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Lautenberg Amendment Case Going to the Supreme Court

Discussion in 'Legal' started by Winchester 73, May 2, 2008.

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  1. Winchester 73

    Winchester 73 member

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    City lawyer going before highest court in the land
    by Cheryl Caswell
    Daily Mail staff

    http://www.dailymail.com/News/200804300223

    The case of a Marion County man will go to the U.S. Supreme Court later this year, and a Charleston attorney will become one of a limited number of West Virginia lawyers to argue in that venue.

    Troy Giatras will defend Randy Hayes of Mannington, a contractor convicted of a felony gun possession charge, and ask the highest court to clarify Second Amendment right to bear arms.

    No matter the outcome of Hayes' case, Giatras will receive the coveted quill presented to all lawyers who come before the U.S Supreme Court.

    "It's an honor," Giatras said. "For 99 percent of lawyers, it's a once in a lifetime opportunity.

    "It's the absolute pinnacle for a lawyer," Giatras said. "Because it's the highest court in the nation."

    He expects the U.S. Supreme Court to hear his case between October and December.

    Out of about 5,000 petitions the court receives each year to hear cases, the justices accept only about 75. Giatras says not that many West Virginia lawyers have argued a case before the country's highest court.

    Hayes' case goes back to 1994, when he pleaded guilty to a misdemeanor battery offense after a dispute with his wife. Ten years later, an argument over their son occurred over the phone between the now-divorced parents and she asked police to go to his home.

    When they searched Hayes home, an old Winchester rifle given to him by his father was found under a bed. Hayes didn't know it, but a 1996 amendment to federal gun laws made it illegal for him to possess the gun because of his prior misdemeanor offense.

    Giatras was retained two days before Hayes was expected to plead guilty to the gun charge in federal court.

    "We halted the entire process in March 2005," Giatras said. "Because he only pleaded guilty in 1994 to battery, not domestic battery. But the federal court interpreted it as domestic battery because it was against a family member."

    "In 1994 and in 1995, he was legally able to have a gun," Giatras said. "The 1996 law was applied to him retroactively, but he didn't even know it."

    The case proceeded through the Fourth U.S. Circuit Court of Appeals in Richmond in October 2006 and the court reversed the earlier decision. But the U.S. Justice Department appealed to the U.S. Supreme Court and the court agreed last month to hear the case.

    Giatras said the case is important because it will further define the right to own a gun and also addresses the issue of laws affecting citizens retroactively.

    The case of a Marion County man will go to the U.S. Supreme Court later this year, and a Charleston attorney will become one of a limited number of West Virginia lawyers to argue in that venue.

    Troy Giatras will defend Randy Hayes of Mannington, a contractor convicted of a felony gun possession charge, and ask the highest court to clarify Second Amendment right to bear arms.

    No matter the outcome of Hayes' case, Giatras will receive the coveted quill presented to all lawyers who come before the U.S Supreme Court.

    "It's an honor," Giatras said. "For 99 percent of lawyers, it's a once in a lifetime opportunity.

    "It's the absolute pinnacle for a lawyer," Giatras said. "Because it's the highest court in the nation."

    He expects the U.S. Supreme Court to hear his case between October and December.

    Out of about 5,000 petitions the court receives each year to hear cases, the justices accept only about 75. Giatras says not that many West Virginia lawyers have argued a case before the country's highest court.

    Hayes' case goes back to 1994, when he pleaded guilty to a misdemeanor battery offense after a dispute with his wife. Ten years later, an argument over their son occurred over the phone between the now-divorced parents and she asked police to go to his home.

    When they searched Hayes home, an old Winchester rifle given to him by his father was found under a bed. Hayes didn't know it, but a 1996 amendment to federal gun laws made it illegal for him to possess the gun because of his prior misdemeanor offense.

    Giatras was retained two days before Hayes was expected to plead guilty to the gun charge in federal court.

    "We halted the entire process in March 2005," Giatras said. "Because he only pleaded guilty in 1994 to battery, not domestic battery. But the federal court interpreted it as domestic battery because it was against a family member."

    "In 1994 and in 1995, he was legally able to have a gun," Giatras said. "The 1996 law was applied to him retroactively, but he didn't even know it."

