy with a shotgun just because he has a 30-year-old conviction for tampering with the mail. And that fact pattern isn’t too far from some of our more egregious Project Exile cases.
I further suspect that this reluctance on the part of state juries wasn’t sufficient for law enforcement, which wanted to use the felon-in-possession law to hammer drug dealers in cases where the drug evidence wasn’t so great.
Incidentally, they actually advertised the Exile program on local radio by reminding listeners that federal prisons were a long way away, and that prisons were loud and violent.
February 23, 2010, 1:15 pmMalvolio says:
Just a nit: defendant’s statements are not hearsay. First of all, they are admissions against interest, so they are admissible. Second, the defendant is sitting right there and can take the stand to rebut if he wishes.
February 23, 2010, 1:20 pmAsh says:
The disenfranchisement of felons is permitted under Section 2 of the 14th amendment which allows for it, as interpreted by the Court in Richardson v. Ramirez, for “participating in rebellion, or other crime”.
No such exception exists for the 2nd amendment.
February 23, 2010, 1:53 pmCal Attny says:
AS was explained to me by a AUSA where I clerked, the Lautenberg Amendment was put into place to “catch” plea bargainers who go from felony to misdemeanor. My sense of it is that if the Lautenberg Amnd. is struck down then DA would simply refuse to bargain and we get a bunch more felony charges, becuase the DAs–at least around here–love to the take away orders.
February 23, 2010, 2:00 pmruuffles says:
Thomas is the only one crazy enough to vote to overturn bans on convicted murders from owning guns.
February 23, 2010, 2:42 pmruuffles says:
In the event of one, does it also bar the military from drafting that person?
February 23, 2010, 2:44 pmFederal Farmer says:
Why are such dangerous persons allowed to roam free? Allowed to puchase gasoline? Allowed to operate motor vehicles?
February 23, 2010, 2:46 pmFederal Farmer says:
Personally I don’t feel drafting should be legal.
February 23, 2010, 2:48 pmSeaDrive says:
I rather think the Lautenberg Amendment took advantage of a bubble of interest in domestic violence to advance a general gun control agenda.
The players in the criminal justice system encounter guns mostly when being misused, and feel gun control would be to their benefit. With exceptions, they do not seem to understand they are not the only stakeholders in the discussion.
February 23, 2010, 2:53 pmJeremyKidd says:
Cal Attny:
I’m not convinced that would be a bad result. There are some occasions where a qualifying offense under 922(g)(9) consists of nothing more than paying a $50 fine, and no one thinks anything of it because it is so petty. Those pleading guilty and paying their $50 fine might not have any idea they are sacrificing their Second Amendment rights indefinitely. Upping the stakes to a felony is more likely to result in defendants being more aware of the likely consequences of a conviction, so they will be more vigilant in defending themselves and, hopefully, the number of false positives would go down.
Also, you seem to be assuming that state prosecutors bring charges based on whether 922(g)(9) will then apply to the convicted. My experience is that state prosecutors don’t give the federal ramifications of a state DM conviction much thought. For most DM allegations, it would seem that nothing would change, but for those that the prosecutors are really worried about, they would, indeed, have to up the charges. Again, that doesn’t seem to be an inherently bad thing, for the reasons described in my first point.
February 23, 2010, 2:55 pmLarryA says:
Note that I have worked with family violence agencies, and I’m totally on the side of giving victims all the legal help that will benefit them.
However, physically beating your wife to the point of injury is assault, and can usually be charged as a felony. We’re talking about misdemeanor-level offenses, which can be a shove or verbal abuse. One such incident should not create a lifetime disability.
Also when the law was passed by Frank Lautenberg it was retroactive. Thus a person convicted of a single misdemeanor offense many years before the amendment went into effect on 9/30/97 suddenly could not possess a firearm. A lot of good cops and soldiers lost their careers over an old conviction. A good percentage of the “domestic violence” cases happened before no-fault divorce, when it was common for one spouse to plead to slapping the other to get around restrictive divorce laws.
The law also made it illegal for anyone under a restraining order by an intimate person or their child to possess firearms. Such orders are routine in divorce cases, regardless of demonstrated need.
Unintended consequences again. “Sorry, your spouse is a cop, so we won’t file.”
