Friday - November 20, 2009

Thank You For Petting My Peeve

A federal appeals court has overturned the conviction of a Wisconsin man barred from owning firearms because of his criminal record, ruling the lifetime prohibition may violate Americans’ Second Amendment rights and calling into question the future of a 13-year old gun control law.

In a 3-0 decision on Wednesday, the Seventh Circuit Court of Appeals ordered a trial judge to take a second look at the evidence that a 1996 federal law prohibiting anyone convicted of a “misdemeanor crime of domestic violence” is constitutional in light of a U.S. Supreme Court ruling last year that emphasized “the individual right to possess and carry weapons.”

US Code
TITLE 18 PART I CHAPTER 44

§ 922. Unlawful acts

(g) It shall be unlawful for any person -
(9) who has been convicted in any court of a misdemeanor crime of domestic violence,
to ship or transport in interstate or foreign commerce,
or possess in or affecting commerce,
any firearm or ammunition;

or to receive
any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

The Lautenberg Amendment applies regardless of when such a conviction occurred. Or whether the crime committed was even called domestic violence at the time. If a young woman beat up her fiance in 1953 and was ticketed for it, then in 1996 she also lost her rights to own firearms. If at that point she had a career that required her to be armed, too bad. Game over.

You’ve heard me go off on this thing time and time again. It’s beyond unconstitutional. It’s an affront to what America is all about. It’s so off base that it could have only come from one state, and it did. 922 (g)(9) was brought into being by perennial New Jersey Senator Frank Lautenberg. To him the law’s blatant violation of both the 2nd and 10th Amendments don’t matter. And let’s ignore the gruesome ex post facto part that adds “excessive fines and punishments” to a petty crime. No, it’s a feel good, knee-jerk, do nothing bit of junk that “fights crime”. And up until this morning we were stuck with it.

As military law blogger Zach Spilman puts it,

The Government, in response to his challenge, essentially argued only that Heller’s presumption of lawfulness of certain categories of gun regulations, such as felon-in-possession prohibitions, extends to 922(g)(9).  Nice try. The court reversed and remanded for further proceedings to better develop the record, essentially forcing counsel to write that long brief after all (specifically: “the government has made little effort to discharge its burden of demonstrating the relationship between § 922(g)(9)’s means and its end”).
...
What’s interesting is that the court found that Skoien didn’t necessarily lose his Second Amendment rights when he was convicted of the misdemeanor domestic-violence offense. It then determined that intermediate scrutiny applies to determine the “reasonable fit between the perpetual disarmament of domestic-violence misdemeanants and the important goal of preventing gun violence against domestic intimates.” However, as discussed, it found the record to be insufficiently developed on the ultimate issue.

I don’t want to say it’s a full overturning. Not yet. The 7th Circuit sent it back to the lower court to reconsider the constitutionality of this law in light of last year’s Heller decision. But I like what they wrote about it

The disputed question here is the relationship between the government’s means and its end — whether there is a “reasonable fit” between the perpetual disarmament of domestic-violence misdemeanants and the important goal of preventing gun violence against domestic intimates. We cannot resolve this question on the present state of the record; the government has made little effort to discharge its burden of demonstrating the relationship between § 922(g)(9)’s means and its end.

The government has rested nearly its entire case on Heller’s reference to felon-dispossession laws, asserting, without analysis, that “Congress permissibly concluded that a narrow additional range of serious criminal offenses should likewise result in the forfeiture of the right to possess a firearm, even though the offenses are defined as misdemeanors under applicable law.

...

Senator Lautenberg’s floor statement and the DOJ study help establish the magnitude of the public safety problem, but they do not specifically address the more pertinent questions of recidivism among offenders who commit domestic-violence misdemeanors and whether there is any relationship between ready access to a gun and the risk that a gun will be used against a domestic intimate. We have reason to believe both propositions have been studied, but that’s based on our own research, not because the government has made its case.

Accordingly, we cannot conclude on this record that the government has carried its burden of establishing a reasonable fit between the important objective of reducing domestic gun violence and § 922(g)(9)’s permanent disarmament of all domestic-violence misdemeanants. In fairness, because Heller did not establish a standard of review, the government did not know what its burden
would be.

The CBS article then takes a look at the broader picture, and wonders if taking away people’s 2A rights because of a felony conviction is just and proper. Well, some felony convictions ...

Its [ the 7th Circuit Court of Appeals’ ] surprising conclusion: federal law’s lifetime prohibition on non-violent felons possessing firearms is relatively recent and probably not consistent with the views of the Second Amendment’s framers. In an age when Americans can be non-violent felons for possession of a short lobster or sharing MP3 files, is a lifetime ban constitutional?

For other constitutional rights such as the First Amendment, it’s relatively common to see acts of Congress struck down as going too far, as anyone who’s followed the series of cases about Internet pornography or abortion can attest.

That hasn’t been the situation with the Second Amendment even after the Heller decision, in part because some judges have not taken constitutional arguments seriously, and in part because the Supreme Court has not provided a road map to follow. The justices now have a chance to remedy that oversight in the case currently before the court, McDonald v. Chicago. If they don’t, expect this constitutional confusion to continue.

Perhaps it’s time that A) a whole boatload of puissant little felonies were tossed overboard and the federal government stopped micromanaging our lives [that’s why we have states and counties!], and B) the constitutionality of Lautenberg was honestly addressed. Hurray for the 7th Circuit for making the right decision to overturn, Boo for the 7th Circuit allowing the lower court to decide the constitutionality of it, for now ... but it’s what they had to do actually.

Naturally CBS cites all sorts of stare decisis in favor of Lautenberg and it’s Noble Intent”, but so what? I’m sure there was lots of that to support the Dred Scott decision way back when, and that was wrong too.

Lautenberg. Fuck it. Chuck it.

That goes for his “amendment” too.

Posted by Drew458     on 11/20/2009 at 09:12 PM   
Filed Under: • Guns and Gun Control •  
• Comments (1) • Trackbacks(0)  Permalink •  

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