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Another Thinly Reasoned District Court Response to D.C. v. Heller:

From U.S. v. White (S.D. Ala. Aug. 6) (Steele, J.):

On June 4, 2008, following a jury trial, defendant Ludivic White, Jr., was convicted of the offense of possession of a firearm after having been convicted of a misdemeanor crime of domestic violence, in violation of 18 U.S.C. § 922(g)(9) ....

Defendant now maintains that the ... Indictment should be dismissed in light of the Supreme Court’s recent decision in District of Columbia v. Heller, wherein the Court determined that “the Second Amendment conferred an individual right to keep and bear arms,” albeit not an unlimited right. In identifying broadly the scope of those limitations, the Supreme Court emphasized that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Furthermore, a footnote accompanying that passage reads as follows: “We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.”

Title 18, United States Code, Section 922(g) is unquestionably a longstanding prohibition on the possession of firearms by certain classifications of people. Indeed, the Heller Court’s illustrative list of prohibitions on the constitutionality of which it was explicitly not casting doubt included § 922(g)(1) (possession of a firearm by a felon) and § 922(g)(4) (possession of a firearm by one who has been adjudicated as mentally defective or who has been committed to a mental institution). On its face, then, Heller did not disturb or implicate the constitutionality of § 922(g), and was not intended to open the door to a raft of Second Amendment challenges to § 922(g) convictions.

White’s Motion to Dismiss would place far more weight on the Heller decision than its plain text can reasonably bear. Indeed, every federal court to examine Heller in the face of objections similar to White’s has similarly concluded that it did not invalidate § 922(g). See, e.g., United States v. Gilbert, 2008 WL 2740453, *2 (9th Cir. July 15, 2008) (“Under Heller, individuals still do not have the right to possess machineguns or short-barreled rifles, as Gilbert did, and convicted felons, such as Gilbert, do not have the right to possess any firearms.”); United States v. Robinson, 2008 WL 2937742, *2 (E.D. Wis. July 23, 2008) (rejecting Heller challenge to constitutionality of § 922(g)(1), and noting that “no court has, even under an individual rights interpretation of the Second Amendment, found 18 U.S.C. § 922(g) constitutionally suspect”); United States v. Walters, 2008 WL 2740398, *1 (D.V.I. July 15, 2008) (denying motion to dismiss § 922(g) count on Heller grounds).

In the absence of any indication by the Eleventh Circuit or the Supreme Court that the principles enunciated in Heller call into question the constitutionality of § 922(g), much less any guidance concerning the proper legal standards to apply to any scrutiny of that statute under the Second Amendment, the Court will take Heller at its word, as did the courts in Gilbert, Robinson, and Walters, that it did not cast doubt on the validity of prohibitions such as those found at § 922(g)....

What's missing here, though, is any real analysis of whether § 922(g)(9), which applies not to felons or the mentally infirm but to certain convicted violent misdemeanants, is constitutionally permissible. Perhaps it is, but simply citing language from Heller or other cases that deals with other sections doesn't, it seems to me, dispose of the matter. This is especially so given the traditional distinctions (whether always wise or not) in legal consequences between felonies and misdemeanors, and the fact that Heller so expressly relied on the tradition behind the restrictions that it expressly validated — a tradition that (again, rightly or wrongly) doesn't obviously apply to violent misdemeanors.

Now it may well be that violent misdemeanants properly could be denied the right to own a gun, even after their sentence has expired; there may be theories that would justify that. But this court's simple reliance on precedents that deal with other statutes (which are in some ways similar and in some ways different) strikes me as unsound.

Smokey:
At least this guy was convicted. When buying a gun in California [and maybe in the entire U.S.], you must answer if you are subject to a restraining order. I assume if you say, "Yes," you don't get the gun.
8.11.2008 9:18pm
Mike& (mail):
Title 18, United States Code, Section 922(g) is unquestionably a longstanding prohibition on the possession of firearms by certain classifications of people

Dodgeball! While Section 922 has existed for a while, Section 922(g)(9) - the actual provision at issue - has been law for all of a dozen years.

