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Any post Heller case address Lautenberg Amendment?

Discussion in 'Legal' started by bushmaster1313, Mar 17, 2012.

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  1. bushmaster1313

    bushmaster1313 Member

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    Specifically, a case where the issue was removal of a constitutional right by a misdemeanor and not the ex post facto issue.
     
  2. emails.chris

    emails.chris Member

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    iirc there is, I saw a thread on calguns.net in the 2A subforum about it.
     
  3. tomrkba

    tomrkba Member

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    My bet is on SAF (Second Amendment Foundation). Check there first.
     
  4. emails.chris

    emails.chris Member

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    http://www.calguns.net/calgunforum/showthread.php?t=417935




    anthonyca anthonyca is offline
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    Default Feds Closer to Losing Over Lifetime Ban for Misdemeanor: Litigated By Donald Kilmer
    If you know anyone who has been impacted by lautenberg or feels that the lifetime misdemeanor ban is wrong, please email them a link to this thread. There are millions of us who feel this law is wrong. Let's go viral with this.

    Donating money http://www.madison-society.org/laws/litigation.htm would really help this case and a possible future case for the plaintif who was dismissed by the judge. According to Donald Kilmer, that plaintiff had the best 10th amendment claim.

    The 10th amendment claim will get more people interested than just gun people.

    The Madison Society is suing Eric Holder and the feds over the lifetime federal ban on "domestic violence" misdemeanants. People who know about this issue know just how easy it is to become prohibited due to one of these convictions.

    The case is Enos V Holder.
    http://madison-society.org/laws/litigation.htm




    Look at page 12. http://www.madison-society.org/laws/...-1-MTD-MPA.pdf The government is arguing that the second amendment is NOT a civil right. They say voting, speech, freedom of the press are, but not the second.

    Update; Don Kilmer filed this Supplemental Authority. http://ia600300.us.archive.org/35/it...15824.23.0.pdf

    Update; Enos survived the motion to dismiss by the federal government.http://ia600300.us.archive.org/attac...15824.24.0.pdf

    We are winning!
    Update 10-3-11

    http://www.calguns.net/calgunforum/a...2&d=1317699876

    The government is grasping for straws. They really hate that bill of rights and this natural rights thing.

    Update;

    Post # 404

    Update 1-11-12
    http://www.archive.org/download/gov....15824.49.0.pdf

    Update 2-29-12 Motion to dismiss granted with prejudice
    http://www.calguns.net/calgunforum/a...5&d=1330531223

    Update 2-29-12 Don Kilmer filed a notice of appeal (just a few hours after the government's motion to dismiss was granted)
    http://www.calguns.net/calgunforum/a...4&d=1330544513
     
  5. usmarine0352_2005

    usmarine0352_2005 Member

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    What's the chance of this winning?
     
  6. emails.chris

    emails.chris Member

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    its looking better and better.
    Due to corruption its becoming obvious that this law is unfairly enforced, recently an anti gun politician in San Francisco got elected Sheriff, and got a DV charged reduced when a tape of his bruised/battered wife went public ( he decided to accept a plea deal ) plus Sean Penn had numerous DV situations when married to Madonna, yet S.Penn and the new SF Sheriff both can carry guns & "regular" people cant ( in some blue states ) . Its becoming clearer and clearer that DV charges are only used against poor and minority people and when the "1%" get DV violations they do not suffer the consequences. Its a matter of time, I'd say 3yrs at the longest.
     
  7. DMF

    DMF Member

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    I think some folks here might actually want to research the Enos case. Enos et al, are not fighting 18USC922(g)(9) based on Heller, they are claiming their right to firearms has been restored under California law, and therefore that they are not actually prohibited by 18USC922(g)(9).

    I don't know why some people choose to characterize that case as something that it is not.
     
  8. Lrp3rd

    Lrp3rd Member

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    Embroiled in a mess

    I presently find myself caught between a 1992 no contestDV and Lautenberg because of a CHL application. Help I'm in over my head. Is this what you are looking for?
     
  9. RatDrall

    RatDrall Member

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    Because our laws are INCREDIBLY COMPLICATED and people get confused easily...
     
  10. Milamber

    Milamber Member

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    It is amazing to me that there is no forgiveness for time served in relation to DV. Various felonies have a forgiveness period. Even if the two parties are no longer in contact or dead the DV ban on firearms follows them. A cooling off or sentance period is what is needed in my opinion. I belive the intention of disarming a DV convicted person was to protect the victim. There other side of DV conviction is that if your military it will get you a Dishonarable Discharcharge which alone will get you a life time ban.
     
