One to Watch: US v. Hayes

A

Al Norris

Moderator Emeritus
U.S. v. Hayes
Docket #07-608
Oral Arguments are set for Monday Nov. 10, 2008.
All briefs may be found here.

Question Presented: Section 922(g)(9) of Title 18, United States Code, makes it a crime for any person convicted of a “misdemeanor crime of domestic violence” to possess a firearm. The question presented is whether, to qualify as a “misdemeanor crime of domestic violence” under 18 U.S.C. § 921(a)(33)(A) (2000 & Supp. V 2005), an offense must have as an element a domestic relationship between the offender and the victim.

Background: In 1994, Mr. Hayes pleaded guilty to a misdemeanor charge of battery under W. Va. Code Ann. § 61-2-9(c), relating to a November 1993 incident in which he struck his then-wife, Maryann Carnes, with his hand during an argument. He was given one year probation. They later divorced.

On the evening of July 24, 2004, Mr. Hayes and Ms.Oldaker got into an argument over Mr. Hayes’s decision that it was too late for his 11-year-old son to go outside. The boy phoned Ms. Carnes, his mother, around 10:30 p.m. Ms. Carnes demanded that Mr. Hayes allow the boy to come to her home but Mr. Hayes refused, since that was contrary to the parenting-time schedule. The call ended with Ms. Carnes threatening to send police to arrest Mr. Hayes.

Ms. Carnes called 911 and reported that Mr. Hayes was threatening Ms. Oldaker with a gun. The police arrived, and after a consent search found a firearm and arrested Mr Hayes. Later finding the (earlier) misdemeanor battery charge, the BATF&E filed charges of violation of the Lautenberg amendment (1996).

Note the timeline above.

Mr. Hayes lost at the District Court, won at the Circuit Court and the U.S. is appealing to SCOTUS.

What the Court must do is to either find that a 1994 conviction of misdemeanor battery included an act not specified in the original charge or find that the original charge is not included in the 18 U.S.C. § 922(g)(9) definition.

This is important, as it directly attacks the ex post facto nature of the Lautenberg amendment.
 
Section 922(g)(9) of Title 18, United States Code, makes it a crime for any person convicted of a “misdemeanor crime of domestic violence” to possess a firearm. The question here is, What does the statute mean by a “misdemeanor crime of domestic violence”? Does it mean that a person has been convicted of a crime of violence against someone with whom he has a domestic relationship, or does it mean that the person has been convicted under a statute the specifically punishes domestic violence.

In this case, Mr. Hayes was convicted of battery on his then-wife, but the statute was a general statute penalizing battery. It was not a domestic violence statute. Subsequently he was found to have been in possession of a firearm, and the federal government prosecuted him under 18 USC 922(g) since he had a prior misdemeanor of violence and the violence was directed at a spouse.

Mr. Hayes defended against the charge on the ground that the predicate offense (the crime that he had to have committed before he would be disqualified from possessing a firearm under section 922(g)) had to be a conviction under a state statute that penalized domestic violence as such and that the West Virginia battery statute did not have, as an element, a domestic relationship between the offender and the victim.

Section 922(g) can be read either way and is therefore ambiguous. The defective drafting may have been deliberate. In the legislative process, it is not unusual to paper over differences with ambiguous text that each side reads the way it likes. And then the courts (and until then, the public) are stuck with the task of figuring out what was meant.

This case is important primarily as a case of statutory interpretation and only secondarily as a gun control case. It will only affect those who have been convicted of a violent misdemeanor committed against a spouse, child, parent, co-habitant, and the like. According to Mr. Hayes's brief, only 125 persons were charged under the law in 2001 (with the actual number of convictions unknown). That's an inconsequential number of prosecutions nationwide, which raises a question about why the court took this case. More on that below.

Both sides parse the text of the statute, and naturally each comes up with a contrary interpretation. The government argues that the reading that Mr. Hayes gives the statute is grammatically impossible and therefore unreasonable. Interestingly, the "friend of the court" brief by the professors of linguistics and cognitive science supports the argument of Mr. Hayes that his interpretation is reasonable. Both readings are possible, and I’ll return to this point after discussing the rule of lenity.

