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FreeRepublic , LLC PO BOX 9771 FRESNO, CA 93794
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Posted on 01/21/2003 11:07:50 AM PST by SunStar
Congress slides dangerously far from the Constitution
by Alan Korwin
The new federal Gun Ban For Individuals Convicted Of A Misdemeanor Crime Of Domestic Violence removes civil rights for anyone who violates it, or anyone who violated its requirements before it was passed. Congress has exceeded its delegated authority here, even though the intention is a noble one.
The new law increases the list of prohibited possessors people who may not have, ship, transport, or get firearms or ammunition under federal law. Anyone ever convicted of a minor violation involving use or attempted use of physical force, or threatened use of a deadly weapon, among family members (spouse, parent, guardian, cohabiter, etc.), is now prohibited.
This marks the first time in history that a misdemeanor offense denies a constitutional right. The law is retroactive, affecting an unknown number of people, and no provision is made for the firearms such women and men might already possess. Firearms possession by a prohibited possessor is a five year federal felony.
A number of narrow conditions may exempt you from this law, such as whether you were represented by an attorney, the type of trial and plea, an expungement or set aside, or a pardon or restoration of civil rights. Misdemeanors can be handled by courts not-of-record, so some of these determinations may be impossible.
The current congressional practice of placing unrelated laws in larger acts, in order to get them passed without debate (or even unnoticed), has raised concerns among many observers. Politicians who operate by skulking around this way should be shamed from office. This law, sometimes referred to as the Lautenberg amendment, is an extreme example of such a practice, catching firearms-rights advocates and adversaries by surprise.
The law is drafted broadly, affecting sworn police officers nationwide, the armed forces, and agencies such as the FBI, CIA, Secret Service, Forest Service and others, most of whom are accustomed to being exempted from such laws. Many of these groups are currently battling to get themselves exempted from the law. They don t believe they should be prevented from defending themselves or others because of prior minor infractions. Police agencies nationwide have laid off officers who are in violation.
So many problems exist with respect to this legislation that is has raised concerns unlike any recent act of Congress. Indeed, some members reportedly were told before voting that this language had been deleted from the final version, and the vote was held before copies of the 2,000 page act were available for review. Experts close to the issues cite numerous constitutional conflicts.
Eight different guarantees in the Constitution are violated by the Misdemeanor Gun Ban, aka The Lautenberg Amendment:
Domestic violence does not have a single definition at the state level. Some states laws require the arrest of at least one party if the police respond to an apparent domestic violence report. This raises all the issues of judicial process and plea bargaining after an arrest.
Domestic-violence pleas have been a standard ploy to validate divorces for decades. A parent who pays a small fine rather than endure a long costly trial can now be charged with a federal felony. These charges now deny your right to keep and bear arms, and may stop you from voting, holding office and more.
An analogy to cars crystallizes this law s affects. It is as if a former speeding ticket were now grounds for felony arrest if you own a car or gasoline. When a law is scrutinized for constitutionality it is typically held up to one constitutional provision. The eight constitutional issues in this short piece of legislation may set a record. Our Congress has moved too far from its charter.
Alan Korwin is a full-time free-lance writer and author of seven books on gun law, including Gun Laws of America Every Federal Gun Law on the Books with Plain English Summaries. Permission to reprint this article is granted to non-profit organizations, provided credit is given to Alan Korwin, Bloomfield Press, Phoenix, AZ. All others, just call us.
The Lautenberg Domestic Confiscation provision was signed into law on September 30, 1996, as section 658 of the Treasury-Postal portion of the omnibus appropriations bill. It adds to the list of "prohibited persons" persons convicted of a "... misdemeanor involving domestic violence."
If you become a prohibited person, you can never again own or acquire a firearm of any type. The only exception is if you are subsequently pardoned or otherwise have your criminal record expunged.
A misdemeanor is a crime carrying a potential penalty of as little as one day in jail, irrespective of whether the person serves actual jail time. In other words, the law imposes a lifetime gun ban on offenses which, in many cases, are very minor in nature.