  11. nulook45

    nulook45 Member

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    i was told a dv charge was dropped due to no credible wittness. they all recanted there statements so i was recharged with disorderly conduct . but because it was amended to disorderly conduct from an dv charge i am still prohibited in the feds eyes but not the states. it prevents me from buying from a dealer. and i have no remedy for this . i cannot get the record exsponged because Ohio only seals the record but does not wipe it clean . and i cannot get a restoration of rights because i wasnt found guilty of a disqualifying offense . Kinda a catch 22 . anyone know a better attorney in central ohio
    please let me know
     
  12. rajb123

    rajb123 member

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    How about trigger locks? ...these were part of heller too but in westchester county ny our trigger lock requirement is still law.
     
  13. DMF

    DMF Member

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    WTH? There is nothing at all complicated about reading the actual facts in the case, and seeing that it is NOT a challenge of 18USC922(g)(9). I'm not a lawyer and I was able to find the facts, despite the propaganda posted that tried to claim the case is something it is not.
     
  14. DMF

    DMF Member

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    That is simply not true. There is nothing in the UCMJ that requires a Dishonorable Discharge simply because someone got a conviction for a misdemeanor crime of domestic violence (MCDV). In fact it would be unlikely that the military would be able to send someone out on a Dishonorable Discharge over that. However, it is true the person would need to be discharged, but not a Dishonorable Discharge, from the military because there is no exception for possessing firearms for government duty for those convicted of a MCDV.

    Again, people need to actually get their facts straight on this topic.
     
  15. Milamber

    Milamber Member

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    Gee. Thanks for correcting me. Open discusion without fear of reprimand is the only way to spread the actual facts. I understand you may be frustrated by our lack of actual knowledge but all I ways trying to do was put in my 2c.

    Correct me if I am wrong but didn't they make Lautenberg retrospective. Surely that makes it an unjust law in itself.
     
  16. DMF

    DMF Member

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    Gee. I'm so sorry your fragile ego was hurt, but your "2c" was blatant BS. If you don't want to get called out for posting false info then get your facts straight BEFORE posting. What you posted about is a matter of objective fact, not subjective opinion, and therefore pointing out that it's untrue is not hindering open discussion.
    Do you mean "retroactive," implying that it's ex post facto law? Then no it's not. The prohibition on possessing firearms and ammunition applies to actions that occur AFTER the law was passed. Meaning a person convicted of a MCDV can only be punished for possessing a firearm or ammunition after the law went into affect, not for possession of firearms and ammunition before the law went into affect.
     
  17. nulook45

    nulook45 Member

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    Lautenburger

    you guys are both right and wrong at the same time . lautenburger act is from a nj senator names lautenburger . the military looks at it as you have been lautenburgered and does discharge anyone prohibited from posesion of a firearm but it is not a dishonerable. The term is General Discharge for administrative reasons. And as such would not preclude you from the remedys of lautenburger and if corrected you could have your rights restored
    and reinlist if you so wished aftewards. as for the retroactive comment it is well known if you were found guilty of Domestic Violence before the act went into effect you were still prohibited even tho lautenburger did not exist at the time of conviction. There were literaly thousands of police officers that had been in fights with there spouses that paid the fine and pled guilty to DV that were terminated because of this law. Remedys for lautenburger are to the best of my knowledge
    TOTAL exspoungement of your record <in ohio they dont do this>
    And a court order of Restoration of rights <in ohio a drug dealer can get this>
    a Pardon from the Govenor of the state you live in.
    restoration of rights from the attorny general of the state you live in <fat chance there.
    ant of course dont get busted for DV in the first place .
    As you can tell i have done alot of research on this subject it is a bad law intended fo be a good law but has been corrupted since it started
     
  18. DMF

    DMF Member

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    Nothing I said was incorrect at all. I dealt with this in the military as an active duty and reserve officer, including as a Special Agent with a military criminal investigative organization (MCIO). I've also dealt with it a law enforcement officer after leaving the military.

    Further, don't tell us you've done a lot of research on the topic, when you can't even get the basic terms, names, and facts, correct.

    It's the Lautenberg (not Lautenburger) Amendment (not Act). It is so named for Senator Frank Lautenberg (D-NJ), and was an amendment to the Gun Control Act.
    http://www.monterey.army.mil/legal/military_law/lautenberg_amendment.pdf

    The reason it's a bar to military service is that there is no exception for possessing a firearm for government service. For the other prohibitions the law allows an exception for possession of firearm in government service. Which is why felons may continue to serve in the military, while people with convictions for a MCDV may not.

    Also, the term you are trying, and failing, to discuss is expunge, not exspounge. :rolleyes:

    The process (and possibility) of seeking relief from a firearms disability varies in different jurisdictions, and on the nature of the prohibition. Getting relief from a 18USC922(g)(1) disability, or (g)(9) disability is different than getting relief from a (g)(3) disability. The way to seek relief is to research the nature of your disability and the applicable laws in your state.
    http://www.atf.gov/firearms/faq/general.html#firearms-relief

    http://www.atf.gov/firearms/faq/general.html#firearms-relief-alternates

    As for claiming that the Lautenberg Amendment is ex post facto law, that is simply untrue. The Lautenberg Amendment does not criminalize behavior that occurred prior to the law taking affect, only behavior that occurred after the law went into affect.

