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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. Zoogster

    Zoogster Member

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    Without a doubt it is ex post facto, because it is a new penalty applied for something prior.

    However legally it has been declared previously by the court to not be an ex post facto issue when reveiwed because firearm prohibition was not considered a new punishment.

    The way they got around the ex post facto legality was to essentially declare that taking away your firearm rights for life is not a penalty or punishment. So someone that owned firearms for years after a conviction who suddenly became a prohibited person after having committed no new crime was said to have not received any new penalty for that crime.

    If permanently removing your right to ever own a firearm is not a penalty, then it is not a new penalty applied after the fact, which is why legally it was not consider ex post facto.


    In light of Heller, (and even if it wasn't a right, but that is besides the point) and it being an individual right, a strong case could certainly be made that retroactively removing firearm rights for a crime that did not have such a penalty when committed is in fact illegal ex post facto increase in penalty after the fact. Legal minds that were intellectually honest and not jutifying the means to suit ends they may like would have to agree.



    That case however would only restore rights to those with convictions prior to the Lautenberg Amendment. It would not address the legality of convictions since then or in the future.
    That would need a different legal argument and would pose a bigger challenge.
    As a result I think many are reluctant to put a lot of money and effort into the ex post facto angle when it would not actually change the law itself.
     
    Last edited: Sep 21, 2012
  2. Landric

    Landric Member

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    It can be hard to gain ground on this issue because "reasonable people don't want violent domestic abusers to have guns". The big problem is that no one really understands how broad domestic violence laws are. In North Carolina, for instance, the following two situations would be "domestic violence" and therefore ban someone so convicted under Lautenberg.

    1) A 16 year old punches his 15 year old brother and for one reason or another gets arrested and later convicted. All 16+ year old people are automatically charged as adults in NC, and one brother assaulting another is "domestic violence".

    2) Two men are former college roommates. 25 years after they last lived together one assaults the other at a reunion. Since NC law says that "former household members" being involved makes an assault domestic in nature, and puts no time limit on how long ago such a person was a household member, someone convicted of such an assault would be guilty of "domestic violence".
     
  3. DMF

    DMF Member

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    Good grief does anyone here actually research the law before making such blatantly false claims? :rolleyes:

    Regardless of whether NC defines those two offenses as "domestic violence" neither one would make the offender prohibited from possessing firearms or ammunition under federal law (18USC922(g)(9) aka the Lautenberg Amendment).

    Here is the reality of federal prohibitions for misdemeanor crimes of domestic violence (MCDV):

    "It is illegal for a person to possess a firearm while subject to a court order restraining such person from harassing, stalking, or threatening an intimate partner or the child of an intimate partner or from engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child. The protection order must have been issued following a hearing as to which the defendant had actual notice and an opportunity to participate. The protection order must also include a specific finding that the defendant represents a credible threat to the physical safety of the victim, or must include an explicit prohibition against the use of force that would reasonably be expected to cause injury."
    http://www.ovw.usdoj.gov/docs/federal_violence.pdf

    In neither example you've given is the victim "an intimate partner or the child of an intimate partner," so those offenders are NOT prohibited from possessing firearms under federal law even if NC calls those "domestic violence" crimes.

    Please get your facts straight.
     
  4. tomrkba

    tomrkba Member

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    Heller declares the Second Amendment to be not an unlimited right. I don't see how they would allow Lautenberg to go away. It successfully denies people their rights for trivial crimes. This increases government power and they won't give it up.
     
  5. limpingbear

    limpingbear Member

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    DMF
    Forgive me if Im wrong but this post only applies to a restraining order, not an actual conviction of DV.
    And Landric was citeing NC state law, which if you are convicted, then it falls under Luatenberg and you are federaly barred from owning or possesing a firearm...
    Just my understanding.....YMMV
     
  6. DMF

    DMF Member

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    Well I'm a forgiving person, but you are wrong.

    I did a hasty cut and print from some resources I have saved and only put in the restraining order portion. Here is the rest of the info I should have included:

    http://www.atf.gov/firearms/faq/misdemeanor-domestic-violence.html#description
    "Q: What is a “misdemeanor crime of domestic violence?”