Subsection (g)(9) was part of Clinton's broader gun-control efforts. Many theorized (quite plausibly) that Clinton's end-game was to ban possession of firearms by all misdemeanants.

In any event, how is a 12-year-old law "longstanding"?
8.11.2008 10:03pm
krs:
I wonder if the the thinly-reasoned opinions are in response to thinly- or barely-reasoned briefs.

It's admirable when district court judges write well-reasoned opinions grappling honestly and comprehensively with open issues created by recent Supreme Court decisions (Judge Cassell's work following Blakely and Booker comes to mind).

However, (1) many district courts have backlogged dockets and (2) their opinions aren't binding on anyone outside of the immediate case, so they have fewer reasons than courts of appeals to be meticulous and thorough when addressing open legal questions.

The costs of writing a less "thinly reasoned" opinion are multiplied when a party's briefs are incoherent or perfunctory. If the logic of a defendant's brief amounts to little more than the idea that Heller wipes all gun possession crimes off of the book, then it seems sufficient to me to just refer the defendant to the dicta in Heller where the majority remarks on which laws it isn't questioning. If, instead, the court gets a Seth-Waxman-quality argument that the defendant's Second Amendment rights are actually implicated, then I'd be more ready to criticize thin reasoning.

I say this based on general views from my past experience as a clerk but without having seen any of the briefs in the cases Prof. Volokh has been collecting. It could be that the briefs are better than I suspect they are.
8.11.2008 10:13pm
tdsj:
So... 922(g)(3) makes it illegal for any "unlawful user" of any of the 150+ substances in the CSA to possess a firearm. That (if unlimited by any judicial gloss) could strip the Second Amendment rights of approximately 100 million Americans.

And according to this judge, that's all ok, just because it's part of 922(g)?

What if Congress just keeps making 922(g) bigger and bigger? Keeps adding more and more classifications... like all misdemeanants... or anyone with a traffic ticket... or parking ticket?

Stupid.
8.11.2008 10:14pm
Mike& (mail):
KRS: You make a fantastic point. I pulled up the brief filed in support of the motion to dismiss. You can read judge for yourself how persuasive it is. Brief here.
8.11.2008 10:24pm
Bruce Hayden (mail) (www):
The problem here is that being convicted of a misdemeanor of domestic violence doesn't necessarily mean that the guy actually committed such. Rather, it is common in many parts of the country for the cops to have to arrest someone in the case of a domestic violence call, and that person is more often than not the guy, regardless of merit. So, he is offered a plea deal where he doesn't do any time, cops to it, and finds that he can't own a gun for the rest of his life. I am sure that the prosecutor most often does not mention this, and if unrepresented by competent counsel is likely not to know of this little twist in the law.
8.11.2008 10:31pm
Bobo Linq (mail):
KRS is right to point out the significance of the fact that this is a district-court decision. District courts resolve disputes; appellate courts make law. In a case like this, the district court's job is to make its best guess about what a higher court would hold if faced with the legal question the case presents. The district court's job is not to exhaustively justify its guess.

In this case, the district court's guess is pretty good, and there's nothing wrong with the basis of its guess (an appeal to precedent rather than to some underlying logic).

Professor Volokh's criticism would be apt if this were a circuit-court decision. But, speaking as someone who has clerked at a federal appellate court and a federal district court, I think this district judge did exactly what we want district judges to do.
8.11.2008 10:45pm
Constitutional Crisis (mail):
Based on the quoted language of Heller, I'd be pretty quick to call the judge a "activist judge" if he wrote an opinion overturning the conviction - even a "well reasoned" one.