    The case proceeded through the Fourth U.S. Circuit Court of Appeals in Richmond in October 2006 and the court reversed the earlier decision. But the U.S. Justice Department appealed to the U.S. Supreme Court and the court agreed last month to hear the case.

    Giatras said the case is important because it will further define the right to own a gun and also addresses the issue of laws affecting citizens retroactively.

    "You make a decision based on what the law is, as opposed to what it will be in the future," he said.

    "In the end, it could provide justice not just for Randy Hayes, but others who have been caught this way."

    To prepare for presenting his case, Giatras will argue before moot courts in West Virginia and at Georgetown University Law School.

    "We submit briefs, attorneys sit as fake judges, you do the argument, they question and grill you and then they give you a frank critique," he said.

    While arguing before the U.S. Supreme Court is an honor, it's also quite a challenge, Giatais said.

    "The other side is represented by the U.S. Solicitor General," he said. "All they do is argue professionally for the government."

    "I've already visited the Supreme Court to acclimate myself," Giatras said. "It's very similar to the West Virginia Supreme Court. It was the same architect, the same layout."

    Giatras said organizations and individuals can submit Amicus briefs summarizing their opinions in his case.

    "Any interested party can submit those," he said. "They'll begin to come in around June. I've already had pro-gun groups and family groups say they want to weigh in. You have to file a brief and have a lawyer."

    Another prominent gun law case, referred to as the Heller case, has attracted the attention of many gun control and gun rights activists. He expects the Hayes case to generate much of the same interest.

    The U.S. Supreme Court is expected to rule on the Heller case by the end of June.

    Giatras, 43, is a graduate of Duquesne University and West Virginia University School of Law. He was admitted to the state bar in 1990.

    Contact writer Cheryl Caswell at cher...@dailymail.com or 348-4832.
     
  2. Kharn

    Kharn Member

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    Its important to note that this case isnt directly about the 2A, it is asking if Lautenberg prohibits possession by someone convicted of misdemeanor 'battery' against a spouse, while the statute only refers to misdemeanor 'domestic battery'.

    Kharn
     
  3. MASTEROFMALICE

    MASTEROFMALICE member

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    The retroactive argument could be extremely important. It could set the stage for any future gun bans that are passed without a grandfather clause like what New Jersey did in the early 90's.
     
  4. peyton

    peyton Member

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    This admendment caused a huge headache for the military. Smack the wife one time, get a police report or complaint, then you are not allowed to carry weapon. Being a soldier and not allowed weapons is rough.
     
  5. frankie_the_yankee

    frankie_the_yankee Member

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    This case is most likely going to be decided based on the limits of the constitutional ban on ex post facto laws rather than the 2A.

    But every little bit helps.

    In my view, the retroactive aspects of the Lautenberg amendment are clearly unconstitutional. And I would expect the current Court to agree.
     
  6. CHAINGUNMASSACRE

    CHAINGUNMASSACRE Member

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    But the other side to it(I'm a soldier) is that someone who beats around their wife, the one who they supposedly love the most......what's gonna stop them in combat from giving a disliked Plat daddy or XO a controlled pair in the thick of things?? People who are capable of violence to their family and loved ones are also potentially capable of being violent toward their brothers in arms. And we don't need any more loose cannons in the Army, at least not with a belt full of frags and an M-4 with a full battle load. The "lautenbergs" in my unit were ones that I wouldn't want touching a weapon anyway. I was "over there" when that douchebag rolled a frag grenade into his comrade's tent in Kuwait in '03. Not pretty.
     
  7. hvengel

    hvengel Member

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    I was "over there" when that douchebag rolled a frag grenade into his comrade's tent in Kuwait in '03.
    Was he a "lautenberg"?
     
  8. CHAINGUNMASSACRE

    CHAINGUNMASSACRE Member

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    I was going to edit my post and say that I don't know if he was or not, probably not. Seeing as how he had acess to munitions. My point there was actually that "loose cannons" in a war zone are a bad thing.
     
  9. Bartholomew Roberts

    Bartholomew Roberts Moderator Emeritus

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