PubliusFL: 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.

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?

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.

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).

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.”

I will agree that the characterization of the MDV-IP ban as ‘longstanding’ was absurd.

My 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.

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.

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.

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).

OrenWithAnE: 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 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.

OrenWithAnE: 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

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.

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.

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.

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.

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).

… 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.

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.

Oren__: 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. 

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.

• “the RKBA was intended to apply [only to] to law-abiding citizens.”, or

There are plenty of cites for that:

* Don B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich L Rev 204, 266 (1983)

* Glenn Harlan Reynolds, A Critical Guide to the Second Amendment, 62 Tenn L Rev 461, 480 (1995) (“felons, children, and the insane were excluded from the right to arms precisely as (and for the same reason) they were excluded from the franchise”);

* Akhil Reed Amar, The Bill of Rights as a Constitution, 100 Yale LJ 1131, 1164 (1991) (“the right to bear arms, like the right to vote, is a political right conferred on citizens, not on all people without qualification”).

See also: Oregon v.Hirsch

But the right was understood to be conditioned upon the citizenry continuing to abide by the law. Pennsylvania, for example, proposed that there be a constitutional right to bear arms and that “no law shall be passed for disarming the people or any of them unless for crimes committed.” Bernard Schwartz, 2 The Bill of Rights: A Documentary History, 665 (1971).

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.

OrenWithAnE claims: “The Sullivan Act, as originally passed, contained an independent bar on felon-in-possession.”

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. ”

OrenWithAnE: Cbolt, the Sullivan Act was passed in New York State in 1911.

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.

The Sullivan Act is controversial for the hoops it erected against law-abiding citizens.

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.

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.

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.

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.

Sure it does, Scalia took pains in Heller to distinguish those “longstanding prohibitions” that are rooted in this nation’s history.

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.

“Any person who has been convicted of a felony under the law of this state or any other state, or who has been convicted of a felony under the laws of the Government of the United States, who owns, or has in his possession or under his custody or control any pistol, revolver, or other firearms capable of being concealed upon the person, or machine gun, commits the crime of exconvict [sic] in possession of a firearm.” ORS 166.270(1) (1977)

I don’t know if the statutory “expungement” of a single felony after 15 years was also in place at that time.

ORS 166.270(1). That statute provides that a person commits the crime of being a felon in possession of a firearm if the person “has been convicted of a felony * * * [and] owns or has in the person’s possession or under the person’s custody or control any firearm.” … The original version of what is now codified as ORS 166.270 was enacted in 1925, and the acts constituting “possession” under that statute have not changed since.

Reading on (but not reaching back to the history of scope of the prohibition in 1925) …

ORS 166.270 (2009)

(4) Subsection (1) of this section shall not apply to any person who has been:
(a) Convicted of only one felony under the law of this state or any other state, or who has been convicted of only one felony under the laws of the United States, which felony did not involve criminal homicide, as defined in ORS 163.005, or the possession or use of a firearm or switchblade knife, and who has been discharged from imprisonment, parole or probation for said offense for a period of 15 years prior to the date of alleged violation of subsection (1) of this section; …

noting that a lifetime ban on the possession of any gun by persons convicted of almost any felony dates only to the federal Gun Control Act of 1968

Many States had such laws on the books much before this. Arkansas in 1864, NY in 1911, Oregon in 1925.

Nelson Lund, The Second Amendment, Heller, and Originalist Jurisprudence, 56 UCLA L. REV. 1343 (2009), available at http://www.ssrn.com/abstract=1324757; C. Kevin Marshall, Why Can’t Martha Stewart Have a Gun?, 32 HARV. J.L. & PUB. POL’Y 695 (2009) (noting that a lifetime ban on the possession of any gun by persons convicted of almost any felony dates only to the federal Gun Control Act of 1968)

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.

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.

Oren__ writes: I have tried only to cite his claims that are well documented by original sources.

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.

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.

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. ]

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.

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.