The Lautenberg language defines "misdemeanor crime of domestic violence" to include a misdemeanor that involves "the use or attempted use of physical force" against a family member. Hence, any actual or attempted violence against a spouse or son or daughter would certainly, if prosecuted successfully as a misdemeanor, subject you to a lifetime gun ban. In many jurisdictions, spanking your kids could result in a conviction which would prohibit you from ever again owning a firearm.
No. We have seen that a misdemeanor involving violence (however slight) or attempted violence against a spouse, son, or daughter would certainly be covered. But the definition of "misdemeanor crime of domestic violence" goes on to include "the threatened use of a deadly weapon." Thus, a threat against a family member would also subject the offender to a lifetime gun ban, even if the threat were joking or the person making the threat did not have the wherewithal to carry it out.
Yes. A misdemeanor committed fifty years ago would still subject an individual to a lifetime gun ban, even if he or she has lived a happily married life with the "victim" during the intervening period.
The law provides for no grace period. Technically, any newly created "prohibited person" is currently in danger of a felony conviction.
It means that, if you are a "prohibited person" and you are convicted of possessing a firearm, you will be guilty of a felony which could subject you to a $250,000 fine and a ten year prison sentence.
There is no exemption for law enforcement officials or members of the armed services. These persons, if they have been convicted of even minor misdemeanors against their spouses, will have to be disarmed and fired.
There is no exemption for battered women who received minor misdemeanor convictions after they used force to defend themselves against their battering spouses. There are many battered women who fall into this category. They will now be unable to use firearms to protect themselves against their abusive and threatening husbands, even if they feel that their lives are endangered.
Because the law now imposes lifetime gun bans on persons who, in some cases, have engaged in no actual violence or attempted violence, it will only be a matter of time before anti-gun activists try to impose lifetime guns bans in non-domestic situations of minor misdemeanors involving violence (such as fist fights). Ultimately, an effort to impose a lifetime gun ban on all persons convicted of misdemeanors will be made.
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FreeRepublic , LLC PO BOX 9771 FRESNO, CA 93794
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Law Enforcement Officer Early Retirement Program.
I have mentioned many times here that we should find pro-Second-Amendment lawyers and file dozens of "frivolous" law suits--invent legal theories just like the libs do. Sue 'em for "conspiracy to deny" constitutional rights.
The goal is not to win. The goal is to lose, and lose, and lose, and lose--but make them worship at the altar of Our Lady of Perpetual Litigation.
File class action lawsuits.
Bankrupt them.
And keep suing until you hit a "friendly" jury--and get a zillion-buck award from Brady et al.
This is the leftist technique; why can't we use it?
My first thought on election night regarding this waste of flesh elected again and with the republican majority was that they should humiliate this idiot by repealing this crime of a law.
And a federal gun ban on anyone convicted of this will prevent exactly what? Just as the British gun ban has been so effective for preventing crime?
Congress has surely exceeded its authority - by definition, an ex post facto law is one like this piece of filth which punishes a past act with a more severe penalty than existed when the act was committed.
However, the author is hopelessly naive. There was no noble intention involved in passing this unconstitutional law. Its real intent was not to fight some social evil - that was the excuse - but to find a yet another way to take guns out of the hands of a large number of people permanently, without any hope of regaining the ability to get the guns back. The gun-grabbers don't give a rat's @ss about crime prevention - in fact, they're happier when crime is higher, as it gives them the perfect tool ("crime prevention") with which to enact further violations of our rights.
Remember, folks:
GUN CONTROL ISN'T ABOUT GUNS, ITS ABOUT CONTROL
Of course, the gun-grabbers use the exact same logic - as long as kids are dying from gun accidents, we need more gun control. I know your intentions are good, but realize that such intentions are the paving material for a certain road...
The point is, this law would prohibit ANYONE with a misdemeanor DV assault charge from ever again legally owning a gun without a pardon. I think the entire federal law regarding banning gun ownership for ANYONE is illegal - because it is a penalty imposed by the feds for state crimes. There is no due process, just a sanction of rights separate from the sentence imposed by the state.
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