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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. JERRY

    JERRY Member

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    on the gun buying federal form it specifically asks if youve ever been convicted of a misdemeanor offense of domestic violence, to that it would be no as well.
     
  2. livinglife

    livinglife Member

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    Pennsylvania had no "domestic violence" crime per-say until Dec. of 1990. That was after my conviction. So when the State police look at your conviction they look at what the circumstances were. Since my disorderly conduct was associated with a girl friend at the time this is considered domestic violence charge. This is spelled out in the PA Crimes Code Title 18.

     
  3. livinglife

    livinglife Member

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  4. comitatus1

    comitatus1 Member

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    Seems clear enough to me...

    Even though the defendant was not convicted of 'domestic violence' per se, the majority of the judges seemed satisfied that the circumstances of the case presented a clear case of domestic violence and they ruled accordingly. Even the dissenting judge did not disagree on this point. His dissent was only that the Sheriff should have had the authority to perform the investigation rather than the PSP.

    It is a shame that a moment of [somewhat] youthful recklessness has brought the defendant to this point, but assaulting a female is a serious matter.?

    Should there be a mechanism to regain one's right to own a firearm? Maybe so. But that is a matter for the legislature, not the judiciary.

    Chris
     
  5. DMF

    DMF Member

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    As I said before, your complaint isn't really with the feds, but rather the Commonwealth of PA.

    I don't know any Assistant United States Attorney (AUSA, aka federal prosecutor) who would prosecute a 922(g)(9) case if the court where the alleged conviction occurred could not provide a certified copy of the judgement of conviction (aka mittimus) to prove the alleged prohibiting conviction.

    However, the Commonwealth of PA seems content to deny you through the PICS system based on a record at a local police station.

    Again, without knowing the elements of the crime for disorderly conduct in PA, it's possible the elements would meet the requirements to be prohibiting under federal law depending on the relationship of the victim and suspect, although in the states where I've worked usually a disorderly conduct charge does not meet that standard.

    Find a better attorney, and see if you can get ATF to provide an answer as to whether or not you're prohibited by federal law based on the conviction, and/or the lack of a court record for the conviction.

    The problem is, it was a domestic violence case that resulted in a conviction, and you have said you were in fact convicted. Whether or not the federal government could prove that to sustain a 18USC922(g)(9) conviction, due to the lack of court records, if in fact it is a prohibiting conviction, you would have to lie on the 4473 to pass the PICS and/or NICS check.
     
  6. JERRY

    JERRY Member

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    in hind sight you should have plead no contest to the d c charge.
     
  7. livinglife

    livinglife Member

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    If the Lautenberg amendment was in affect when this happened, "1990" I would have asked for a trial, knowing that my girl friend didn't want to press charges. Also I don't think she would have wanted a jury or judge to know the reason behind the skirmish was the fact I came home to find her screwing a guy. I think a good attorney could turn it around to make her look like she deserved what happened.
     
  8. Frank Ettin

    Frank Ettin Moderator

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    In most jurisdictions, a no-contest plea is considered the same as a guilty plea for most purposes.
     
  9. JERRY

    JERRY Member

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    yes but a no contest plea allows for first offender status and setting aside the conviction after a period of time.
     
  10. Zoogster

    Zoogster Member

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    It actually can be even worse.

    Some states do not require someone even be given the option of a jury trial for misdemeanors.

    In United States v. Jardee they determined that your firearm rights mean so little that the permanent lifetime loss of them is not a big enough deal to turn an otherwise petty offense into a serious one requiring access to a jury trial.



    So a right that 'Shall not be infringed' and only right that specifically gives a right to an exact type of possession in the entire Bill of Rights, is not a big enough deal to even require a jury.




    Commitatus1 quoted:

    But that is not what the law addresses even if that is the layman assumption. I can walk up and punch your wife/girlfriend in the face, and it is a minor offense. However if I grab my own by the wrists to stop a violent tantrum where they are breaking or throwing things, that may be a serious domestic violence offense.
    So it has nothing to do with gender.
    It is not because they are women (half of domestic violence victims are men, they just are injured less and it is often unreported and less often prosecuted), or the seriousness of the assault, but rather the relationship to who is assaulted that is addressed.
     
    Last edited: Oct 30, 2012
  11. Frank Ettin

    Frank Ettin Moderator

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    Care to provide some citations? And is it your contention that is universally the case?
     
  12. JERRY

    JERRY Member

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    Im not sure what you mean by citations but in georgia a first offense domestic violence charge where the victim doesnt want to press to prosecute and there is no sunstancial injury, the offender can ask for and usually gets first offender status (if victim agrees, or refuses to testify),; resulting in a fine, anger management and substance abuse classes if booze or drugs were involved.....upon completion of the classes and payment of the fine before one year has passed, the charge is dropped.