Except that, while federal prosecutors will jump on a MCDV case, they are notoriously reluctant to prosecute felons found in possession. One of the “features” of the Brady Bill saga was that, of the hundreds of felons who were supposedly stopped by the background check, not one was prosecuted for the Federal offense of lying on the Form 4473.
I remember when the Lautenberg Amendment was passed. It was gun control, pure and simple. The Brady law and the AWB passed in 1994.
On 4/26/95 U.S. v. Lopez held the Gun-Free School Zones Act unconstitutional. On 6/27/97 Printz v. U.S. ruled that the Brady Law requirement for local law enforcement to run background checks for gun purchases was unconstitutional. States (including Texas) were passing shall-issue carry right and left.
The Brady folks touted Lautenberg as “regaining the (gun control) momentum.”
Felon!=murderer. What about Martha Stewart, who was apparently convicted for telling people the Feds couldn’t prove what the Feds couldn’t manage to convict her of?
Or some now-responsible adult who hotwired a car when he was 17?
February 23, 2010, 3:01 pmPubliusFL says:
I think the default rule is that if someone would be barred from voluntary enlistment, in the event of a draft they’d be classified as 4-F, not acceptable for military service. SecDef could change the rules if that created a manpower problem (e.g. due to massive numbers of draftees committing domestic violence misdemeanors to avoid the draft), but those draftees would still have to be placed in positions where they wouldn’t have to carry guns until and unless Congress created an exception to the Lautenberg Amendment for military service.
February 23, 2010, 3:02 pmOrenWithAnE says:
There is also a third one — the guy blatantly broke the law beyond a reasonable doubt. His choice to do so makes his liberty forfeit, that’s what the law is about.
February 23, 2010, 3:29 pmOrenWithAnE says:
In the State of MA, vehicular homicide or vehicular manslaughter gets you a 15 year suspension of your driver’s license. Driving while your license is suspended for the same gets you a lifetime suspension plus a mandatory 1 year minimum that cannot be served consecutively nor tolled for good behavior. 90MGL24G and 90MGL23.
February 23, 2010, 3:36 pmOrenWithAnE says:
And yet Colonial MA prohibited firearm ownership by indentured servants or Catholics.
The history around the time of the founding shows quite clearly that the RKBA was intended to apply to law-abiding citizens. See, e.g. Gun Laws in Early America for an exhaustive discussion of the various restrictions firearm ownership that are contemporaneous with the 2A.
February 23, 2010, 3:45 pmFederal Farmer says:
But the price of a felony was often much more strict and there were so darn many felony laws on the books.
February 23, 2010, 3:51 pmRailroad Gin says:
Ralph Kramden threatening Alice “to the moon” constitutes domestic violence nowadays. There need not be even be threats. Just yelling at someone too loudly can be domestic violence. If a guy smashes up his stereo, that is also domestic violence, at least in community property states under the fiction that the wife has an ownership interest in the property.
As a prosecutor, it would make my life a lot easier if Lautenberg were repealed or struck down. The vast majority of DV cases involve family arguments that most people have from time to time over the course of a 30 year relationship. It makes sense to have the guy pay a fine and go to anger management counseling, but its asinine to say that he can never own a gun. That ends up being the sticking point in trying to resolve these cases — a federal law I have no control over as a state prosecutor. As a result, I end up spending an inordinate amount of time litigating cases that would otherwise plead out at the first pretrial conference, but instead drag on for months because of this law. That is time I could be using going after rapists and the like, but instead I have to waste time on minor cases.
Another wrench in the machinery is that when the defendant is a cop, soldier or security guard, the victim always recants her story when she finds out her S.O. will lose his job. Sometimes she thinks its overkill. Other times she doesn’t want him to lose his pension in which she has her own interest. Once again my job is made harder. This situation also raises the problem of being unfairly lenient on someone because he’s a cop.
So even aside from the 2A concerns and just focusing solely on combating domestic violence specifically or crime generally, it’s my experience that Lautenberg is counterproductive.
One final point, in many jurisdictions, DV prosecutors tend to be women’s studies types who are well-schooled in feminist ideology – you can toss prosecutorial discretion out the window in that situation. Also, the required ongoing training for judges and prosecutors has been thoroughly hijacked by the feminists. The constant message is anyone who throws an ashtray across the room is one step away from murdering his wife.