One of the strongest arguments by the government is that only about one-third of the states had specific domestic violence statutes (and to date, only around one-half). Obviously, federal law is intended to have nation-wide scope. Therefore, congress could not have intended that a person convicted of beating his wife in one state under a domestic violence statute would be disqualified under federal law from possessing a firearm as a result but that another person convicted of beating his wife in another state would not be disqualified simply because the latter state did not have a specific domestic violence statute and prosecuted him under a general battery statute. Mr. Hayes's response is that this is what you get when you tie a federal statute to state law; it'll vary by state. On this point, the government has the better brief, but I don't think this point is sufficient to carry the day.

The government also argues that the legislative history supports its interpretation, and of course, Mr. Hayes argues the contrary. He contends the legislative history is meager and that the language of the bill was changed from one that clearly supported the government's charge to the current mish-mash (my term). On this point, I think it's a wash. Many of the current justices on the Supreme Court don't care much for legislative history when interpreting statutes.

Mr. Hayes argues that the rule of lenity should prevail. That rule provides that in construing an ambiguous criminal statute, the court should resolve the ambiguity in favor of the defendant. It is premised on the twin notions that fair warning should be given, in language the common world will understand, of what the law intends to do if a certain line is passed, and that legislatures, not courts, should define criminal activity. According to Mr. Hayes, this is particularly true when the crime is a regulatory violation rather than a crime that everyone recognizes as being wrong (murder, robbery, rape, etc.).

I think that the rule of lenity should carry the day here, particularly since the statute is capable of two readings. My prediction is that the Supreme Court will hold that a disqualification under section 922(g) requires the predicate conviction to be under a statute that specifically punishes domestic violence.

As noted above, it is surprising that the court took the case in the first place. Technically speaking, this is not an appeal. It is before the court on a writ of certiorari, which is a discretionary form of review. While the opinion in the lower court diverged from that of other circuits, and the Supreme Court often takes cases to resolve a split among the circuits, I don't see this split as being the impetus for review. I suspect that the court will issue a decision advancing the rule of lenity, holding that ambiguities in criminal statutes have to be resolved in favor of the defendant.

Aside from Mr. Hayes's reservation of a Heller claim in case the court reverses the court of appeals, I didn't see any constitutional issues being briefed. In my cursory review of the briefs, I didn't see anything related to the ex post facto issue.

Thanks to Al for bringing this to our attention.
 
Technically speaking, this is not an appeal. It is before the court on a writ of certiorari, which is a discretionary form of review.
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Actually, you misunderstand how the SCOTUS does this. From the techlaw journal:

Certiorari is a Latin word meaning "to be informed of, or to be made certain in regard to". It is also the name given to certain appellate proceedings for re-examination of actions of a trial court, or inferior appeals court. The U.S. Supreme Court still uses the term certiorari in the context of appeals.

Petition for Writ of Certiorari. (informally called "Cert Petition.") A document which a losing party files with the Supreme Court asking the Supreme Court to review the decision of a lower court. It includes a list of the parties, a statement of the facts of the case, the legal questions presented for review, and arguments as to why the Court should grant the writ.

Writ of Certiorari. A decision by the Supreme Court to hear an appeal from a lower court.

Cert. Denied. The abbreviation used in legal citations to indicate that the Supreme Court denied a Petition for Writ of Certiorari in the case being cited.

Someone with a legal claim files a lawsuit in a trial court, such as a U.S. District Court, which receives evidence, and decides the facts and law. Someone who is dissatisfied with a legal decision of the trial court can appeal. In the federal system, this appeal usually would be to the U.S. Court of Appeals, which is required to consider and rule on all properly presented appeals. The highest federal court in the U.S. is the Supreme Court. Someone who is dissatisfied with the ruling of the Court of Appeals can request the U.S. Supreme Court to review the decision of the Court of Appeals. This request is named a Petition for Writ of Certiorari. The Supreme Court can refuse to take the case. In fact, the Court receives thousands of "Cert Petitions" per year, and denies all but about one hundred. If the Court accepts the case, it grants a Writ of Certiorari.

"Review on writ of certiorari is not a matter of right, but a judicial discretion. A petition for writ of certiorari will be granted only for compelling reasons." Rule 10, Rules of the U.S. Supreme Court.

