Posted on 05/29/2017 6:13:36 AM PDT by marktwain
WICHITA – A Kansas man convicted of misdemeanor domestic battery under a city ordinance can legally carry a gun, an appeals court found in a ruling that could have broader implications for firearm sales.The opinion is fairly short and well written. It essentially says that the statutory language is clear, and means what is written. It is unclear if the state will apply for an en banc ruling, appeal the case to the Supreme Court, or elect to accept the 10th Circuit decision. From uscourts.gov:
The 10th U.S. Circuit Court of Appeals’ ruling came in the case of Alexander Pauler, a Wichita man who was accused of violating a federal law that prohibits someone from owning a gun if they’ve been convicted of misdemeanor domestic violence “under federal, state or tribal law.”
We interpret “State” to have the same meaning in § 921(a)(33) that it has throughout the rest of §§ 921 and 922 and therefore conclude that “a misdemeanor under Federal, State, or Tribal law” does not include a violation of a municipal ordinance. In these sections, when Congress refers only to “State” law, it does not also include the laws of a state’s political subdivisions. Accordingly, because Defendant’s prior violation of a Wichita municipal ordinance was not a “misdemeanor crime of domestic violence” as defined by § 921(a)(33), the government has not demonstrated that he was prohibited from possessing a firearm under § 922(g)(9).It is unknown how many people have been convicted of domestic violence under municipal or local ordinances. In some areas, large percentages of domestic violence cases are tried in municipal or local courts. Plea bargains where part of the deal is to plead guilty to a municipal ordinance rather than a state statute, are known to occur. From pressofatlanticcity.com:
About 43 percent of new domestic violence cases are heard in municipal court.The case opens up a new strategy for defendants who are charged with domestic violence. Those who wish to avoid the expense of a trial have an option that may avoid loss of Second Amendment rights, by pleading to a municipal ordinance. Those who have been convicted under municipal or other local ordinances now have a reasonable case to appeal their status as prohibited possessors.
If this goes farther, does it negate Lautenberg?
Only for convictions in municipal and local courts.
But it offers another strategy for people caught up in the Domestic Violence witch hunt. A person (95% men) could plea to a municipal charge rather than a state or federal charge, knowing that a conviction there would not remove their 2A rights for a lifetime.
My understanding is that such plea deals are done routinely, especially for the multitude of DV charges that are for minor infractions (Shouting, breaking a dish, punching a door, grabbing a hand to keep from being slapped, etc, etc, etc.)
It also allows people who were convicted in such courts an avenue to contest their status as prohibited possessors.
The current ruling says that the Lautenberg act only specifies "federal, state, or tribal law", and that since municipal law is not state law, that local convictions to not violate the Lautenberg federal statute.
It would be a whole different level for the Supremes to rule that Lautenberg itself is unconstitutional, because RTKBA is a civil right under the Second Amendment, and so cannot be abridged by federal law. Maybe if Trump succeeds in appointing a couple more Originalists to the Court.
My personal opinion is that once a person has served his sentence, then he is restored to full freedom, and that a man who is too dangerous to be allowed a gun, is too dangerous to be on the streets in the first place.
Thanks
Domestic violence laws are a sham. Most states use the Deluth Model. This is something that was made up by an advocate for women (read a feminist). Buried in the state laws is something along the line that police MUST arrest the principal aggressor if they feel there is a chance fighting will continue after the police were to leave. And the principal aggressor, is the one likely to win the fight. Even if the woman was not hit, the man gets automatically arrested since he is the one likely to win a fight, if it were to break out. Even if the woman was the more violent person, the man will get arrested. No presumption of innocence in domestic violence laws for men.
Good news.
Buried in the state laws is something along the line that police MUST arrest the principal aggressor,
I have seen that in a municipal law, but I have not seen it in a state law. I have also seen prosecutor offices use that enforcement model when there is nothing in the law about it.
The whole “domestic violence” concept has based on the idea of getting the government inside the family so as to remove men as necessary for a working family.
Yes, there was and is domestic abuse, but there has been the myth that it is perpetrated only by men against women.
It has gotten way out of hand. It is used as a political lever far too often. The cards are stacked against men in the courts.
Why even have domestic abuse laws? If a man beats up his wife that is assault. We already have laws for that. Food for thought.
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