I have had numerous trials where after hearing the case the judge says to the defendant “I think you could benefit from counseling. . .” Not “after considering the evidence I find you guilty beyond a reasonable doubt,” but pablum about how the defendant could benefit. It’s for “the children” or something. In AZ an ongoing controversy is whether to have jury trials for domestic violence cases. It’s clear that half the baloney which gets called “domestic violence” would be laughed out of the courtroom by a jury of normal citizens.
There is a huge difference between domestic violence as portrayed in some Lifetime made-for-TV movie and the reality of the majority of domestic violence in the real world. That is the crucial point in understanding the opposition to Lautenberg. There are, of course, serious domestic violence cases. But these get handled as felonies. Felons are already prohibited from having a gun.
February 23, 2010, 3:57 pmPubliusFL says:
I wonder, has any court ever considered whether, even if the Lautenberg Act is constitutional, it could tip the scale on whether a domestic violence misdemeanor defendant is entitled to a jury trial (e.g. when the misdemeanor carries a maximum sentence of six months or less)? Now that Heller has confirmed an individual constitutional right to gun ownership, a lifetime ban on a constitutional right, even if legal, certainly makes the consequences of an otherwise non-jury misdemeanor much more severe.
February 23, 2010, 4:27 pmOrenWithAnE says:
Be that as it may, it’s still within the power of the individual States (leaving aside the Federal question) to disarm and disenfranchise felons.
February 23, 2010, 4:28 pmJeremyKidd says:
I’m trying to figure out if you are completely rejecting the concept of proportionality. It seems like you are, but I may be mistaken.
If there is sufficient evidence to convict someone beyond a reasonable doubt, fine. However, if the punishment for the crime is disproportionate to the seriousness of the crime, I would prefer that prosecutors consider not bringing charges. To return to my previous post, if someone made a single verbal threat, ended up pleading guilty and paying a $50 fine, and never again threatened anyone, I would prefer that federal prosecutors NOT incur the cost of a prosecution in an attempt to deprive the individual of his liberty. I find that outcome a waste of taxpayer dollars and a highly disproportionate outcome.
Are there no circumstances in which you would come to the same conclusion?
February 23, 2010, 4:33 pmKevin P. says:
Oren, the author of that piece is Michael Bellesiles. Your point may well be valid but I am not sure that I would rely upon Bellesiles as evidence.
February 23, 2010, 4:48 pmRailroad Gin says:
This was raised pre-Heller in AZ. State ex rel. McDougall v. Strohson, 190 Ariz. 120, 945 P.2d 1251 (1997). The Arizona Supreme Court said that collateral consequences arising under federal law should not be considered in evaluating whether someone is entitled to a jury trial for violating a state law. The reasoning was that “It is not practical, or indeed even possible, for a state court to conjure up all possible consequences that might flow from a state court conviction when those consequences do not flow from the law of the state.” Basically the argument was we can’t do that! Lawyers and judges might have to research the law!! The next thing you know farmers will have to grow food and doctors will have to treat the sick!!! Where will the madness end?
The opinion also drips with language treating RKBA as the red-headed stepchild of the Bill of Rights. “Lastly, we believe that to hunt or possess a firearm for self-protection, while admittedly very important to some people, does not present the type of universal grave consequence we have found in cases invoking a right to jury trial. Many people would be completely unaffected by such a consequence.”
In Arizona, the Court uses the minimalist approach of limiting misdemeanor jury trials to certain crimes that exisited at common law. This makes no sense to me. To the extent juries are supposed to act as a check on overreaching government they are if anything more important when someone is accused of violating some modern crazy law that outlaws something that would once have been none of the government’s business.
If McDonald comes out the way everyone predicts it will I hope the defense bar in AZ relitigates this issue.
February 23, 2010, 4:58 pmOren__ says:
The problem is that you want to apply proportionality to a matter not at issue — the strength of the original conviction. How good those original DV charges were is irrelevant to the discussion of whether a defendant ought to be able to walk on a subsequent charge on (g). IMO, he shouldn’t.
But the punishment is proportionate for a blatant violation of (g).
Of course there are, but they are factual circumstances related to the offense at hand, not to the predicate facts on which that offense is based.
Indeed. I have tried only to cite his claims that are well documented by original sources.
