Holder and the Feds Sued Over Lifetime MCDV Prohibition: Lautenberg

I know an individual who was convicted of four counts of aggravated assault, a felony. After ser ving his time, he was abole to go to court and ask for restoration of his civil rights. which was granted. Not only is she allowed to buy firearms, he has applied for and received a CCW permit.
I know the man and there are aspects of his case that smell so bad it would make a vulture puke but that's neihter here nor there.
Whatever happened to the thought that once a man did his time, that he's paid his debt to society. Or is it better to punish him until the day he dies?
If my wife and I should happen to have a shouting match, I could damn well end up in jail if the neighbors complained. We do have our differences every once in a while as probably every one of us here. Seems to me we are all at risk should the unthinkable happen.
Paul B.
 
could it be that in our lifetimes (say 20 years) the 2A may be recognized as a civil right (as it is and should be recognized by the judicial system)
 
It's about time this was addressed.

The law was unconstitutional on its face because it was an ex post facto law. Why this hasn't been addressed before now is a curiosity.
 
Al Norris said:
Oh, did I forget to mention that § 925 is not being funded? Get your application for relief of firearms disability, fill it out and send it in (with the required fee) and after a couple or three weeks, it will be returned to you (along with your uncashed check). A nice letter will accompany the return telling you that the program is not being funded by the Congress, so they can't even reject the application. It is merely returned.

The upshot of this, is that the Courts have already ruled that since the application was not denied, you don't have a claim before the court.
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The case was UNITED STATES v. BEAN 537 U.S. 71 (2002).

I addressed this HERE literally years ago and got ZERO response from the members of this board. I still haven't found anyone willing to carry this thing forward. There is just no interest.

I originally addressed it HERE. Note the number of responses -- zero -- even though 92 members read the thread.
 
05/11/2012 9 Filed clerk order (Deputy Clerk: LBS):Appellants' unopposed motion for a extension of time to file the opening brief is granted. The opening brief is due July 9, 2012; the answering brief is due August 8, 2012; and the optional reply brief is due within 14 days after service of the answering brief. Appellants are reminded that a motion for an extension of time should be accompanied by a declaration stating that the court reporter is not in default with regard to any designated transcripts. See 9th Cir. R. 31-2.2(b)(7). [8175482] (LBS)
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We now have the schedule of briefing for Enos:

Opening Brief: 07-09-2012
Response Brief: 08-08-2012
Reply Brief: 08-22-2012
 
What goes around ...

Randy "Duke" Cunningham was a member of Congress when the defunding of the ATF's ability to restore rights occurred. Now it comes around to bite him.

SOURCE

Imprisoned ex-congressman Cunningham wants gun rights restored upon release

Published May 27, 2012

Associated Press

U-T San Diego reports Saturday Cunningham made the plea in a letter to a federal judge earlier this month.

...

The judge replied that he had no power to help Cunningham.
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BINGO!! ... and neither does anyone else.
 
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The government has argued all along that the RKBA are not civil rights, as defined in the code. The Judge merely agreed.
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The right does not need to be defined in the civil code, the right is defined in the ultimate law of the land... Someone needs to send him a copy of the Bill of Rights. Shameful - and the very thing people point at as being the illness in our system...

I know Im not a lawyer but this is just plain wrong...
 
Plaintiffs/Appellants filed their opening brief, yesterday morning (attached).

You may recall that the Fed.Gov has said that if 1) the right to vote, (2) the right to sit on a jury, and (3) the right to hold public office was not restored, then no rights were violated. This, regardless of Heller/McDonald that stated that the "right to keep and bear arms" was a fundamental right.

Since, in their view, no rights were lost, none can be restored.

Don Kilmer posits this, about the breadth of the governments position:

This tautology is not unlike the argument between the Queen and Alice over when jam can be served:
“You couldn't have it if you did want it,” the Queen said. “The rule is, jam tomorrow and jam yesterday – but never jam today.”

“It must come sometimes to 'jam today,'” Alice objected.

“No, it can't,” said the Queen. “It's jam every other day: today isn't any other day, you know.”

Through the Looking-Glass (5.16-18)
By Lewis Carroll​
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An entertaining read and a good brief.
 

Attachments

Let's look at some more quotes from the brief.