    Still shows an arrest on the cch but the charge will be "nol pros". no this is not universal.

    If you need i will look up the anotated code of georgia for this and copy it here later when i have the time. start with this: O.C.G.A. § 42-8-60
     
    Last edited: Oct 30, 2012
  13. Frank Ettin

    Frank Ettin Moderator

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    If this is something in Georgia, what does it have to do with livinglife's situation? He is apparently a resident of Pennsylvania. And what does it have to do with disqualification from gun possession under federal law (18 USC 922(g)(9))?
     
  14. JERRY

    JERRY Member

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    as i understand it he is not a prohibited person by federal law.
     
  15. Frank Ettin

    Frank Ettin Moderator

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    That might perhaps be true -- but only in Georgia and only if some very specific and narrow conditions have been met:
    And it certainly wouldn't have anything to do with livinglife and his situation.

    So the statement in post 55:
    and the statement in post 58:
    weren't applicable or helpful to livinglife, nor were they necessary strictly accurate or broadly applicable in various State.

    And my point is that we should all try to be both accurate and relevant when discussing legal options.
     
  16. livinglife

    livinglife Member

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    Ok I will try this a different way.

    Has anyone heard about the SF sheriff that was convicted of domestic violence, but was still able to keep his job and gun rights? He grabbed and bruised his wife's arm and did not let her leave there apartment.

    Here is a link to the story.
    http://news.yahoo.com/sf-sheriff-no-conflicts-domestic-violence-case-200434394.html

    This is a federal law so state and local laws can not overturn them, or a state could not put into place a law that overrides the federal law.

    So now couldn't it be argued in any court that since the law is not being enforced equally that it is void. The Supreme Court has the words "Equal Justice For All" engraved on it. Does that not stand for something anymore? I would think that the Fourteenth Amendment protects us from having laws enforced differently. This is only a short step to Anarchy.

    This reminds me of a saying I read somewhere that went something like this:

    We do not have the rule of law. We have the rule of selective enforcement of the law. By passing more laws than can be enforced, we make everyone a criminal and then enforce, only the laws that promote our agenda and collect fees or taxes. If we pass enough laws we can exert total control over all citizens.
     
  17. rdawgy

    rdawgy Member

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    Who care about the stupid sheriff.

    So one person gets a special deal - so what. You are ignoring the big picture. Misdemeanor crimes should not result in a lifetime ban on guns.

    The second amendment is as necessary as the first amendment. Are we going to take someone's first amendments rights away for domestic violence crimes (such as issuing threats) or any other crime? Of course not.

    If you want to look at how the law is not enforced equally, look at the conviction of women of domestic violence and men and who lost their gun rights. I would have to guess that 80% of the men are convicted of domestic violence crime whereas women start at least 50% of the domestic violence incidents.

    Where was the NRA on this?

    I have worked in law for over 25 years and I have all the legal research tools available. I would be interested in working with anyone who would like to get this monstrosity overturned.
     
  18. RatDrall

    RatDrall Member

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    There is, it's written into the Federal law. It remains unfunded however, so there is no way out for people who find themselves Prohibited.
     
  19. getlost

    getlost Member

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    Well maybe $5000, $10000 or $20000 fee for reinstatement can get them the funding they need.
    After the mandatory 5 or 10 year period ban period.

    The funds could also go to programs to support domestic violence victims and their families.
     
  20. 64 jeep

    64 jeep Member

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    Lautenberg Amendments

    Hi everyone.
    Time to write your elected Congressman, and Senator. The squeaky wheel gets greased.
    Copy and paste this letter.

    I request you to pass legislation to Repeal the Lautenberg Amendment
    (section section 658 of Public Law 104-208 ) that Bill Clinton signed into
    law back in 1996. It serves no purpose other than to create very thin and
    questionable criteria to permanently ban citizens from their "Right to
    Keep and Bear Arms".
    Soldiers, police officers, and anyone who has been judged to have
    committed a misdemeanor crime of domestic violence has incurred a lifetime
    ban to own or possess firearms.
    As you know, a misdemeanor crime of domestic violence need not involved a
    physical crime, but a mere verbal exchange, with the punishment sometimes
    being only a $10 fine. In many metro areas, a second phone call to a
    house over a family altercation will result in the standard police
    procedure of automatically arresting the male occupant, regardless of who
    is at fault or whether any threats were made.
    Just as bad, this legislation associates gun owners with "wife beaters" as
    if the two are some how linked, which they are not. It is an intentional
    slander to law abiding citizens, a breach of Constitutional freedoms, and a
    hindrance to our military and law enforcement services. Many soldiers and
    police officers have lost their jobs over their legal ban on carrying
    weapons because of this dishonest law.
    And I won't even bother going into its unconstitutional ex-post-facto
    characteristics. Next all Misdemeanor convictions will result in a lifetime gun ban.
    If a Convicted Felon can have gun rights restore a person with a Misdemeanor conviction should have the same opportunity.