February 23, 2010, 5:36 pmAsh says:
My point of bringing up the rationale for the disenfranchisement of felons is to distinguish it from the rationale for felon in possession laws and to show that in order to justify felon in possession laws you need to look at the standard of review for laws that affect that constitutional right. I’m not saying that all felon in possession laws are unconstitutional, far from it. I’m just pointing out that you have to make the case for such laws under some sort of intermediate or strict scrutiny. Simply arguing that “well we disenfranchise felons don’t we?” is not enough to justify all felon in possession laws because the text that justifies disenfranchisement laws does not apply to the 2nd amendment.
February 23, 2010, 6:58 pmOrenWithAnE says:
Sure it does, Scalia took pains in Heller to distinguish those “longstanding prohibitions” that are rooted in this nation’s history. There is a mountain of caselaw from the early 19th century delineating how the contemporaries of the 2A viewed its scope, almost none of it affirms the kind of wide-ranging interpretation as you have given voice here.
[ I should add that, depending on the details, I might support such a wide-ranging right on policy grounds. ]
February 23, 2010, 7:15 pmsubpatre says:
Considering that Bellesiles is about the most biased, most unscupulous —and most thoroughly impeached— source in modern law-related academia; trying to ‘cite his claims that are well documented‘ is futile.
If you have evidence, cite the evidence. Bellesiles’ work, including his (manufactured) citations, footnotes, endnotes, or references is not credible at any level. Bellesiles has been proven completely dishonest, and reliance on him exposes your argument to be fraudulent as well.
February 23, 2010, 7:16 pmAnym_Avey says:
The defendent’s statements may be admissible but they are being filtered through a third party (in this case, a single police officer), and unless I have been mislead, I thought an “admission against interest” was/is a form of hearsay evidence.
I also fail to see the value of “If he doesn’t like what he is hearing, he can take the stand and rebut” when one of the cornerstones of the US criminal justice system is the right to not self incriminate.
February 23, 2010, 7:39 pmcboldt says:
– Scalia took pains in Heller to distinguish those “longstanding prohibitions” that [Scalia claims] are rooted in this nation’s history. –
February 23, 2010, 8:56 pmGiven obvious errors in fact in Scalia’s opinion (e.g., “Miller was convicted”), I think it is imprudent to take any fact he asserts, on faith. A couple cites noted in Kopel’s The Right to Arms in the Living Constitution, appear to be good starting points for fact-checking the justice.
cboldt says:
– And yet Colonial MA prohibited firearm ownership by indentured servants or Catholics. –
February 23, 2010, 9:22 pmEmphasis on colonial, i.e., law from the King, not under the Articles of Confederation, or the Constitution.
See E. Volokh e-mail to Clayton Cramer, circa March 2004.
OrenWithAnE says:
Many States had such laws on the books much before this. Arkansas in 1864, NY in 1911, Oregon in 1925.
February 23, 2010, 10:10 pmThe Volokh Conspiracy » Blog Archive » The Second Amendment and Domestic Violence Misdemeanants says:
[...] day after the Seventh Circuit agrees to rehear en banc a panel’s earlier decision in U.S. v. Skoien on this subject, the Fourth Circuit has decided to [...]
February 23, 2010, 10:38 pmcboldt says:
– Many States had such laws [lifetime ban on the possession of any gun by persons convicted of almost any felony] on the books much before this. Arkansas in 1864, NY in 1911, Oregon in 1925. –
February 23, 2010, 10:44 pmI’d enjoy reading those statutes. Based on your past track record of representing statues, I’m going to harbor doubt that those statutes worked the same sort of ban that is currently in place, and touted as “longstanding practice.” Not saying you are wrong, just that I’d like to read the source documents that support the contention.
cboldt says:
Oregon: http://www.publications.ojd.state.or.us/S055674.htm
Reading on (but not reaching back to the history of scope of the prohibition in 1925) …
ORS 166.270 (2009)
February 23, 2010, 11:06 pmcboldt says:
Oregon’s 166.270 circa 1977 appears limited in scope. The prohibition on felon in possession at that time appears to be limited to concealable weapons. http://www.publications.ojd.state.or.us/S055567.htm
I don’t know if the statutory “expungement” of a single felony after 15 years was also in place at that time.