Of course, I guess since it's the conservative position, I'd be wrong to call the judge activist since we all know there's no such thing as an activist conservative opinion.
8.11.2008 11:05pm
Duffy Pratt (mail):
The trouble I see with all these opinions is that they take dicta in Heller and read it as if ti were law. Heller disposed of these points, which were not issues before it, with a very broad brush. After the awful, and inappropriate, reasoning on this point in Heller, its a bit harsh to be very critical of the District Court.
8.11.2008 11:07pm
Tony Tutins (mail):
Mike and KRS are right. The defendant's lawyer made no effort to argue that lifetime sanctions that may be appropriate to a felon are overly harsh for a mere misdemeanant, even if he had been convicted of domestic violence. He merely noted that the D's conviction had not involved a firearm. As I recall, there's plenty of Brady Bill caselaw to cite (although at first glance it would not be very helpful). The brief reads like he knocked it out on his lunch half-hour.
8.11.2008 11:29pm
J. Aldridge:

“Under Heller, individuals still do not have the right to possess machineguns or short-barreled rifles, as Gilbert did, and convicted felons, such as Gilbert, do not have the right to possess any firearms.”

My question is why? If the pre-factory clause does not serve to limit arms to those belonging to a militia, then the right to bear arms means any arms without exception.
8.11.2008 11:29pm
Dave Hardy (mail) (www):
One question I've always had, as to DV convictions entered before the amendment that made the convicted defendant a prohibited person, and convictions entered on a plea:

It is standard doctrine that a person cannot knowingly plead out without something approaching a full knowledge of the consequences of waiving constitutional rights to jury trial, confrontation, etc.. If there were major consequences of which the defendant was uniformed, the plea is invalid.

So what happens when a person enters a plea, and the legislature retroactively changes the consequences of the plea and conviction?

I'd think this a subset of the ex post facto ban. In this context, courts get around that by noting that an element of this offense (possession of the firearm) must occur after the effective date of the law, and shuffling around the "no increased punishment" subset by one means or another. But in the context of a plea, which must be knowing, is there a considerable difference?
8.11.2008 11:42pm
Order of the Coif:
Many people did plead guilty on the advice of counsel, in effect, that the $100 fine was much less than the $3000 potential legal fee because "after all, there is no downside to a mere misdemeanor conviction."

I know, much to my embarrassment, because I told clients just that some 30 years ago. Every lawyer in town did the same. Because for almost 200 years it WAS true in America.

Neither the felonization of criminal law nor the creeping enhancement of collateral consequences of lesser crimes had yet begun. Defense counsel didn't think they needed a crystal ball in 1974.
8.12.2008 12:45am
Mike& (mail):
If there were major consequences of which the defendant was uniformed, the plea is invalid

If only! There are many people who pled to sex-based offenses who are now on sex offender registries. They had no clue they'd end up there.

How can a plea be knowing, voluntary, and intelligent if you didn't know that pleading guilty would require you to register as a sex offender?

Nevertheless, courts for the most part will not invalidate the plea on any of those grounds. See, e.g., State v. Nolte ("We conclude that Nollette s guilty plea is not invalid due to the district court s failure to inform him of the sex offender registration requirements [].")
8.12.2008 1:37am
ReaderY:
It seems to me all the court would have to do here is cite United States v. Emerson. Since Emerson assumed a legal framework that on its face seems consistent with the Heller framework, it would seem fairly straightforward to argue that nothing in Heller undermined it and hence it remains a valid precedent for addressing the 2nd Amendment's limits. I understand this would require a few additional sentences, but it strikes me as relatively easy to do. Given the Emerson precedent, which addressed not a conviction but a mere restraining order, the viability of the decision from the point of view of a lower court doesn't seem to be in serious jeapardy.

Emerson involves an unessentially uncontested, pro forma restraining order. It does strike me that an order that has the effect of causing one to lose a substantial constitutional right requires more process than the case described, including notice that the right is implicated.
8.12.2008 2:51am
Tony Tutins (mail):

convicted felons, such as Gilbert, do not have the right to possess any firearms.”

My question is why? If the pre-factory clause does not serve to limit arms to those belonging to a militia, then the right to bear arms means any arms without exception.

