Sunday, November 29, 2009

Lautenberg Amendment Hits the Rocks

The Lautenberg Amendment was destined to have problems with the Constitution.

It finally happened, although not quite as expected.

A Rock County man sentenced to two years in federal prison for shooting a deer while he was on probation for domestic violence has had his case overturned by a federal appeals court...

The 7th Circuit Court of Appeals in Chicago ruled earlier this month that, in light of a major Supreme Court ruling about individual gun rights last year, prosecutors need to show that a lifetime ban on gun ownership for those convicted of domestic violence has a reasonable connection to reducing domestic gun violence. That 1996 law, the appeals court found, should not be grouped with other "presumptively legal" firearm restrictions mentioned in the 2008 Supreme Court case, known as District of Columbia vs. Heller.

"The 1996 Law" is Lautenberg.

A fellow named Skoien was convicted of misdemeanor domestic abuse. Later, he used a shotgun to go deer hunting. He got a deer AND a conviction, plus room + board at Club Fed.

A federal grand jury indicted Skoien for violation of a 1996 federal law that prohibits anyone convicted of domestic violence from ever possessing guns for any reason, often referred to as the Lautenberg Amendment. Skoien entered a conditional guilty plea, was sentenced to two years in prison and appealed.

From the beginning, Skoien argued that applying the federal law in his situation violated his 2nd Amendment right to possess a gun for hunting. U.S. District Judge Barbara Crabb denied a motion to dismiss, and a second motion made after the Heller ruling. That case found that the 2nd Amendment guarantees individual rights to have guns for self-defense, and that the total handgun ban in Washington, D.C., was therefore unconstitutional.

But the Heller court also said it wasn't trying to undo the many "presumptively lawful" gun regulations, such as those prohibiting felons and the mentally ill from having guns, or restricting guns from certain places.

While Crabb thought the ban on guns for people convicted of misdemeanor domestic violence obviously fit the same category, Sykes found that conclusion premature.

"We take all this to mean that gun laws - other than those like the categorically invalid one in Heller itself - must be independently justified," Sykes wrote after discussing aspects of the Heller ruling.

Sykes explains that an intermediate level of review should apply. In other words, the government would need to show more than just a rational basis for the law, but not have to meet the very high standard known as strict scrutiny.

Preventing domestic gun violence certainly qualified as an important government interest. But the government must still show a law that perpetually bans someone convicted of domestic violence from ever having a gun is a reasonable means to that end. Sykes said the government didn't make enough of a record on that question, and sent the case back.

"If the government successfully discharges its burden, the district court shall reinstate Skoien's conviction," Sykes wrote

Justice Sykes will soon be demonized by Handgun Control, Inc. as a 'supporter of domestic abuse.'


Anonymous said...

I am sure that Justice Sykes will have to indure just that. Yet the Law as Writen in an open inventation to end many carriers in both law inforcement and military for as little as One infraction. If we are to keep these laws inplace maybe we sould look at pulling a drivers licence for a first offence, say not wearing your seat belt.


Unknown said...

Made in good intentions this law if not overturned will be the death of America. Our founding Fathers along with our constitution wanted undeniable protection for americans against double jepordy, one of the conerstones of of the bill of rights. It will be the first brick to fall leading to a complete collapse of our rights and freedoms.

Anonymous said...

I was convicted of "domestic violence" for spanking my then fiance's child, with her approval, weeks before we were married. Had the spanking occurred after we were married I would have had a right to discipline my step child. For this I am banned from being able to protect myself and my family??

Unknown said...

I can understand, I don't understand what the hell is wrong with the NRA, and other gun org. for not getting together and having this law changed or removed. I lost all respect for the Rublican party when under Bush they controlled everything but did nothing about this law, they only lined their pockets with gold.