    A: “misdemeanor crime of domestic violence” means an offense that:

    1. is a misdemeanor under Federal or State law;
    2. has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon; and
    3. was committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.

    However, a person is not considered to have been convicted of a misdemeanor crime of domestic violence unless:

    1. the person was represented by counsel in the case, or knowingly and intelligently waived the right of counsel in the case; and
    2. in the case of a prosecution for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, either —
    a. the case was tried by a jury, or
    b. the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise.

    In addition, a conviction would not be disabling if it has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the jurisdiction in which the proceedings were held provides for the loss of civil rights upon conviction for such an offense) unless the pardon, expunction, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms, and the person is not otherwise prohibited by the law of the jurisdiction in which the proceedings were held from receiving or possessing firearms.

    [18 U.S.C. 921(a)(33), 27 CFR 478.11]"


    Again, people need to get their facts straight, rather than posting false information.
     
  7. skiddy

    skiddy Member

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    I also have been impacted be the lautenberg amendment a silly fight in 1994 with my then girlfriend now wife and mother of my 18 child resulted in a assault-4 which I plead to so I could return home. At that time I choose the deal as we did not have much money and I wasn't risking anything so valuable as my 2nd amendment right, who ever would have thought! The whole ex post facto aspect of this has caused me great embarrassment and even put me at risk as I had no Idea this law even existed or pertained to me as it came 2 years after this was behind me! I feel like like a hard core felony criminal even though I have tried to live a respectful life! it really feels like I'm being punished all over again for something I have paid for! Not saying what happened was right but no one was hurt and my wife had even told the police she only wanted me removed from the house for the night. Never in my wildest dreams would I have thought this would cost me so much With the rise in home invasions I am not allowed to protect my self or my family this is the scary part I have to rely on the police for that! Out here in the country it takes them 20 min to get here if they hurry! If I under stand the law of what makes this a qualifying conviction was that I waived my rights and plead guilty because I was able to make a Knowingly and Intelligent decision. But how is that possible if 2 years later this amendment further penalizes me, how can my decision be Knowingly and Intelligent if this aspect did not yet exist I would have fought it tooth and nail! what can I do to help this cause any suggestions.
     
  8. Milamber

    Milamber Member

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    @skiddy. Family violence has been made a crime with a life sentance. It has been legally proven that the law enforcement is not there to protect you. You and your family are thanks to this amendment now volunteer victims. The amendment needs repealing and a reasonable law put in its place.

    FV victims need protection from their attackers. But FV laws are so all encompassing a draconian law such as this needs to be changed. I belive just like drug possession it should have a time served plus good behavior. No misdemeanor should carry a life sentance.
     
  9. RatDrall

    RatDrall Member

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    Yes.

    Meet with your Senators and Congressman.

    Also, consult an attourney and see if you can have your conviction expunged or pardoned.

     
  10. skiddy

    skiddy Member

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    I am having a lawyer look in to it today In 1995 when I waived my right to a jury trial I did so knowingly and Intelligently as far as what the punishment for that crime was at that time. My 2nd amendment right was not up for grabs if it had been I would have fought that sucker tooth and nail! so how can it be a qualifying conviction, because from where I stand how can it be knowingly and Intelligently if the penalty did not exist for me to contemplate and weigh against my decision to plead guilty! any thought on this angle.
     
  11. livinglife

    livinglife Member

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    Hi everyone. I came upon this site as I do a lot of surfing the web to find others that have had the same injustice done to them.

    I am a victim of Lautenberg amendment and was not even aware of it for 20 years. I was in a skirmish with a girlfriend back in 1990, when I was only 23 years old. I was arrested for terroristic threats and disorderly conduct. My attorney at the time told me to take a plea to just disorderly conduct and the DA would drop the terroristic threats and I would do no jail time. At that time there was no Lautenberg amendment, so I heeded my attorney’s advice and took the plea.

    Since that time I married, had children, started a business and acquired my pilot’s license. I have never been in any kind of trouble since. I have contributed to society in nothing but a positive way.

