Tuesday, November 24, 2009

Man Convicted of Domestic Violence Wins In Federal Lautenberg Law Case..Gun Rights Still Intact

A Federal Appeals Court has ruled that the anti gun “Lautenberg Law” is overly inclusive. It’s a win for a Wisconsin hunter. The man was fortunate enough to have Appeal Judges in his case that applied “Originalist” interpretations of the Second Amendment in deciding his appeal.

Steven Skoien was convicted of domestic battery in a Wisconsin state court and was sentenced to two years in prison.

As a result of his conviction, he was subject to anti gun sanctions of the “Lautenberg Law.” Federal Law stated that he couldn’t own or possess firearms or ammunition because of his domestic violence conviction.

He appealed, arguing that applying the additional “Lautenberg Law” penalty to him violated his Second Amendment right to bear arms as explained in Heller.

The Federal Appeals Court ruled that his Second Amendment rights are still intact, regardless of his misdemeanor domestic-violence conviction. The Government Prosecutors just used their own assertive “conclusion” that people convicted of domestic assault were excluded from firearms rights just like felons are. They didn’t use any legal arguments, just their own conclusions. That” lawyer speak conclusion wasn’t sufficient enough for the Court.

The Judges ruled that the “Lautenberg Law” was over-inclusive for three reasons.

First, “The firearms prohibition exists indefinitely.”

Second,” ….it contains no exceptions nor any basis for potential restoration of gun rights;”

And third, “it does not require an individualized finding of risk that the domestic-violence

misdemeanant might use a gun in a future offense.”

The North Carolina State Supreme Court became the first high Court in the country to restore Firearms Rights to a man convicted of Domestic violence earlier this year.

Here’s what got the man into firearms problems. His Probation officer discovered that he had bought a deer hunting license, and suspected he had a gun to use for hunting. They searched his home and found a 12 gauge shotgun, which belonged to his father, and several other guns. He admitted that he had gone deer hunting earlier in the day. They also found a deer carcass in his garage.

His lawyer argued to the Appeals Court Judges that he had the gun for hunting, and not for the right of self defense. This was an argument that worked against Lautenberg firearms sanctions.

The government prosecutors also made several mistakes in the appeal. As basic as it may seem, they didn’t argue that a person convicted of domestic violence or the shotgun he possessed actually falls outside the scope of the Second Amendment as it was understood to be at the time of its adoption.

The Court found it odd to argue that a conventional hunting gun is completely unprotected by the Second Amendment. They also looked to Heller ‘s referring to the founding era’s importance of the right to bear arms “ for self defense and hunting.” The Court also said that a “long gun” used primarily for hunting is “obviously useful” for defensive purposes too. The Judges also noted that Heller said that generally the sorts of weapons protected were those that were in common civilian use for lawful purposes at the time the Amendment was ratified. Nothing in Heller remotely suggested that a standard shotgun is immune from second Amendment protection.

The second mistake made by government attorneys was that they did not assert that a person convicted of a domestic violence misdemeanor is categorically prohibited from exercising the Second Amendment right as a matter of founding era history.

The court also noted that scholars, even today, argue if, and to what extent, that persons convicted of felonies were excluded from owning or carrying guns during the “founding era.” Felons were not absolutely banned from gun rights until 1968, although there was a somewhat loose prohibition before that.

So, the Defendant in this case has made a base hit to third with his argument. It remains to be seen if he will round the corner to home plate with the U.S. Supreme Court based on any further action.


Patrick Sperry said...

Great rendition,and double linked back here via the "Source" link,as well as in the comments.

Keep up the good fight!

Anonymous said...

FWIW, This guy lost in the end..

A person to whom a statute properly applies can't obtain relief based on arguments that a differently situated person might present. See United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). Although the Salerno principle has been controversial, and the Justices have allowed “overbreadth” arguments when dealing with laws that restrict speech and reach substantially more conduct than the justifications advanced for the statute support, see Stevens, 130 S.Ct. at 1587, the Court has continued to cite Salerno favorably in other situations. See, e.g., Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449–50, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008); cf. Gonzales v. Carhart, 550 U.S. 124, 167–68, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007) (observing that “facial” challenges to statutes generally are restricted to litigation under the First Amendment). If convictions may be used to limit where sex offenders can live (and whether they must register), see Connecticut Department of Public Safety v. Doe, 538 U.S. 1, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003), a disqualification-on-conviction statute such as § 922(g)(9) also is generally proper. Whether a misdemeanant who has been law abiding for an extended period must be allowed to carry guns again, even if he cannot satisfy § 921(a)(33)(B)(ii), is a question not presented today. There will be time enough to consider that subject when it arises.

The Honorable Kagan refused to hear this case at the Supreme court a year later.