Originalism helps us understand the reason for this exception. At the time the Constitution was drafted, felons were punished with death -- in the colonies, the death penalty was the punishment for no less than 120 different crimes. Obviously a man who has lost his right to life has no right to arms. Any rights that felons now enjoy are at the sufferance of the rest of us.
8.12.2008 3:00am
Brett Bellmore:

Since Emerson assumed a legal framework that on its face seems consistent with the Heller framework


Precisely: "On it's face"; In the Emerson case, we got the rhetoric of a constitutional right, but only the rhetoric. In reality the 5th circuit treated this right as though it were a mere privilege, which could be extinguished for the lightest and most transient of reasons.


My question is why? If the pre-factory clause does not serve to limit arms to those belonging to a militia, then the right to bear arms means any arms without exception.


The why is, because you couldn't get together 5 Justices who were willing to acknowledge a right to own machine guns, or contemplate overturning any existing federal laws. So instead of the right the founders gave us, to military arms comparable to what ordinary infantry are expected to carry, they crafted a right to whatever hadn't already been effectively banned at the federal level.

Scalia's test, whether the arm in question is commonly owned and used, (Where what's commonly owned and used is a fact on the ground created by existing, arguably unconstitutional laws) is just a way of grandfathering in the arms we're permitted to own by existing federal law, without risk of overturning that law, or constraining regulation of future advances in firearms technology. It's not very originalist.
8.12.2008 7:56am
Chris Lund (mail):
"Originalism helps us understand the reason for this exception. At the time the Constitution was drafted, felons were punished with death -- in the colonies, the death penalty was the punishment for no less than 120 different crimes. Obviously a man who has lost his right to life has no right to arms. Any rights that felons now enjoy are at the sufferance of the rest of us."

This won't work, Tony Tutins. On this theory, felons have no constitutional rights at all -- after release, they would have no right to complain about prior restraints of their speech, government takings of their property, or any constitutional problems at all arising from any further prosecutions. That's never been our way.

The question remains: Is there any originalistic justification for the ban on felons, the mentally ill, or those who have committed violent misdeamenors? I think this would require evidence that the Framers specifically considered the question, and decided that people in those categories were ineligible for gun ownership. Is there any evidence of that?
8.12.2008 8:37am
PersonFromPorlock:
At this point, Heller seems to have changed the official understanding of the Second Amendment from "The Second Amendment recognizes a state right. So what?" to "The Second Amendment recognizes an individual right. So what?" Given the Court's tendency to cite practice as its own justification, we may have won less here than we thought.
8.12.2008 8:52am
PersonFromPorlock:
Chris Lund:

The question remains: Is there any originalistic justification for the ban on felons, the mentally ill, or those who have committed violent misdeamenors? I think this would require evidence that the Framers specifically considered the question, and decided that people in those categories were ineligible for gun ownership. Is there any evidence of that?

From "The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents" (December 12, 1787):

7. That the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to and be governed by the civil powers.
8.12.2008 8:59am
Justin (mail):
As entertaining as it is for the conservative legal realists to come out of the woodwork, it appears that the decision seems correct under Heller. Although Section III Of the Heller majority does specifically use the word "felon," it certainly appears that what the Court was saying was that ownership of firearms may be prohibited basd on rational-basis discrimination. Certainly, discriminating against allowing those convicted of domestic abuse - whether classified a misdemeanor or a felony - is a rational discrimination. Indeed, it is probably more rational to forbid a gun to a person convicted of a violent misdeameanor than a nonviolent felon, and yet Scalia's opinion, at least on its face, says that all felons can be prohibited from owning guns.

If anyone is to blame for the district court's cursory dealing with Heller, it's the majority opinion, for failing to provide some understanding of the exact contours of the right described in Heller.
8.12.2008 10:29am
Houston Lawyer:
I seem to recall the last time that I purchased a gun that the form I signed wanted me to state that I was not in arrears in paying child support. I would support a law that tied your right to vote to your right to buy a gun. Sauce for the goose.
8.12.2008 11:06am
Clayton E. Cramer (mail) (www):

This won't work, Tony Tutins. On this theory, felons have no constitutional rights at all -- after release, they would have no right to complain about prior restraints of their speech, government takings of their property, or any constitutional problems at all arising from any further prosecutions. That's never been our way.