Pages 3&4:
The controversy before this Court is caused by the federal government’s untenable interpretation of the LAUTENBERG AMENDMENT’S restoration of rights provisions which goes something like this:
  • The SECOND AMENDMENT rights suspended by the LAUTENBERG AMENDMENT can only be restored if the state misdemeanor conviction suspends civil rights and then the jurisdiction restores those civil rights.
  • The only civil rights recognized by federal law that can be suspended and thus restored is (somewhat arbitrarily) limited to: (1) the right to vote, (2) the right to sit on a jury, and (3) the right to hold public office.
  • Therefore unless the domestic violence misdemeanant lost: (1) the right to vote, (2) the right to sit on a jury, and (3) the right to hold public office – as result of an MCDV conviction; no civil rights were lost, ergo – there are no rights to restore.
  • Therefore the federal government need not honor ANY restoration of rights procedure by any state where a conviction for a MCVD does not result in the loss of: (1) the right to vote, (2) the right to sit on a jury, and (3) the right to hold public office
  • This result begs the question. Since no state suspends these rights upon a misdemeanor conviction for domestic violence – except while the misdemeanant is actually incarcerated (and in most states {including California} not even then) the LAUTENBERG restoration of rights provision that relies upon state restoration of civil rights procedures is rendered a dead letter by the government’s interpretation.
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Don goes into the "Alice" dialog at this point.

The main arguments begin on page 18. However, pages 18-22 contain the preliminary arguments of this entire case (of which there are 4). It is much too much to quote here, but it should be required reading for those watching this case. These points really highlight what the law requires and the absurd manner in which the Fed.Gov is interpreting the law.

Page 25:
The plain language of 18 U.S.C. § 921(a)(33)(B)(ii) contemplates some state law procedure for restoration of any civil rights forfeited under state law by a MCDV conviction. Appellee-Defendants keep veering off into familiar pre-Heller/McDonald territory with their mantra that a conviction must result in the loss of the right to vote, to hold public office and to sit on a jury – and that only restoration of those rights resurrects the ‘right to keep and bear arms’ – while ignoring that the ‘right to keep and bear arms’ are also civil rights.
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Page 26:
Defendants would have this Court interpret the LAUTENBERG AMENDMENT as imposing a federal mandate requiring that states revoke the right to vote, hold public office or sit on a jury for any MCDV conviction in order to give any effect to the statute’s restoration provision. That interpretation would bring into serious doubt the constitutionality of the LAUTENBERG AMENDMENT.
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In short, the main arguments, are that in order to avoid assessing the constitutionality of the statutes, the court should have simply followed CA law as to the restoration of rights, not the convoluted reasoning of the Fed.Gov.

In part IV of the brief (the shortest part), should the court recognize that there is no method of restoring the 2A rights, Don writes (pages 32-34):
The Supreme Court in District of Columbia v. Heller, 554 U.S. 570 (2008) gave assurances that “[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Heller at 626-27.

As noted earlier, the LAUTENBERG AMENDMENT is a recent creature of statute having been attached to an appropriations bill during the 104th Congress in September of 1996. Therefore it is not a longstanding doctrine of American jurisprudence that a MCDV should disqualify someone from exercising a fundamental, enumerated right under our Constitution.

It is only the federal government’s insistence on an obtuse reading of 18 U.S.C. § 921(a)(33) et seq., that propels this Court toward a constitutional analysis of the LAUTENBERG AMENDMENT in light of District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. Chicago 561 US ___, 130 S Ct 3020 (2010).

Because the trial court dismissed this action pursuant to Defendant-Appellees’ FRCP 12 Motion, they never filed an answer, or submitted evidence that LAUTENBERG serves a compelling or even important state interest. There certainly was no analysis of any means/ends testing to make sure this policy would address that interest.

If this Court pursues a constitutional analysis of LAUTENBERG in the shadow of the SECOND AMENDMENT, it will be required to classify Plaintiff-Appellants as ‘law-abiding’ citizens. Therefore it should adopt (almost) strict scrutiny and require the government to bear the burden of producing evidence that forbidding rehabilitated misdemeanants with a 10-year (or more) history of law-abiding conduct from exercising SECOND AMENDMENT rights serves a compelling government interest, and that the means used (a complete lifetime ban on exercising the right is necessary to achieve that interest. See: U.S. v. Chester (4th Cir. 2010) 628 F.3d 673 and Ezell v. City of Chicago (7th Cir. 2011) 651 F.3d
684.
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Don then concludes his arguments with an epic tautology from "Alice's Adventures in Wonderland."
 
I like the Alice in Wonderland quotes (there's another at the end of the brief). I think the statutory language argument is the clearest path to victory here; i.e., Lautenberg itself contemplates regaining the 2A right upon restoration of civil rights and California automatically restores the right to own firearms after ten years.

That does raise a question. On page 10, paragraph 6, the brief states a state judge ruled that each of the plaintiffs "were entitled to have their pleas withdrawn and the case dismissed." If this is the case, I would think there is no conviction which is required by Lautenberg.