The U.S. Supreme Court's certiorari process is covered in Rules 10-16, Rules of the U.S. Supreme Court.
 
Question:

As Heller established the 2A as a Fundamental Individual Right what standing does the gov't have to restrict that right at all on the basis of only a misdemeanor?

I think this could easily be pushed as a case testing the level of restriction allowed under Heller but it does not look like such an angle is being pursued.
 
Actually, you misunderstand how the SCOTUS does this.

Pardon me? I don't think I misunderstand it at all. What is it that you think that I misunderstand?

Otherwise your post is correct and a good explanation of the process and terms.
 
As Heller established the 2A as a Fundamental Individual Right what standing does the gov't have to restrict that right at all on the basis of only a misdemeanor?
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As I mentioned in another thread, there is discussion in the Supreme Court's Heller opinion of the implications of the holding. The court signaled that an argument that the Second Amendment automatically invalidated any gun control legislation was not going to be entertained. In this regard, the court stated:

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing 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. [pages 54-55 of the slip opinion]
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In light of this, it seems clear that the court would not hesitate to say that a prohibiting possession of firearms by persons convicted of a violent crime (even one classified as a misdemeanor and not as a felony) is permissible under the Second Amendment.

Heller was raised by Mr. Hayes, and he asked, in the event the court were to decide the present matter against him, to remand the case to the lower court so he could pursue the claim that the federal government's restriction on his possessing a firearm was not permissible under the Second Amendment. So the Heller angle is not being pursued as such in this proceeding but will be pursued if Mr. Hayes loses.
 
You said that a writ of certiorari is not an appeal. It most certainly is. The way the SCOTUS works is that a party appeals a decision of the Circuit Court of Appeals to the SCOTUS. This appeal is called a Petition for Writ of Certiorari.

The court reviews the appeal, and the SCOTUS Justices take a vote on whether or not to hear the case. A minimum of four Justices must vote to hear the case. If the case gets the required 4 vote minimum, the court issues a Writ of Certiorari, this is known as "granting cert."

A Writ of Certiorari is an instruction from the SCOTUS, directed at the appeals court, instructing the lower court to deliver the record of the case to the SCOTUS for review. The court cannot hear a case that has not been appealed from a lower court. They cannot just decide to insert an opinion whenever they feel like it. In fact, there are only 6 circumstances that can cause cert to even be considered:

* By petition for a writ of certiorari, filed by a party to a case that has been decided by one of the United States courts of appeals or by the United States Court of Appeals for the Armed Forces.
* By petition for "certiorari before judgment," which permits the Court to expedite a case pending before a lower appellate court by accepting the case for review before the appellate court has decided it. However, Supreme Court Rule 11 provides that a case may be taken by the Court before judgment in a lower court "only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court."
* By appeal from certain decisions of United States district courts in certain cases involving redistricting of congressional or state legislative districts, or when specifically authorized in a particular statute.
* By petition for writ of certiorari with respect to a decision of one of the state courts (including courts of Puerto Rico and the District of Columbia), after all state appeals have been exhausted, where an issue of federal constitutional or statutory law is in question. The writ is usually issued to a state supreme court, but is occasionally issued to a state's intermediate appellate court for cases where the state supreme court denied certiorari or review and thereby refused to hear the appeal.
* By a certified question or proposition of law from one of the United States Courts of Appeals, meaning that the Court of Appeals requests the Supreme Court to instruct it on how to decide the case. This procedure was once common but is now rarely invoked; the last certificate accepted for review was in 1981.
* By petition for an "extraordinary writ" such as mandamus, prohibition, or habeas corpus. These writs are rarely granted by the Supreme Court though they are more frequently granted by lower courts.

The only thing that is discretionary about this process is that the court may deny cert because the requisite 4 Justices did not vote to grant it.
 
You said that a writ of certiorari is not an appeal. It most certainly is.

I now understand your point, but I must tell you that it is you who misunderstands.

The terms "petition for writ of certiorari" and "appeal" have very specific meanings in Supreme Court practice and are not the same. An appeal to the Supreme Court is a request for review as a matter of statutory right in that a federal statute gives the appellant the right to have the lower court decision reviewed. All other cases for review are heard by way of petition for writ of certiorari, the granting of which is discretionary with the court and not a matter of right.