    In early 2009 when the economy started to take a plunge I decided it might be a good idea to arm myself. It was not unusual for me to be in my office, alone, where thousands of dollars are kept. I also, once a week, took bank deposits and cash to the bank. We had two thefts at my business and after talking with the local police about those thefts was told that there had been several businesses that were broken into recently in the area. I decided it was time to arm myself and time to purchase a firearm.

    I did a lot of research on firearms and what kind would suit my needs. I talked it over with my family. This was not a knee jerk purchase. Finally I went to a gun store to make my purchase on January 10, 2009. I filled out the paperwork and waited while the store ran a background check on me. After half an hour they came and told me that the PA State Police needed more time to process the background check. I said ok, put a deposit down on the gun and waited. After two weeks I called the gun shop and asked if they heard anything. He told me I was denied but could not tell me why. I contacted the PICS and had to leave a message. Two days later a representative from PICS called me and explained that I lost my 2nd amendment right when I plead guilty to disorderly conduct.

    I was dumbfounded to find out I lost my gun rights back in 1997 when this amendment was passed, 7 years AFTER I was charged..........At first I thought it was a mistake and hired an attorney to look into it. My attorney could not find any record online through his programs. I contacted the county court; I actually went down there, only to find out that the court had no record of it as well. I also went to the District Justice office where the hearing was held and they also had no record. My attorney contacted the PA state police to find out where they were getting their information and found out they received it from the local police department. The only record of the incident was in an old filing cabinet at the police station. We found out that when the police do a PICS that they include the local police station of your residence. Unfortunate for me I never moved far from home and was still living in the area.

    I spent well over $3000 on attorneys fees to get to the bottom of this and try and get my gun rights back. After all that I was told that the only option I had was a pardon from the Governor. So I started looking into what that took to complete only to find that in Pennsylvania it takes an average of four years to even be considered for a pardon and about a 5% change you will be granted one. The paper work needs to be filled out completely and accurately or it will not be considered. Of course that requires having an attorney fill it out. Local attorneys gave me a price of $2000 to complete a pardon request. This would include attending with me to any hearings or meetings with the board. I am very disgusted. I write my representatives all the time. None seem to take any interest. I feel my only hope is to get this thing overturned.

    Jesse
     
  12. tyeo098

    tyeo098 Member

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    Jesse... Disorderly conduct = Domestic Violence?

    And your story is so sad :( I hope this gets overturned so you can enjoy our hobby, and protect yourself.

    Buy a good sturdy baseball bat for now.
     
  13. JERRY

    JERRY Member

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    domestic violence laws have created more victims than offenders.

    if youre arrested for DV but plea to disorderly conduct...et cetera it should not result in being ruined for life, but thats exactly what it does.
     
  14. livinglife

    livinglife Member

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    My wife grew up around guns. Her dad, my father in-law has quite a collection. He doesn't know about my problem and he is always asking me to go to the gun club with him to shoot. My wife wont bring her gun into the house in fear that I might be arrested. Shes kinda, by association, lost her gun rights too. I can not be in possession of a gun or ammunition. So if a gun is in a dresser draw in our bedroom does that constitute being in my possession? My attorney said that would be a good question, no doubt law enforcement would have no problem saying if I have access and its in my house that I have possession of a firearm.

    This is really government at its worst............
     
  15. tyeo098

    tyeo098 Member

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    A locked safe that you do not know the combo/have the key to is out of your possession.
    It has to be available for your immediate control. Like in a dresser. That will get you in trouble.

    You cannot immediately control it if it is locked in a safe you cannot access.
     
  16. bushmaster1313

    bushmaster1313 Member

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    I would consult with an attorney up on firearms law.
     
  17. DMF

    DMF Member

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    While I don't know how the statutes read in PA, and I'm too lazy to look it up, but I find it hard to believe a disorderly conduct charge would meet the federal elements for a prohibiting conviction under 18USC992(g).

    Further, if it was a prohibiting conviction under federal law there would need to be a judgement of conviction (aka mittimus) in the court records to prove the conviction actually occurred.

