The Tenth Circuit divided 2-1 today on the constitutionality of banning guns for persons who have been convicted of a domestic violence misdemeanor. The issues arises because federal prosecutors petitioned for a Writ of Mandamus, to stop a Utah district judge from employing a jury instruction which the prosecutors did not want. The issue was whether a domestic violence misdemeanant can be criminally convicted for possessing a gun if the jury decides that he poses no threat of violence, after the defendant raises the issue as an affirmative defense.
In case no. 09-4145, Judges Hartz and Kelly voted to issue the Writ of Mandamus which the prosecutors had sought. Judge Murphy dissented, and would have set the issue for briefing.
The case involves two separate issues: first, whether the federal d.v. gun ban is constitutional in all circumstances, and second, whether the answer to the first question is so clear as to make mandamus appropriate. On the second question, at least, I think Judge Murphy has the better argument, although the majority opinion has some valid points.
As for Judges Hartz and Kelly, who authored the majority opinion to issue the writ, Judge Hartz's record on the Second Amendment suggests hostility to the right. Judge Kelly's record, in contrast, demonstrates that he takes the right seriously, and attempts to apply it conscientiously to the cases at bar. (As detailed in my Denver University Law Review article, The Second Amendment in the Tenth Circuit: Three Decades of (Mostly) Harmless Error, which was recently cited in a concurring opinion by Judge Tymkovich in United States v. McCane, upholding the felon-in-possession statute.)
Tenth Circuit split on gun ban for misdemeanants:
While I haven't specifically researched the issue, I know that in over five years of practicing law in the Tenth Circuit I've never even heard of a party attempting to get a writ of mandamus regarding a jury instruction, let alone obtaining one.
Matters which have a substantial effect on interstate commerce cannot be characterized as private, at least by the logic the Court actually used in establishing the concept of privacy in the first place. This logic assumes a certain degree of limitation to indefinite expansion of the commerce power's scope. If everything or virtually everything gets found to have a substantial effect on interstate commerce, then there is no or virtually no privacy: it becomes a category with no or virtually no content. And this seems to be the case (or virtually the case) now.
RIGHT!
Tiocfaidh ar la!
A funny statement, because Griswold's rational incoherence and ipse dixit reasoning have already rendered it a nullity, at least if you are expecting it to stand for something other than an naked exercise of judicial power. Were Congress to attack Griswold using the Commerce Clause, they'd be attempting to murder a man who has already committed suicide for all practical purposes, though Congress could still stab the lifeless body.
On the other hand, it would be satisfying in a 'pox on both their houses' way, to see a blatant and dishonest act of judicial overreach undone by a blatant and dishonest act of congressional overreach. Perhaps then the Executive Branch could refuse Congress' direction to interfere in private matters, in an act of Executive Branch overreach that would make for a perfect little equilateral triangle of federal government misbehavior... In the absence of government doing the right thing I'll settle for the government being unable to do anything.
I hope that the defendant here seeks en banc review of the panel's order. I wonder if David --- or the NRA or any other persons so eager to assail Justice Sotomayor for her precedent-respecting Second Amendment work as a circuit judge --- might vocally support the defendant in this case when the Tenth Circuit judges on this panel have gone far beyond precedent to reject a seemingly reasonable Second Amendment claim.
I think that is the most sensible approach. Under Heller, the statute may very well be unconstitutional. However, unlike other posters, I would have to examine the cases and research this issue, I don't have a "gut" reaction to it. I think you would have to look at whether persons convicted of misdemeanors historically have been deprived of other rights deemed fundamental. I don't know the law in this area to offer an off the cuff response.
This makes no sense. Raising an army is within the governments power. Establishing an official church to which recruits must convert is outside. So Congress can raise an army but they cannot raise an army that is required to convert to a religion.
In general, the fact that a power is enumerated does not render a nullity the other provisions of the Constitution. Congress cannot violate the Bill of Rights in exercise of its enumerated powers.
The rules on this vary from state to state. However, in my state, once the def is completely 'done' with the misdemeanor case, most if not all restrictions of the sort mentioned here are lifted. Which makes some sense, given the fact that the legislature that created the law and the penalty range decided it didn't deserve to be a felony with the attendant collateral consequences that go with it.
Defense attys and prosecutors sometimes work deals out that involve a defendant voluntarily relinquishing a right in exchange for a more lenient disposition.
As far as federal court- im still trying to figure out why the feds have the time and resources to prosecute misdemeanors AT ALL. Or most felonies. Or really any crime that by all rights should be handled and can be handled by the State's exercising their police powers. The expansion of the federal police power the last several decades is sickening and it keeps getting worse. But hey, at least we have the highest per capita incarceration rate in the world!
The interstate commerce argument is also a weak one under the current state of law which has been in place for two generations.
And that is in itself weak, as the threshold for a DV conviction is ridiculously low. The violent extremes of DV are pretty horrific, but if you can be convicted for essentially any physical contact, the lower limit is extreme, too.
These two judges and -- more importantly -- these prosecutors have shown they stand with Lautenberg and against the 2nd. The prosecutors are important because most prosecutors see themselves as a larval form of politician, and have political ambitions. (That also answers the question of why federal prosecutors choose to pursue malum prohibitum victimless crimes that are slam dunks, rather than malum per se violent crimes that take more time -- and might spoil the statistics one needs for that coming Me For Congress ad.
Who are these anti-gun, anti-freedom, soft-on-real-crime, anti-constitutional prosecutors in Utah? Name 'em and shame 'em, and let's make sure their political careers come to a disappointing end before they get going.
Likewise, the anti-gun judges can't be dumped from Appeals, but they can be prevented from rising higher.
If someone does something bad with a gun -- that's a good time to prosecute him. Not like Bullwinkle would demand, for "what he's going to do next week."
Thanks particularly to the lawyers who shared legal reasoning pro and con, and their own experiences before (and behind) state and federal courts. IANAL so your insights really help me understand what's going on.
Still think it's a bad law, and still think the fix is political; most of the courts will follow most of the laws that come before them, which sure beats a dictatorship. Thanks again to the insightful commenters!
I think Dave Kopel's law review article...
Denver U Law Review
...explains why he was somewhat blasé about this decision, and if Doug Berman rereads it he'll see why Kopel isn't as worked up. Kopel just isn't expecting much from this court, based on its record.
Plus ça changé, plus c'est la même chose.
Kopel hoped for a more serious treatment of the Amendment (2nd, not Lautenberg) in the 10th, but does point out in the article that there are paths to continuing to be a rubber stamp for prosecution. This decision shows that his analysis was bleakly prescient: the one thing these judges aren't going to do is reconsider these cases.
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