As a practical matter (as opposed to "technically," which I said in my original post), the two are the same. The Supreme Court only issues opinions in about 200 to 250 cases per year. It receives thousands of appeals as well as thousands of petitions for writ of certiorari each year (probably tens of thousands in all). There is no way the court can do its job if it can't pick and choose, which it does.

And the selection mechanism is the Rule of Four, which you mentioned. If four justices don't vote to hear the case, it is affirmed automatically, whether by appeal or petition for writ of certiorari. Cases affirmed automatically by denial of a hearing are not Supreme Court precedent.

By the way, the Supreme Court can hear cases that have not been appealed as it has original jurisdiction in some cases, but that is not pertinent to issues here.
 
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Ricky B said:

So the Heller angle is not being pursued as such in this proceeding but will be pursued if Mr. Hayes loses.
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Thanks for the clarification. I understand Heller left room open for restrictions while at the same time establishing a fundamental right (just like Free Speech has restrictions). The Million Dollar question as we all know is "How Serious a Restriction?" Felons & Mentally Ill (hmm... to what degree) are one thing, misdemeanors are another. Then what of non-violent Felons vs. violent misdemeanors? All items which need clarification and all items I will be concerned about as the next SCOTUS nominations and Fed appointees are made...
 
The most basic question here is "Is this case going to get us to the question of the ex post facto aspect of Lautenberg?" Does this case give standing to challenge that or is this guy just in CYA mode?

Everyone who has a modicum of knowledge on ex post facto has to know that Lautenberg flies in the face of the Constitution on that aspect alone.

Lautenberg has been a POS from its inception as it is the first law in American history which denies a codified constitutional right for a misdemeanor crime and is, on its face, an (so far) unchallenged ex post facto law. It is one of the primary examples of a law created and passed to satisfy political correctness doctrine.

It is unfortunate that the law has to harm someone before they can have "standing" to challenge it. <rhetorical questions>What about the rest of us whose Constitution has been bastardized on the altar of political correctness? Shouldn't we have "standing" when the Supreme Law of the Land, under which we all live, is being destroyed?</rhetorical questions>
 
Everyone who has a modicum of knowledge on ex post facto has to know that Lautenberg flies in the face of the Constitution
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That's not so clear. Article I, section 9 provides in part:

No bill of attainder or ex post facto Law shall be passed.
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The prohibition on an ex post facto law means that conduct that was lawful when it occured can not be made unlawful after the fact. A bill of attainder is a legislative act declaring a person guilty of a crime without his having been convicted in a court. Coupling the two provisions in the same sentence of the constitution suggests that they have something in common, which IMO means congress can not penalize someone without first having passed a law and then having a court find the party violated the law after it was passed.

Let's look at the Hayes case. For the purpose of discussion, let's assume two things. First, the Lautenberg amendment applied to Mr. Hayes (which is the issue before the court now so the assumption is solely for the purpose of this discussion here). Second, everyone is presumed to know what is criminal and what is not (and as a result is prosecuted the same whether they know or not).

Step 1. Mr. Hayes hits his wife and is convicted of battery. No ex post facto there.

Step 2. Lautenberg amendment becomes law. Mr. Hayes is not subject to punishment. No ex post facto there.

Step 3. Years after the passage of the Lautenberg amendment, Mr. Hayes is found in possession of a firearm and is convicted of violating the Lautenberg amendment. At the time he possessed the firearm, he knew he had been disqualifed from possessing a firearm since he knew he had been convicted of a misdemeanor crime of domestic violence. Knowing that, he chose to possess a firearm. That's not ex post facto. That's his choice to violate a law. (What we think of the Lautenberg amendment is beside the issue here.)

It's true that the Lautenberg amendment had an ex post facto effect on Mr. Hayes, but that's not necessarily unconstitutional. The Lautenberg amendment did not punish Mr. Hayes for his prior action or conviction, only for his possession of a firearm subsequent to the passage of the Lautenberg amendment.
 
Lautenberg is ex post facto in the fact that it placed an umbrella over everyone living who had ever had any conviction for misdemeanor domestic violence regardless of when it occurred. In other words, it was retroactive to the beginning of the Republic.

