Small victory in gun law.


PDA






eye5600
June 19, 2009, 11:09 AM
https://ecf.utd.uscourts.gov/cgi-bin/show_public_doc?2008cr0430-37

IANAL, however, I think the gist is something like this.

If you have a misdemeanor domestic violence conviction, then you lose your gun rights. This case was about a guy who was prosecuted for having a gun after a DV conviction. The court held that, under RKBA, the gov't could not deny him the right of self-defense without adequate reason, which, under DV law, would be that he might be violent again (and use the gun).

The court held that if the defendant could prove that he was not a threat to use a gun in a DV situation, that the jury could acquit him of the crime of having a gun when he shouldn't have.

It's not actually very helpful to any DV offender, I think. The burden of proof is on the defendant to prove he is not a threat, and that seems hard. On the other hand, there are a lot of people with DV misdemeanor records that didn't have any actual violence above a push or a tug.

Some of the law professors at the Volokh Conspiracy blog think this will be overturned, mostly because they think the Lautenberg Amendment should have been ruled unconstitutional, but wasn't.

If you enjoyed reading about "Small victory in gun law." here in TheHighRoad.org archive, you'll LOVE our community. Come join TheHighRoad.org today for the full version!
bigione
June 19, 2009, 01:03 PM
It seems with time and distance, many DV cases could be reconsidered. Ie, one spouse has moved far away, died, or they have resolved their differences. A good law could let someone be reconsidered for legal gun owenership and possesion.

deadin
June 19, 2009, 03:03 PM
I can see the reasoning behind the "no guns for DV" laws, but there should be a definite time limit imposed. If after a certain amount of time (I guess to be determined by the severity of the original violence), the restriction should be automatically lifted. Anybody guilty of DV and apt to re-offend will have re-offended whether they have a gun or not. Doing so would just extend the "no gun" time.
(Notice I said "guilty", not just "accused".)

ArfinGreebly
June 19, 2009, 03:15 PM
The concept that you must "prevent" someone from doing something, because you believe that it's arbitrarily probable is morally repugnant and constitutionally wrong. It assumes guilt-before-action.

The standard that should be applied is "if you trust a man to walk the streets and to mingle and work with others, and to engage in otherwise unrestricted commerce, then his right to self defense and the tools thereof must not be abridged."

Lautenberg really needs to be struck from the books.

Dr. Fresh
June 19, 2009, 04:28 PM
I agree 100% Arfin. I really hate how prior restraint infringements are tolerated with regard to the 2A, but challenged with regard to other amendments like the 1A.

george29
June 19, 2009, 04:45 PM
Never heard of a law or court order that saved a life from a determined person.

If you enjoyed reading about "Small victory in gun law." here in TheHighRoad.org archive, you'll LOVE our community. Come join TheHighRoad.org today for the full version!