    So you are claiming there is no record of conviction in the court records, but if that were true then even if a disorderly conduct conviction in PA met the requirements for a fed prohibition, there is no way to prove the conviction occurred. A police report of the investigation, is not the same as court records proving the conviction.

    Now there might be something in PA law the prohibits you, but for the feds they would actually need a certified judgement of conviction from the court to prove the conviction occurred.

    An attorney should know this, and I suggest you find a competent attorney experienced in federal and state gun laws and consult with that attorney about your options.
     
  18. livinglife

    livinglife Member

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    Like I said in my post. I had an attorney. Attorney Karl Rominger, you might recognize the name. PA doesn't have or did not have a specific domestic violence law that they charge you with. I was charged with disorderly conduct M3. I could have received up to 1 year in prison for it. PA law considers any conviction that has a DV connected to it to be disqualifying. When I went to county court I had a docket number and a reference number. They could verify that it was a good docket number, they could not see any information as to what it was for. I have a 3 ring binder 3 inches thick of information battling this crap. As far as PA and PICS is concerned I no longer have gun rights and can not purchase a gun. I have $4000 for anyone that can reverse their decision and get my gun rights back.
     
  19. DMF

    DMF Member

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    Nope, I don't recognize the name, and frankly don't care. The reality is lots of lawyers are very good in certain types of cases, and not others. As I said, find a competent lawyer experienced in federal and state gun law cases.

    Further, quit blaming a federal law, but talking about PA and PICS, which are issues about the Commonwealth of Pennsylvania, NOT the "Lautenberg Amendment" and the federal government.

    It's simple really, to prove a violation of 18USC922(g)(9), the federal government would need to prove you have been convicted of a qualifying misdemeanor crime of domestic violence (see post #30 on this thread for more details). The way to prove that is to have a judgement of conviction (aka mittimus) in the records of the court where you were convicted. Absent a court record proving you were convicted of a qualifying MCDV there is no way the federal government can prove you are prohibited under 18USC922(g)(9).

    If your lawyer is actually competent and experienced in federal gun laws he should know that.
     
  20. Milamber

    Milamber Member

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    What I find interesting and must be frustrating for people convicted of DV is the total lack of of forgiveness in the US penal code. How can it be reasonable for a misdemeanor offense to carry a constitutional life penalty. Surely a sentence plus a good behavior period just like drug offenses would be more reasonable. I doubt this will ever be reversed as it is a back door gun control legislation. I see more of its like to come, unfortunately. I would be interested to see a courts view of a civil suit bought before them by a convicted DV who's family were murdered in a home invasion and could arguably been saved by an armed family member.
     
  21. bushmaster1313

    bushmaster1313 Member

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    That is a non-starter.
    Who would you sue?
     
  22. Milamber

    Milamber Member

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    Good question? The Government?
     
  23. livinglife

    livinglife Member

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    Not sure what your getting at but if you don't believe me here is the proof.
    As for competent attorneys, I had several look over this. Rominger was the only one that seemed to really want to help me. He did take my money and then tell me there is nothing that can be done. For what that is worth. Maybe you can look it over and tell me something 3 attorneys couldn't.

    CCI10292012_0000.gif
    Here is the disposition that shows that I pleaded down to Disorderly conduct. And if you note at the bottom at the "remarks" it says the witness "my girlfriend at the time" did not want to testify.
    CCI10292012_0003.gif

    Here is the accepted plea from the judge.
    CCI10292012_0004.gif

    Just to let you know these documents were at the police station. Neither the district court or the county court had these documents. These were in a filing cabinet at the local police station.
     
    Last edited: Oct 29, 2012
  24. JERRY

    JERRY Member

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    well Jesse, according to those documents you were not convicted of a misdemeanor crime of domestic violence, you were convicted of a misdemeanor crime of disorderly conduct. to say youre getting screwed would be putting it mildly.
     
  25. Midwest

    Midwest Member

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    Yep that is what I see too, "Plead guilty to disorderly conduct" . It doesn't say 'domestic violence'.
     
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