    The crime, being possession of the firearm/ammunition is only a crime AFTER the date the law went into affect. It would only be "ex post facto" law if they had tried to criminalize the possession of the firearm prior to the law. So if a person had MCDV conviction in 1994 and had firearms up to the date the law went into affect on September 30, 1996, but legally disposed of those firearms the day before the law went into affect that person could not be prosecuted for violating 18USC922(g)(9). However, if they possessed the firearms after the law went into affect then they would be in violation of 18USC922(g)(9). You see it's only activity that occurs after the law, not before, that can be prosecuted.

    As YOU can see, I've actually done research on this topic, and I also have direct real world experience with it.
     
    Last edited: May 10, 2012
  19. YankeeFlyr

    YankeeFlyr Member

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    DD

    What Nulook45 said; a Dishonorable Discharge requires a court-martial conviction. This is the equivalent (for any offense that can warrant a court-martial) of a civilian felony.
     
  20. gc70

    gc70 Member

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    Domestic violence disabilities under 18 U.S.C. § 922(g)(9) are addressed in both United States v. Chester and United States v. Skoien.

    No court has invalidated 18 U.S.C. § 922(g)(9). The above case include interesting discussions of the scope of the right in the Second Amendment versus the scope and reach of 18 U.S.C. § 922(g)(9).
     
  21. DMF

    DMF Member

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    Good grief, you too choose not to learn the facts?

    There are different types of Courts Martial, and not all convictions are the equivalent of a civilian felony conviction. A Summary Court Martial conviction is NOT the equivalent of a felony conviction, and does not create a firearms disability. Summary Courts Martial cannot punish the convicted person with either a Bad Conduct Discharge or a Dishonorable Discharge. Special Courts Martial cannot punish the convicted person with a Dishonorable Discharge.

    While it's true that Dishonorable Discharges are only given after a conviction at a General Court Martial, it is not required that they be given the Dishonorable Discharge. The Dishonorable Discharge is only one of many possible punishments available after conviction at a General Court Martial.

    Further, anyone who has actual knowledge and experience with this topic knows that nulook45 has little clue of what he's talking about.
     
    Last edited: May 10, 2012
  22. Milamber

    Milamber Member

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    Hey DMF, I started my post with GEE as an indicator of humor. My ego is fine I like to learn and if I am wrong about something I am more than happy to be corrected. This is obviously a subject you take seriously and my misinformation was not intended to piss any one off.;)

    Either way you look at or spell it this is a typical knee jerk law that was ill conceived. I would be more than happy to see it repealed or modified.
     
  23. Frank Ettin

    Frank Ettin Moderator

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    First, continuing a discussion of on the UCMJ is off topic for this thread. It's time that side-bar ended.

    Second, gc70 in post 20 answered the OP's question. If anyone else know of other cases which have litigated, or are now litigating, the Lautenberg Amendment, now is the time to chime in.

    But let's stay on topic from here forward please.
     
  24. mortablunt

    mortablunt Member

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    What is the Lautenberg Amendment and how is it relevant. I've never heard of it before.
     
  25. anthonyca

    anthonyca Member

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    DMF,

    You Said,

    "As for claiming that the Lautenberg Amendment is ex post facto law, that is simply untrue. The Lautenberg Amendment does not criminalize behavior that occurred prior to the law taking affect, only behavior that occurred after the law went into affect.*The crime, being possession of the firearm/ammunition is only a crime AFTER the date the law went into affect. It would only be "ex post facto" law if they had tried to criminalize the possession of the firearm prior to the law. So if a person had MCDV conviction in 1994 and had firearms up to the date the law went into affect on September 30, 1996, but legally disposed of those firearms the day before the law went into affect that person could not be prosecuted for violating 18USC922(g)(9). However, if they possessed the firearms after the law went into affect then they would be in violation of 18USC922(g)(9). You see it's only activity that occurs after the law, not before, that can be prosecuted."

    DEFINITION FROM NOLO’S PLAIN-ENGLISH LAW DICTIONARY

    Latin for "after the fact." Refers to laws adopted after an act is committed, making it illegal retroactively. Or, it can refer to laws that increase the penalty for a crime after it is committed. Such laws are specifically prohibited by the U.S. Constitution, Article I, Section 9.

    Does anyone honestly believe that a lifetime loss of an enumerated right after the fact is not ex post facto? Many of these people served no jail time, paid a small fine and were told by the court it was over. Then years later an amendment is attached to a federal omnibus spending bill after midnight that very people knew was there and bam, tens of thousands of instant federal felons.

    In Enos v Holder, the federal government is also arguing that the rights to serve on a jury, vote and free speach are civil rights but the second amendment is not.

    http://www.law.cornell.edu/wex/ex_post_facto
     
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