February 23, 2010, 11:15 pmAsh says:
The text I am referring to is the language in the 14th amendment regarding the apportionment of representatives, a calculation that removes from that number those who participate “in rebellion, or other crime.” This text justifies disenfranchisement because Article 2 talk about the right to vote and when the right to vote can be denied. It has nothing to do with gun ownership. If there are longstanding prohibitions against gun ownership that’s all fine and dandy and certainly can be a basis to a 2nd amendment restriction. But that would be done by looking to the 2nd amendment and interpreting that text in light of the historical treatment of that text… not interpreting Article 2. You can’t find support for restrictions in gun ownership in the Article 2 of the 14th because it doesn’t say anything about gun rights there.
February 23, 2010, 11:27 pmOrenWithAnE says:
Cbolt, the Sullivan Act was passed in New York State in 1911.
Well, I disagree. I don’t think you look to the text, I think you look to the the “terms of the RKBA as publicly understood when the Bill of Rights was ratified”.
When the BOR was ratified, the States broadly had the power to exclude undesirables from possessing firearms.
February 23, 2010, 11:59 pmcboldt says:
– the Sullivan Act was passed in New York State in 1911 –
February 24, 2010, 12:10 amWell, the year 1911 is certainly not contemporaneous with forging of the 2nd amendment, but also, you haven’t cited what it says about felons in possession. The Sullivan Act is controversial for the hoops it erected against law-abiding citizens.
You have asserted that there are long-standing statutes or practices that work permanent (life-long prohibitions of possession, on a wide swath of felons, with the prohibitions predating the broad federal prohibition passed in 1968. You cited Oregon, New York, and Arkansas; but provided no substance. I managed to find the Oregon statute, but drew nothing useful on searching Arkansas and New York. What I’ve found so far shows me that at least the Oregon part of your contention doesn’t meet the “broad and life-long prohibition” criteria.
Of the two remaining states you cited, I’m more curious about the Arkansas statute.
OrenWithAnE says:
I agree without qualification, it ought to be amended. I’m trying to find the original text, without success.
The Arkansas statute might not count, actually, since it was promulgated under the provisional government not yet readmitted into the union. I’ll have to look deeper there.
February 24, 2010, 12:30 amLarryA says:
The Sullivan Act was, and is a gun licensing act that limits legal ownership of firearms, particularly handguns. Haynes v. U.S. was decided on 1/29/1968, holding that gun registration and licensing laws require a felon to incriminate himself and thus violate his Fifth Amendment rights. Therefore you can’t convict a felon for violating the Sullivan Act.
February 24, 2010, 12:57 amOrenWithAnE says:
The Sullivan Act, as originally passed, contained an independent bar on felon-in-possession. You can’t convict for lying on the application or failure to register but I don’t see how the 5A concern acts on the FIP ban.
February 24, 2010, 1:48 amsubpatre says:
No contemporary accounts on its passage mention this ‘feature’. The Sullivan Law’s intent was to give an advantage to one group of thugs over another (newer or upstart) group of thugs, its object was to give utter and total discretion or choice to the police. Prohibiting possession by felons would have been contrary to its purpose and its character.
Given OrenWithAnE’s recent posting history —from depending on Michael Bellesiles perjured work to manufacturing ‘evidence’ or ‘examples’— a direct, accessible link is needed to support his misbegotten claims that:
• “the RKBA was intended to apply [only to] to law-abiding citizens.”, or
• “Many States had such laws on the books much before [1968].” or
• “The Sullivan Act [ever had a] bar on felon-in-possession. ”
February 24, 2010, 8:49 amcboldt says:
– The Sullivan Act, as originally passed, contained an independent bar on felon-in-possession. –
Where is the original text that you are referring to? Or at least a credible citation. I’d like to read that independent bar for myself. Everything I’ve found so far describes the Sullivan Act as a “may issue” handgun licensing scheme, and offers no more.