The question remains: Is there any originalistic justification for the ban on felons, the mentally ill, or those who have committed violent misdeamenors? I think this would require evidence that the Framers specifically considered the question, and decided that people in those categories were ineligible for gun ownership. Is there any evidence of that?
Oddly enough, when I started researching this, I was unable to find any evidence of felons being disarmed after release. Even more startling, places like Pennsylvania in the 1790s were not simply releasing felons upon completion of sentence, but pardoning them.

The mentally ill is another matter. Involuntary commitment of the mentally ill was fairly informal in Colonial and Revolutionary America--and remained that way until the 1860s. Because the theory of involuntary commitment was that this was for the protection of those who were mentally ill--done under parens patriae, not under the police power--the courts were pretty relaxed on constitutional rights questions. Pretty obviously, a mentally ill person who was being held against his will in an almshouse, jail, or especially after the 1770s onward, in a mental hospital, had no right to be armed. (There's a paper about Second Amendment limitations by Don Kates and myself that is being circulated right now that discusses this in some detail.)

As late as the 1930s, about half of all psychotics in the U.S. were institutionalized. Today it is about 5%. There's a reason that we didn't worry too much about mentally ill people with guns until the 1960s--and that is because most people who were considered dangerous to others because of mental incapacity weren't wandering the streets. The deinstitutionalization movement created a situation that the Framers didn't worry about, because they didn't need to worry about it.
8.12.2008 11:15am
Clayton E. Cramer (mail) (www):

If anyone is to blame for the district court's cursory dealing with Heller, it's the majority opinion, for failing to provide some understanding of the exact contours of the right described in Heller.
The Court was trying to resolve a specific question. This happens when the Court declares a right--it opens up a swarm of new questions, as happened with Lawrence, for example. Take a look at the number of cases where lawyers used that decision's apparently open-ended declaration of a right to challenge laws protecting the mentally retarded, laws prohibiting sex in public restrooms, etc.
8.12.2008 11:18am
Clayton E. Cramer (mail) (www):

On this theory, felons have no constitutional rights at all -- after release, they would have no right to complain about prior restraints of their speech, government takings of their property, or any constitutional problems at all arising from any further prosecutions. That's never been our way.
If you mean that it hasn't been the American way, you are correct. But felony had the notion of "social death" in English law, and felons often lost just about everything, if they were allowed to live. There was a conscious decision in more progressive places, such as Pennsylvania, that the social death idea of felony needed to go away.

Still, I do ask this question: why do we have laws that define all convicted felons--even if the felony is non-violent or even trivial, and even if the felony was fifty years ago--as untrustworthy with guns, but trusted with other rights? The ACLU has been working for a long time on getting the courts to strike down loss of voting rights for convicted felons. They are doing it on the wrong grounds--claiming that these laws were passed for racist reasons, and continue to have racist disproportion. But if states lack the authority to disfranchise former felons, why do they have the authority to disarm former felons?
8.12.2008 11:24am
Mack (mail):
"So, he is offered a plea deal where he doesn't do any time, cops to it, and finds that he can't own a gun for the rest of his life."
Bad enough.
But let's discuss Dave Hardy's post above.
Cops a plea prior to Lautenberg amendment passage and now is prohibited for life due to a misdemeanor conviction.
How is that not ex post facto?
Where's the due process in that? Or fairness?
8.12.2008 12:06pm
KRS:
Mike,

Thanks for finding the brief. It does take a crack at arguing that there was evidence to show that White had a legitimate reason to fear for his safety and that he acquired the gun for self-defense (and thus isn't just one more guy with a felony record and a gun), but there isn't much that can be said for the brief beyond that.

