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.
Constitutional considerations aside, where is your historical perspective? Is a government out of control better for "the children" or the battered women? This is a subject that really gets my goat. Here in Wisconsin you don't have to do anything to have a record for domestic violence. Anonymous tiplines so the government squealers and informants can tell the authorities that you spanked your children.
A couple of years ago a friend of mine finally threw his 23 year old alcoholic son out of his house. The kid went to the police, filed a report, highly exaggerated, and guess who went to jail and got the record? The sober, productive citizen. Another incident I'm familiar with is a man who lived a couple of blocks away from me. He was Italian and talked with his hands. In the middle of carving a roast he was having a political discussion with his wife while waving his arms in the air, carving knife in hand. A short while later, the police were there and hauled him away for questioning.
I personally have investigated the county mental health and mandatory brainwash center. Included in their official literature defining domestic abuse are such heinous offenses as tickling ("I swear your honor, I have never tickled my children or my wife for that matter.") and controlling the family income (does this mean we're supposed to cash our paychecks, walk through the door and throw the money in the air while telling the wife and kids "Well, take what you want and I'll pay the bills with what's left over.") Mutual masturbation (whatever that is) and whole lot of other consentual acts that can be reported after the fact. Children get mad at their parents and scream abuse and even if they retract their accusations the district attorney says he is obligated to carry this through.
I for one was accused of kidnapping my child while going through a divorce because I picked him up from school and went to a burger joint without his mother's permission, even though she was at work and had no idea where he would be if he hadn't been with me. Fortunately, it was a small town and I knew the cop and he didn't want to do the paperwork. Angry spouses can and do use this type of law to punish the other party and most police departments are obliged and more than happy to cart one or the other off once a report has been filed. Domestic abuse has been on the rise in part because they have trivialized it and now include spanking your children, verbal arguments, throwing worthless adult kids out of the house, all on the flimsiest evidence and tips.
IMHO, these laws are ANTIFAMILY and part of the leftist, Marxist, feminist agenda.
Your theory about accelerating from heated discussion/fight to shooting is pure conjecture. Most people so enraged would use any weapon available, including their bare hands. Has your myopia and fear severely hindered your ability to see the big picture? Will you be happy if the government is successful at micromanaging people's lives through massive amounts of legislation?
IMO the antifamily agenda is far worse for the children.
Just shootin' em is a lot faster, cheaper, and offers a permanent solution.
It's gonna come down to that anyway.
If did not trust the person I was living with with a gun, if I thought the only thing keeping me alive is their lack of access to a gun, I would leave so fast I would not even pack my belongings. In other words if anyone is comforted by a law keeping a spouse from owning a gun that comfort is an illusion. Woman who then stay because of this comfort and are killed anyway are killed because of this law right?
Also, the number of people killed because someone is denied self-defense tool by the is probably greater than those (if any) whor are alive because of the law.
Most such gun deaths are impulse sorts of things. But where there's a habit of violence and especially with alcohol, the step to adding a gun in the moment of anger is an easy one to take for many, many men.
So, yes, it would mean X% less deaths.
For a hypothetical law targeting only the people you describe, perhaps, perhaps not. For the law as written, no.
What is far more frightening is that a temporary restraining order also strips you of your rights according to the 5th circuit court in the Emerson case.
EXCELLENT POINT.
However, it's often extremely difficult to get the co-dependent spouses who've been even almost killed--hospitalized even--'tis often hard to get them to leave the guy. The relationships are sick from the git-go. YOU probably wouldn't have entered into that kind of relationship with that kind of person in the first place.
Many people--women in most cases in this topic area--see themselves as desperate for shreds of affection, comfort, support however twisted and transitory.
Thank you, and I understand you are against the law on constitutional grounds event thought you think it has benefits. I just hope you see that the law also has costs especially as it is written and you would not be so quick to cede the cost-benefit argument to the ‘other side’.
Wish I'd know back then I could include their yeoman's work in handing the left their talking points into the next millenium on the subjects of coercive State Population Control and Environmentalism as stalking horses of human life and liberty in the land of the "liberated":
Recommendations of the Task Force on Earth Resources and Population (George H. Bush, Chairman) ... excerpts from the Congressional Record.
The NRA made clear in September of 1996 that they would endorse any GOP candidate who was even marginally more pro-gun than his opponent. When the Lautenberg Act came up for a vote, the GOA was all over talk.politics.guns, but the NRA was silent. When the Lautenberg Act saled through the Senate on a 97-2 vote, the NRA--true to its word--refused to hold anyone accountable and ignored the Lautenberg Act for several months while touting the victory of keeping a "pro-gun" Congress. Of course, by my tally, even if every Senate election brought in a pro-gun Senator there would still have been at least 63 anti-gun Senators held over, but that doesn't seem to have factored into the NRA's reporting.
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