February 24, 2010, 8:52 amOrenWithAnE says:
There are plenty of cites for that:
See also: Oregon v.Hirsch
February 24, 2010, 11:05 amJeremyKidd says:
Just one quick point, and then I’ll leave it alone. A conviction on state grounds can be based on a wide range of actions, some which raise legitimate concerns regarding gun ownership, and some which don’t. You are correct that a state DM conviction meets the requirements for conviction under 922(g)(9), and legally subjects the defendant to federal jail time. My point has always been that the wide variety of actions that constitute a DM conviction under (g)(9) make me nervous, because while there is nothing wrong, legally, with pursuing a conviction against anyone who has a state DM conviction and possesses a firearm, it is certainly more questionable, morally, to expend tax dollars to deprive someone of their liberty because they: (1) currently possess a gun; and (2) had a single verbal altercation 20-30 years ago.
February 24, 2010, 11:21 amOrenNotKerr says:
I agree, but I vest that discretion in the legislature, not the prosecutors office.
A DA can rightly refuse to prosecute a marginal case but it seems, IMHO, outside bounds (not legally, of course) to refuse to prosecute a slam-dunk case such as this.
February 24, 2010, 11:43 amOrenWithAnE says:
Oh, and since that legislature can reclassify DV as a felony anyway, it seems foolish to engage in this sort of brinksmanship.
Also, I will eat my hat publicly in front of cboltd and subpatre if the Court ever strikes down a felon in possession law on 2A/14A grounds (I might see a Lopez-style knockdown of the Federal one, although that’s a longshot too).
February 24, 2010, 11:46 amcboldt says:
– I will eat my hat publicly in front of cboltd and subpatre if the Court ever strikes down a felon in possession law on 2A/14A grounds –
February 24, 2010, 12:12 pmWell, my point wasn’t that the Courts are inclined to strike down felon in possession, or even the domestic-violence misdemeanant. In fact, I’ve stated my prediction and belief that the federal courts will find these laws to be constitutional. All it’s doing at this point is creating the necessary paperwork formality to support it’s decision. I happen to disagree with the Courts’ holding, in part based on the Court’s dishonesty regarding precedent. I also doubt the veracity of the Court as it asserts history, for example the presence of (or more particularly, the scope of meaning of) “long standing prohibition on possession.”
cboldt says:
– Oh, and since that legislature can reclassify [speeding, parking tickets, littering, jaywalking, parking violations] as a felony anyway, it seems foolish to engage in this sort of brinksmanship. –
February 24, 2010, 12:35 pmMy point being that it isn’t per se foolish to challenge the legislature, or the application of statutory law. Others have pointed out the scope of “domestic violence misdemeanor,” and in my opinion, their arguments have merit. Your position strikes me as blindly adhering to the legislature and a willingness to bootstrap the federal felony (it’s a slam dunk, you say) from a domestic shouting match.
subpatre says:
From 100 NYT articles on the “Sullivan Law”; from 1910 to 1936; several quite detailed on the law’s provisions. There was no prohibition in that law to felons possessing firearms. Oren simply made it up.
Similarly, the reference to Kates says no such thing (only “law-abiding” citizens). The ‘cite’ to Reynolds is an out-of-context quote, in a portion that refers to Kates (!) where Kates is discussing English Law; not American, state or Constitutional law. LOL
Now he’s moving the goalposts to defend against strikedown of felon in possession, when the thread is about DV misdemeanors. Oren’s simply flinging feces hoping some bits stick.
February 24, 2010, 1:07 pmPintler says:
From Robert Jackson’s famous speech:
“Law enforcement is not automatic. It isn’t blind. One of the greatest difficulties of the position of prosecutor is that he must pick his cases, … What every prosecutor is practically required to do is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain.”
The posited apparently-harmless-felon-in-possession cases meet the ‘proof most certain’ prong, and maybe ‘flagrant’, but seem to fall down on the ‘public harm’ prong. Surely there are some cases where declining to prosecute wouldn’t be out of bounds.
February 24, 2010, 1:12 pmKevin R.C. O'Brien says:
Of course, in the state of MA gunning your brother down, trying to carjack a citizen, and [probably] pipe-bombing the boss who edged you out, gets you a wink and a nod from the Commonwealth’s corrupt prosecutors. If your family is active in the Party.
If you’re politically connected, the VM becomes Leaving the Scene. Or gets broomed entirely.
If it actually was a cold, brutal murder you’re out in seven to ten to kill again, and you can vote while you’re in the jug.