If there's a good argument to be made that White's conviction is invalid, perhaps White's appellate counsel can make it and thank his trial counsel for at least preserving the challenge.
8.12.2008 2:39pm
zippypinhead:
Cops a plea prior to Lautenberg amendment passage and now is prohibited for life due to a misdemeanor conviction. How is that not ex post facto? Where's the due process in that? Or fairness?
The argument makes intuitive sense. But it's been universally rejected by the appellate courts that have squarely faced the issue, applying a fairly standard ex post facto Constitutional analysis. The Fourth Circuit's explanation in U.S. v. Mitchell, 209 F.3d 319 (4th Cir. 2000) said it more succinctly than I can:
"To fall within the ex post facto prohibition, a law must be retrospective -- that is, it must apply to events occurring before its enactment -- and it must disadvantage the offender affected by it by altering the definition of criminal conduct or increasing the punishment for the crime." Lynce v. Mathis , 519 U.S. 433, 441 (1997) (citations and internal quotation marks omitted). It is immaterial that Mitchell's firearm purchase and domestic violence conviction occurred prior to § 922(g)(9)'s enactment because the conduct prohibited by § 922(g)(9) is the possession of a firearm [which occurred after enactment of the Lautenberg Amendment]."

Given the general dicta on felon-in-possession laws in Heller, I have a difficult time seeing any Court of Appeals making new law here. The Supreme Court might have a different view ultimately, but I think we will know more about the likelihood of this being a winner before the Justices someday after seeing what the Supreme Court does with U.S. v. Hayes, the case dealing with the definition of misdemeanor crime of domestic violence for 922(g)(9) purposes. That case is scheduled to be argued on November 10. The cert. grant has nothing directly to do with the ex post facto issue, but then again, Heller had nothing directly to do with felon-in-possession prohibitions either.
8.12.2008 3:28pm
FWB (mail):
What historical documentation is there to remove fundamental rights for misdemeanor offenses? What part of "shall not be infringed" does Congress not understand? Do not regurgitate the language concerning "compelling governmental interest". There ain't no good intentions clause in the Constitution. And there ain't no compelling interest clause there either. These are lies pulled out of the arses of the judges in orer to claim authority they do not have and to transfer ever more power to the government. If it ain't listed in the Constitution it ain't granted. I challenge every reader to prove to his/herself that there are no implied powers in the Constitution. To anyone who can read and apply logic the proof is as plain as day, if it was a snake it would have bit you.

Once more I leave yo with some quotes:


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


Learn this and remember, no part, piece, person or group in the government holds ANY authority to "define" the government. In so doing, that part, piece, person, or group violated fundamental law theory as discussed by Hamilton. Directly stated in a system where there is a Creator and a created, the Creator is the boss. Figure it out. Who's the boss? Hint: It ain't THEM.

Theses infringements are planned in order to move soceity down a particular path. You might check out the following books:
_The_Cult_of_the_Presidency_ and "Who_killed_the_Constitution?_

I also suggest you go back and read or reread _The_Road_to_Serfdom_. The tracks are so obvious that even a blind man could see them.
8.12.2008 3:35pm
whit:
iirc, one need not even be convicted of a true domestic violence crime to lose the right to possess a firearm. even crimes like vandalism, when having a domestic violence component (ie you destroy your girlfriend's property or in the case of married people in some jurisdictions - your OWN property).

consider the (pro) domestic violence vandalism hit "before he cheats" by carrie underwood where she...

"I dug my key into the side of his pretty little souped-up 4-wheel drive,
Carved my name into his leather seats
I took a Louisville slugger to both headlights
Slashed a hole in all 4 tires
Maybe next time he'll think before he cheats"

of course based on that amount of damage it would probably be a felony in most jurisdictions anyway.

and as i have claimed many times - more rights are infringed in domestic violence cases, with less due process (Imo) than the war on drugs. hands down. protective orders are a perfect example. they are hearings (not trials), and with a mere preponderance of evidence, in a politically correct arena (judges are often scared not to issue orders for obvious reasons), - if the order is issued. firearms rights are lost.

note also that judges routinely issue no-contact orders (at least where i live) after an arrest even where the victim doesn't WANT one issued- blatantly infringing on right to free association.
8.12.2008 3:53pm
zippypinhead:
whit wrote:
iirc, one need not even be convicted of a true domestic violence crime to lose the right to possess a firearm. even crimes like vandalism, when having a domestic violence component (ie you destroy your girlfriend's property or in the case of married people in some jurisdictions - your OWN property).
Actually, that's very much like the issue currently teed up before the Supreme Court in U.S. v. Hayes. The Fourth Circuit tossed a 922(g)(9) conviction because the misdemeanor general assault conviction didn't specifically include the "domestic violence" victim concept as an element of the offense.