IMO, the argument that the original pleas were not voluntarily and intelligently made because Lautenberg had not yet been enacted is a loser. Before Padilla v. Kentucky (cited in the brief), the federal courts were unanimous that lack of knowledge of collateral consequences of a guilty plea, such as losing the right to vote, did not make a guilty plea invalid. The Supreme Court in Padilla emphasized that the "automatic" deportation Padilla faced was virtually unique and limited its opinion to that issue only. The last I looked, all the lower courts (save one) have read Padilla to apply only where one pleads guilty without knowing he or she would face deportation.

I also do not think Lautenberg is a true ex post facto law because a restriction on the 2A right would likely be considered a civil regulation and not a criminal punishment, much like those pleading guilty to sex offenses before sex offender registration statutes were passed. I believe the U.S. Supreme Court case upholding this is Alaska v. Smith (it's late so I'm going to forgo searching for it).
 
KyJim said:
That does raise a question. On page 10, paragraph 6, the brief states a state judge ruled that each of the plaintiffs "were entitled to have their pleas withdrawn and the case dismissed." If this is the case, I would think there is no conviction which is required by Lautenberg.
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You do realize that this is precisely what Mr. Enos did? Still, and yet, the BATFE refuses to allow him to buy or possess any firearm.
 
You do realize that this is precisely what Mr. Enos did? Still, and yet, the BATFE refuses to allow him to buy or possess any firearm.
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I thought that was what he did but I did not see a separate argument stressing there was no conviction under Lautenberg. Perhaps I missed it in my quick run through or there may be reasons unknown to me why it is not more forcefully stressed. I also do not mean sound over critical. It is a good brief.
 
Point 8, page 11 (pdf page 20):

8. Plaintiff-Appellant ENOS has an additional (third) reason he should be free from LAUTENBERG’S prohibition. He not only qualifies for restoration of his rights under the 10-year rule and the defective-waiver rule, but he is the only Plaintiff who applied for – and was granted – relief under California’s specific statutory remedy for judicial restoration of his firearms rights.
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IIRC, plaintiff Enos, was the only plaintiff that was granted a refiling under the first MTD, because of this.

Of course, I could be wrong on what I remember as having read.
 
Any blanket law like that is a bad law imo. I think there are more important issues to fight personally like a full repeal of 1968 beepity bleep. I would not imagine that the law will be upheld but that's a strictly non legal scholar personal opinion.
 
Time to expat?

I'm 45 and I have a 13 year old son who's showing some interest in hunting. I'm a "Lautenburg" because 20 years ago I splashed a drink in my girlfriends face. I haven't been in any trouble since. I need to know if you really believe this case will go anywhere? Otherwise I'm seriously considering taking my son and leaving the country so I can pass on my long family tradition of hunting.
 
Jason -

Your point about more important issues to fight makes sense, but the fights must be winnable. I don't see repeal of the 1968 GCA as winnable whether by Congress or by the courts.
 
Actually as I understand it in early US history if you werent hanged for your particular crime then your rights were restored the moment you left the cell.
I think the intent always was if your not under arrest, or locked up then you would always have the right to bear arms even if per se something like a court house or whatever might have been a no go zone for arms.

Unfortunately there seems to be little political will power to acknowledge the constitution let alone repeal or otherwise nullify law contrary to our founding documents. Future nations that write constitution type documents need to ensure that the documents they write are at least 1000 pages long per right spelling out the limits of government power...

Might I also suggest the abolition of lawyers and the elimination of legal language beyond a short dictionary of terms with very specific meaning for use in contracts... Sort of a common english version of law...
 
I just looked at the thread Al Norris linked to:

"Try a conviction of common law battery that carried only a small fine, until years later the State changed the sentence to an indeterminate sentencing of up to 3 years. See Schrader v. Holder for that one. "



I wish I had the link, but a loooooong time ago, I was reading an Alabama case that discussed the appropriate sentence for a particular misdemeanor.

In Alabama, misdemeanors usually have a class A, B, or C, which indicates the maximum penalty.

I don't remember what the outlawed behavior was, but for simplicity, let's just say it was throwing sharp items in a roadway The statute in question said: (hypothetically)

Sec. 13A-13-6:
Anyone who shall intentionally place or caused to be placed sharp items in the roadways shall be guilty of a misdemeanor.


The holding was rather simple. Even though it didn't follow the usual format, the word "misdemeanor" has a clear definition of "a crime that has a penalty of confinement of one year or less."


There was another case that was somewhat similar. The crime didn't follow the usual pattern for felonies, which also has class A, B, or C.

The crime said (I think) that anyone convicted shall be imprisoned for not more than two years. Using the same basic reasoning, the court said that two years is longer than the year-and-a-day definition of a felony, so the crime was therefore a felony.
 
BGutzman -

The idea of simplifying the law to the point that we don't need lawyers is appealing.

The trouble is, well, life. Law is the set of rules for the "game" of life. Life is a very complicated "game" so you can't have simple rules for it. Even without excessive regulation, law is still complex.

I don't see a way around it.
 
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