I was asked to post some supporting documentation showing that ANY touching of clothing or the person is battery. This is mainly based on California jury instruction but it is similar in many places and SCOTUS talks about it in reference to 922.
While a second amendment argument was not raised, and the case concerned the 15 year ACCA not lautenberg, the issue of "unwanted touching" and misdemeanor lauterberg did come up in this case.
http://www.scotuswiki.com/index.php?...Johnson_v._U.S.
The US attorney, bought up lautenberg, to the chagrin of Scalia, and argued that if they invalidated the ACCA (felony) for the slightest touching, with no injury, misdemeanor lautenberg would be comprimized.
Scalia wrote the opinion and said they were not addressing lautenberg as that was a misdemeanor and this was a felony. Johnson's case was originally a misdemeanor but under Florida law was automatically elevated to a felony due to a prior misdemeanor conviction for battery.
Johnson won his case and his conviction was reversed in a 7-2 ruling. Alito and Thomas dissented and explicitly stated that this would harm the use of lautenberg, for the same no injury touching. So the US attorney had and augment somewhat backfire on the definition of "use of force", the majority did not address the misdemeanor question, and the dissenters said this ruling would effect lautenberg on "use of force" issues. Hmmmmmm. Second amendment was not raised. What will this mean to a lautenberg challenge?
From SCOTUS Blog;
"The majority and the dissent disputed the implications of the Court’s decision. Justice Alito warned that the decision will remove statutes involving both the use of violent force and offensive touching from the scope of the ACCA; moreover, he cautioned, the decision renders the removal of aliens convicted of domestic violence more difficult insofar as the relevant statute, 8 U.S.C. § 1227(a)(2)(E), defines “domestic violence” to include the use or attempted use of “physical force.” The majority downplayed Justice Alito’s concerns as “exaggerate[ing] the practical effect of our decision,” and it pointed to the government’s success in obtaining ACCA convictions under the modified categorical approach, which allows a court to determine the basis for conviction by consulting the trial record. Though absence or incompleteness of records may make a modified categorical approach less plausible in some cases, the majority explained, it does not follow that Congress meant to avoid that “common enough consequence” by “import[ing] a term of art [into the ACCA] that is a comical misfit with the defined term ‘violent felony.’” "
Here is an interesting part. California misdemeanor battery 242, and domestic battery, 243e, does state; "A battery is any willful and unlawful use of force or violence upon the person of another", but California jury instructions state that ANY touching weather it be on the person, clothing, causes pain or injury or not, was intended to cause pain or not, and no matter how slight, constitutes a battery. Back to the "force" definition. A few federal courts have ruled that states with misdemeanor battery statutes such as Florida, Hawaii, and I think Wyoming, don't meet lautenberg because they also include offensive touching. What about California jury instructions?
Examples;
Judicial Council Of California Criminal Jury Instruction 841- Simple Battery: Against Spouse, Cohabitant, or Fellow Parent (Penal Code 243(e)(1)). ("The slightest touching can be enough to commit a [domestic] battery if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind."
People v. Rocha, (1971) 3 Cal.3d 893, 900 ("‘It has long been established, both in tort and criminal law, that the least touching' may constitute battery. In other words, force against the person is enough, it need not be violent or severe, it need not cause bodily harm or even pain, and it need not leave any mark.'"
Judicial Council Of California Criminal Jury Instruction 841- Simple Battery: Against Spouse, Cohabitant, or Fellow Parent (Domestic battery, Penal Code pc 243(e)(1)). ("Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage."
Judicial Council Of California Criminal Jury Instruction 841- Simple Battery: Against Spouse, Cohabitant, or Fellow Parent (Domestic battery, Penal Code 243(e)(1)). ("[The touching can be done indirectly by causing an object [or someone else] to touch the other person.
I can't answer your question, sorry. This may be of interest. 7th circuit ruled that intermediate scrutiny is to be used in lautenberg cases. and reversed and remanded a conviction.
http://volokh.com/2010/02/22/seventh...koien-en-banc/
I also know of someone who challenged this case in a somewhat back door way. The judge did say that the man was correct and his conviction should be reversed, but it would be too important to many other second amendment cases and it was dissmissed with out prejudice. He is looking to go it again.
It's amazing to me that many hate wife beaters ( I do too) but they are legally defined as wife/ husband beaters and child abusers.