Here's the merits brief of the United States, which argues the Circuit got it wrong.
8.12.2008 4:17pm
Clayton E. Cramer (mail) (www):

What historical documentation is there to remove fundamental rights for misdemeanor offenses?
None that I can find. At most, in a few places, persons who had committed minor crimes, such as game law violations, were prohibited from bearing a gun outside their own land.

What part of "shall not be infringed" does Congress not understand?
The Lautenberg Amendment was an attempt to deal with a serious problem--domestic violence that leads to murder--by unconstitutional means. Of course, our Constitution was written for a rather different society than the one that now inhabits much of America.

While our country remains untainted with the principles and manners which are now producing desolation in so many parts of the world; while she continues sincere, and incapable of insidious and impious policy, we shall have the strongest reason to rejoice in the local destination assigned us by Providence. But should the people of America once become capable of that deep simulation towards one another, and towards foreign nations, which assumes the language of justice and moderation while it is practising iniquity and extravagance, and displays in the most captivating manner the charming pictures of candor, frankness, and sincerity, while it is rioting in rapine and isolence, this country will be the most miserable habitation in the world; because we have no government armed with power capable of contending with human passions unbridled by morality and religion. Avarice, ambition, revenge, or gallanty, would break the strongest cords of our Constitution as a whale goes through a net. Our Constitution was made only for a moral and religious people. It is wholly inadequate to a government of any other. ["To the officers of the First Brigade of the Third Division of the Militia of Massachusetts," October 11, 1798, in John Adams, Charles Francis Adams, ed., The Works of John Adams (Boston: Little, Brown and Co., 1854), 9:228-229.]
Fortunately, the early Republic had a somewhat more sensible approach to dealing with domestic violence, from what I have read. I remember reading one frontier Indiana account where the husband had beat the wife, and attempts by his neighbors to talk sense into him were unsuccessful. After the next incident (because these sorts seldom stop unless given a reason to), all the neighboring men showed up, lifted the rails of his fence, put his legs and arms in, and lowered the rails. It was a frontier stock, so to speak. They left him there for several hours. The writer indicated that there were no further problems.
8.12.2008 4:28pm
ohwilleke:
Constitutional cases that distinguish between crimes afforded constitutional rights associated with felonies, such as a constitutional right to a jury, and those associated with minor crimes, have drawn the line at a maximum punishment of six months. Most violent domestic violence offenses are punishable by longer terms.

Also, the inclusion of misdemeanor domestic violence with other felonies has a strong legislative record backing it, indeed stronger than the one that applies to non-violent felons.
8.12.2008 4:33pm
PersonFromPorlock:
Isn't a plea bargain a sort of contract? Just-so-much punishment in return for saving the cost of a trial? If so, how can the state change the terms of the contract after the fact?
8.12.2008 5:23pm
Tony Tutins (mail):

Oddly enough, when I started researching this, I was unable to find any evidence of felons being disarmed after release. Even more startling, places like Pennsylvania in the 1790s were not simply releasing felons upon completion of sentence, but pardoning them.

Release from what? As far as I know there were no penitentiaries in the colonies. That was the appeal of the death penalty for felons -- no one had to guard you, no one had to feed you. You were tried and convicted, then hanged. If all you did was serve time in jail, you simply weren't a felon.

Can you recommend a good reference on criminal punishment in North America (from say, 1500 to 1800)?