    Please work to repeal the Lautenberg Amendment.
     
  21. livinglife

    livinglife Member

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    I have written all of my state and federal representatives. I have written NRA, Oath Keepers, GOA and many others. Besides Oath Keepers and GOA no one else I have written considers this important or consider it a political hot potato no one once to touch for fear of loosing their next election. But I keep writing........and letting everyone I know about this total BS law.
     
  22. DMF

    DMF Member

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    There are many mechanisms for relief from a firearms disability. A grant of relief by ATF was just one way of many, and yes that has been stopped by Congress since 1992, but there are other avenues to seek relief.

    http://www.atf.gov/firearms/industry/0501-firearms-top-10-qas.pdf

    "8. I have been convicted of a felony. How do I reinstate my rights to possess a firearm?

    Persons who have been convicted of a “crime punishable by imprisonment for a term exceeding one year,” as defined by 18 U.S.C. § 921(a)(20), are prohibited from receiving or possessing firearms under Federal law, 18 U.S.C. § 922(g)(1). Felons whose convictions have been set-aside or expunged, or for which the person has been pardoned or has had civil rights restored are not considered convicted under section 922(g)(1), unless that person was expressly prohibited by the law of the jurisdiction in which the proceedings were held from possessing firearms. Persons convicted of a State offense should contact the State Attorney General’s Office in the State in which they reside and the State of the conviction for information concerning State and local firearms restrictions, and any alternatives that may be available, such as a gubernatorial pardon or civil rights restoration.
    If your conviction is for a Federal offense, you would regain the ability to lawfully receive, possess, or transport firearms if you receive a Presidential pardon. You can find additional information about such pardons by contacting the Office of the Pardon Attorney online at www.usdoj.gov/pardon/.
    The GCA includes a provision that gives ATF authority to grant relief from Federal firearms disabilities. 18 U.S.C. § 925(c). However, since 1992, ATF’s annual Congressional appropriation has prohibited ATF from expending any funds to investigate or act upon applications for relief from Federal firearms disabilities submitted by individuals. As long as this provision is included in ATF appropriations, ATF cannot act upon such applications for relief."
     
    Last edited: Feb 8, 2013
  23. HorseSoldier

    HorseSoldier Member

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    Attacking Lautenberg by downplaying the seriousness of domestic violence is not a strategem that is likely to get much traction.

    I think a more viable attack on Lautenberg would go after it from other angles:

    A) As was noted up thread, Lautenberg, like the death penalty, is not evenly applied. In those borderline kind of DV situations where the crime is pretty minor, poor persons are more likely to have DV criminal convictions than those who can afford decent lawyers. (i.e. Lautenberg is prejudiced against the poor and against minorities who are likely to receive harsher sentences than white Americans for the same offense)

    B) DV households can be a back and forth situation and occasionally the circumstances on the ground are understood at the time by law enforcement such that a person who is normally a victim may be found to be the aggressor in one isolated incident. That person also loses their firearms rights forever, even if they may be subsequently stalked and pursued by a violent partner. (i.e. Lautenberg has the potential to make make women victims, despite its core intent)

    C) -- And this is a kind of specialized one, but our military is large enough that it effects a lot of people -- Because Lautenberg is this cast iron kicker for military service, it sometimes actually encourages abused partners of service members not to report domestic violence, because if they report it the household's primary source of income is gone. From what I've seen, it also can encourage chains of command to pressure abused spouses to not report or even cover up DV crimes. (i.e. again, unintended consequences.)

    Arguing Lautenberg from a standpoint that can be bumper-stickered down to "c'mon, he just smacked her around a little" isn't going to play well -- and that's how it's going to be distilled by the opponents of its repeal.
     
  24. livinglife

    livinglife Member

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    This is false. If your a felon you can, under certain circumstances get your 2A restored but if you have a misdemeanor DV you can not. Only way to restore your rights is with a pardon. I know first hand. I have spent thousands of dollars trying.
     
  25. livinglife

    livinglife Member

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    No matter how you want to fight it, it really doesn't matter. The law is unconstitutional period. It was applied ex post facto in many cases, which is unconstitutional, it violates 2A directly, we are guaranteed the right to bear arms, and it is applied with prejudice, men are the target not woman.
    This law was sold on the premiss that it would protect woman, however facts show that domestic violence rarely have a firearm involved. Physical, pushing, hitting, punching, stabbings, are the main cause of injury and death in DV cases.
    If the public would pull their head out of the sand, step back and look at the authors of the law, you can see quite easily that the law was a form of gun control, nothing else. They simply use woman as a selling point.
     
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