The police… I know of one who finally went to Concord for about his twentieth rape-by-badge, after prosecutors heaped scorn on his earlier victims, and browbeat them to withdraw their charges — it was justice despite the lawless lawyers and licentious lawmen. See, X was a connected cop, his father had been the state rep, his brothers were cops and court officers. In the same town, a beaten-bloody wife was subjected to an “intervention” by half the town cops and the local prosecutors to retract her story so that good old Y could keep his job in the family business: “corrupt cop.” There’s a story like this in that town every couple of years, multiplied by two hundred-odd towns in Mass. It’s government of men, not of laws; the laws are mere tools used by the worst of men.
And then, there’s the silk-glove treatment of criminals that aren’t even cops. My personal favorite was Judge Maria Lopez, who sentenced a gender-confounded armed child rapist to house arrest in the same building with his/her/its victim. Lopez could always count on the Boston Globe for support (one editorial: “We need more judges like Lopez!” Don’t sweat, Globies, she’s typical). Because her husband was a Globie, naturally — forget whether he was an editor or an executive. Massachusetts judges not only know the doors of justice swing both ways, they believe the doors have no locks. No wonder they gave Lopez a reality show!
If Massachusetts’s released skells stayed in the People’s Republic, that would be one thing, but they don’t. Massachusetts prosecutors and judges are the motive power behind a 49-state crime wave.
A District Attorney is a larval form of politician, and in a one-party state, the man with connexions is king. A lower form of politician simply doesn’t have to bend so far to kiss the ring.
February 24, 2010, 1:49 pmKevin R.C. O'Brien says:
I think you’re right about that. Misdemeanant in possession, longshot possibility. Felon in posession, no chance in hades. The Supreme Court — and any state top court likewise — is a hybrid of law and politics.
The legal system can also be slow to react to changes in the body politic. Courts and law schools are still much more amenable to 1960s-style “gun control,” which has had fifty years to get a bad reputation with the public. Frank Lautenberg, the author of the law in question in this thread, is a child of that 1960s ethos.
It seems self-evident to a certain cohort that passing laws against guns will reduce violent crime. Instead it has proven a pathway wroth with unintended consequences. For example, the pursuit of Project Exile paperwork cases instead of using felon-in-possession against actual violent criminals. No one knew that prosecutors and investigators would take the easy slam-dunk. Heck, no one thought such a possibility existed: Lautenberg may have been looking to advance his gun control agenda, certainly, but he also thought his law would be used against men who were actually hazardous to their women. He meant well, you have to give him that.
February 24, 2010, 2:27 pmOrenNotKerr says:
Well, the Federal felony is a slam dunk — any defense counsel whose client has a MDV conviction and was possessing a gun is well advised to plead because he has no chance of winning. That’s the definition of a slam dunk.
It helps to read the thread, we were discussing FIP because it was observed that, if the Court grants the relief in question, the legislatures of the various States would likely elevate MDV to felony status. Thus, they would accomplish the effect ( albeit prospectively, not retrospectively) with the net result being far worse impairment of the rights of DV offenders.
To this assertion, Off Kilter (2:31AM) then asserted that the Court ought to ask about general FIP, which I think have basically zero chance of being overruled under the ‘longstanding’ dictum in Heller (and apparently cboltd agrees on this result but not the rationale).
February 24, 2010, 3:58 pmOrenNotKerr says:
I will agree that the characterization of the MDV-IP ban as ‘longstanding’ was absurd.
February 24, 2010, 3:59 pmOrenNotKerr says:
2/3 ain’t bad. Certainly they prosecute a lot of cases where the proof is questionable or the conduct unwitting.
Kevin, I have no idea why a cite of the MA MVH/MVM statutes (in response to an incorrect assertion) merits a rant against MA lawmen in general (which I have known for the better part of a decade to be professional, but that’s entirely besides the point).
February 24, 2010, 4:07 pmStefani Karakas says:
Nice, Very nice
February 25, 2010, 2:47 pmJohn Bates Thayer says:
The RKBA should be treated no differently than any other civil right. Unless felons are to lose ALL of their rights they should not lose any!
February 26, 2010, 9:34 pmAnonymice says:
Why is it the police officers, who take their loaded guns home every night, are exempt from Lautenberg enforcement, while soldiers who are only allowed live ammo on the range or in combat are losing their careers over it?
April 3, 2010, 11:49 pm