Pardoning those who were punished makes perfect sense, because they would reenter society with all of their civil rights restored.
8.12.2008 5:34pm
CDR D (mail):
JMO, but if these (misdemeanors) are serious enough crimes to result in the forfeiture of constitutional rights, I think the legislatures ought to change them into felonies.

If the electorate disagrees with that, then the legislatures themselves can be changed accordingly.
8.12.2008 7:42pm
Greg Sun (mail):
An opinion not heard before.
Man gets convicted of MDV 1990
Man gets married to good woman in 1994
Woman still has her rights.
1996 comes along Woman loses rights.
Where is her due process?
Woman can no longer keep gun in her home for self defense.
Can the government take away rights from her simply because she is married.
Would this not overturn Lautenberg?
Would love to here all of your thoughts on this?
8.12.2008 10:03pm
Brett Bellmore:

The argument makes intuitive sense. But it's been universally rejected by the appellate courts that have squarely faced the issue, applying a fairly standard ex post facto Constitutional analysis.


But, has that "fairly standard ex post facto Constitutional analysis" ever been brought to bear against a law which completely deprived misdemeanants of any other basic liberty? I rather suspect not.

What we see in the case of the Lautenberg amendment is not so much fairly standard constitutional analysis, as fairly standard judicial hostility towards this particular liberty. Had the Lautenberg amendment deprived misdemeanants of any liberties members of the legal community generally approve of, does anyone believe the outcome would have been the same?
8.12.2008 11:26pm
zippypinhead:
Greg Sun asked:
Man gets convicted of MDV 1990
Man gets married to good woman in 1994
Woman still has her rights.
1996 comes along Woman loses rights.
Where is her due process?
Legally, the woman is still permitted to possess a firearm. Her husband, however, is not. As long as the gun is really the woman's and the disqualified spouse does not possess it, there's no problem.

That's actually a not-uncommon fact pattern in general felon-in-possession and other 922(g) cases: Law enforcement executes a search warrant for whatever reason at a residence, and find a gun. Disqualified person and his spouse/significant other share the searched house. Whether the disqualified person gets charged with a 922(g) violation depends on who possessed the gun. This is a purely factual question. The way it most commonly goes down post-seizure: The cops may assume the disqualified person has at least constructive or shared possession of the firearm and charge him. Then either the spouse makes a property claim for return of the seized gun, and/or the spouse asserts in defense it's not his, it's her gun. Then the usual factual considerations come into play, such as: (a) do the trace results show that the spouse purchased the gun? (b) if registration is required in the jurisdiction, was the gun registered by the spouse? (c) where was the gun physically located (e.g., in her dresser drawer versus with his stash of drugs)? (d) was the key to a trigger lock on her or on his keyring? (e) do his fingerprints show up on the gun, ammunition, or other accessories like a holster? (f) is there other evidence the disqualified felon possessed the gun, such as testimony he was seen carrying it? (g) other factors too numerous to list here.

If the facts clearly suggest it's really her gun, usually the 922(g) charges against the disqualified person are dropped or dismissed. Otherwise, it becomes a factual question for the jury.

In situations where a legal firearms owner and a disqualified person share a house, the legal owner should be very careful to ensure she objectively has exclusive possession. As a practical matter, generally the same precautions one would reasonably take to keep firearms out of the hands of children living in the house should suffice. Why it's especially important: it's not unheard of that if it turns out the legal owner purchased the gun but there's evidence the disqualified spouse was actually in possession of it with her blessing, the legal owner might be at risk of straw purchaser liability.
8.13.2008 10:25am
Clayton E. Cramer (mail) (www):

Release from what? As far as I know there were no penitentiaries in the colonies. That was the appeal of the death penalty for felons -- no one had to guard you, no one had to feed you. You were tried and convicted, then hanged. If all you did was serve time in jail, you simply weren't a felon.

Can you recommend a good reference on criminal punishment in North America (from say, 1500 to 1800)?
Pennsylvania was one of the early experimenters with prisons. Start here for some references.
8.13.2008 12:04pm