Comments on: Another gun case

By: Xrlq

Xrlq — Wed, 26 Mar 2008 17:04:49 +0000

Kevin, you may be right. Expecting Congress to do something sensible on its own is always dicey, and the chances of them doing so to help misdemeanant domestic abusers is slim to none. Then again, if the court does end up applying strict scrutiny (a big if – my money is on them NOT spelling out the standard this year since DC’s ban is sweeping enough to fail every imaginable test), then I suspect that the lifetime ban on gun ownership by felons, at least nonviolent ones, may be in jeopardy also. Felons are generally bad guys, so I’d grant that a lifetime ban on gun ownership by felons would meet the Clement standard of “substantially” related to an “important” government purpose. But narrowly tailored? I think not.

By: Yu-Ain Gonnano

Yu-Ain Gonnano — Wed, 26 Mar 2008 16:07:01 +0000

Xrlq, since when has gov’t ever done anything sensible?

By: Kevin Baker

Kevin Baker — Wed, 26 Mar 2008 12:40:39 +0000

But Xrlq! That would require the Court to determine that the Second Amendment protects a fundamental right, and requires “strict scrutiny” of laws infringing on that right!

We can’t have that! Then all sorts of riff-raff will be allowed to own nasty guns!

(BTW, Uncle – beating you to something relating to guns and gun laws is damned hard to do!)

By: Xrlq

Xrlq — Tue, 25 Mar 2008 20:45:01 +0000

That would be one possible response, yes. Another, more sensible one would be to repeal the Lautenberg Amendment and only make felonies carry the punishment of a loss of 2A rights. Beat up anyone a little bit, keep your guns. Beat up anyone badly enough to constitute a felony, lose ‘em.

By: Yu-Ain Gonnano

Yu-Ain Gonnano — Tue, 25 Mar 2008 18:19:43 +0000

So wouldn’t the legislature’s obvious response be to make all Battery/Assault crimes carry the punishment of a loss of 2A rights?

By: cliff

cliff — Tue, 25 Mar 2008 17:11:37 +0000

That is essentially it. There are nuances, but for the big picture, that is it.

It is worth noting that Hayes never challanged the Constitutionality of the law, but merely its interpretation. I think this one is going to come down to what we in the law biz call “statutory construction”, that is, how to interpret a statute that is not clear.

By: Yu-Ain Gonnano

Yu-Ain Gonnano — Tue, 25 Mar 2008 16:43:14 +0000

OK, I think I’m getting there. Let me make sure I understand:

Beat up neighbor: keep gun.
Beat up wife: 1) If charged with “Regular” Assault: Keep gun. 2) Charged with “Domestic” Assault: Lose Gun.

Hayes argues that he was charged with 1) and not 2) and therefore should be able to keep his guns.

Is this correct, or am I still missing something?

By: cliff

cliff — Tue, 25 Mar 2008 14:44:43 +0000

No, the argument is that if the statute criminalizes beating up anybody and you happen to beat up your wife, live-in girlfriend, or other “domestic relation” you don’t lose your gun rights. If, however, the statute makes the “domestic relation” an element of the offense, that is, the prosecutor not only must prove that you beat someone up but that the person beat up was also your wife, live-in girlfriend, etc, then you do lose your gun rights. At least, that is what Hayes is arguing. The counter example is that if you beat up your neighbor, you still get to keep your guns.

By: Yu-Ain Gonnano

Yu-Ain Gonnano — Tue, 25 Mar 2008 14:21:35 +0000

Last year, the 4th U.S. Circuit Court of Appeals in Richmond, Va., agreed with Hayes�s argument that the language of the West Virginia law on battery in the 1994 case needed to contain specific wording about a domestic relationship between the offender and the victim.

OK, I’m confused. What the hell does “contain specific wording about a domestic relationship” mean? Is the argument that if you beat up your wife, then you don’t lose your guns, but if you beat up your girlfriend, you do? What’s the deal?

By: cliff

cliff — Tue, 25 Mar 2008 14:02:21 +0000

A closer look reveals that the question to be answered in Hayes is whether or not the domestic relation has to be an element of the offense before one’s right to arms is ~~infringed~~ . . . er . . . abridged. I’m not saying that Heller won’t play a part, but the evidence available at this point would seem to say not. Otherwise, I would have expected the court to ask the parties to address that issue in their briefs.

-cliff