To repunish persons for a crime under which the new punishment did not exist is not good law. If the law had existed at the time these people were convicted they may very well have fought the charge rather than simply pleading "Guilty" to make it "go away"; which we all now know -- it didn't.

What if all laws passed took all persons who had ever violated the law under a similar umbrella? The law against running a red light is changed to a new fine structure. You violated a red light when you were 20 and paid a $25 dollar fine. Now, twenty years later, the law calls for a $200 fine and you receive a bill from the city for $175. Good law?
 
You violated a red light when you were 20 and paid a $25 dollar fine. Now, twenty years later, the law calls for a $200 fine and you receive a bill from the city for $175. Good law?
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You just mixed apples with oranges. In the example you gave, that's ex post facto. If you want to compare it to the Lautenberg amendment, you have to say that the law increases the fine to $200 if you ever had a ticket for a red light, even one before the fine was increased. Then if you go through a red light after the fine is increased, you pay $200 (not if you don't ever do it again).

I guess the question here is whether disqualification from possessing a firearm by virtue of the Lautenberg amendment is a punishment. If yes, then it can be said to be ex post facto.
 
I believe my example was sound but perhaps could have been stated better.

You are correct that it was not exactly parallel to Lautenberg. In that parallel, you would be disallowed from ever owning a vehicle again; and neither would anyone who ran a red light after the law was enacted.

Denial of a Constitutional right is punishment. If you are dishonorably discharged from the military your right to vote is denied. That is supposed to be a Constitutional right; but the amendment that grants the right to vote has this little caveat called "Section 2". The Second Amendment does not have that caveat so how could the loss of the right not be a punishment?
 
We have moved from the apples and oranges department into chickens and eggs!

I like your example of being denied the right to drive by reason of a traffic offense for which one was convicted prior to enactment of the law. I think it is directly analagous.

I also agree that loss of a constitutional right by reason of conviction of a crime is a punishment.

The question then becomes whether posssession of a firearm is a constitutional right for someone who is a "criminal" (criminal being established by having once been convicted of a crime). That's the chicken and egg part.

For example, at English common law (and the colonists considered themselves Englishmen), conviction of a crime may have carried with it loss of civil rights. IMO, the RKBA is a civil right within the meaning of the term "civil right." I don't know enough about this aspect to expound, only enough to know I don't know enough.

The ex post facto issue is not before the court in this case. It may be subsumed in the Heller aspect that Mr. Hayes asked be revisisted in case he loses on the statutory interpretation issue.

If the ex post facto aspect of Lautenberg comes before the high court, I suspect it will duck the issue and not address it head-on. Instead, there is a good chance that it would interpret the Lautenberg amendment as applying only to convictions subsequent to its enactment, thereby sustaining the validity of the law and avoiding deciding the constitutional issue before it has to. That is a frequent practice of the court.
 
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If you can't control yourself enough to not hit your wife you can't control yourself enough to own a firearm, or drive a car, or any of the hundreds of other things that require a minute amount of self control.

I'm with Ricky B on the ex post facto.
 
Ricky B said:
If the ex post facto aspect of Lautenberg comes before the high court, I suspect it will duck the issue and not address it head-on. Instead, there is a good chance that it would interpret the Lautenberg amendment as applying only to convictions subsequent to its enactment, thereby sustaining the validity of the law and avoiding deciding the constitutional issue before it has to.
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ie: They will simply get rid of the unconstitutional portion of the law and allow the law to stand as now-constitutional law. Never said I wanted anything more than that.

If they were to examine the misdemeanor-loss-of-rights aspect of the law it wouldn't hurt my feelings.

Remember, the loss of 2A rights for ex-felons only came about with the enactment of GCA '68. Prior to that enactment, ex-felons were allowed to own firearms and that was so back to the formation of the country.

Look at nineteenth century America. When a felon was released from prison, they were issued all of their property which was with them at incarceration. If that property included a rig and pistol or rifle they got that also. There was nothing in the laws at that time which disallowed the person from being issued a firearm. A firearm was, at that time, considered a necessary implement. They weren't told "Here's your rig but we're keeping the pistol and you are disallowed from owning one from now until your death."
 
A transcript of the oral arguments can be found here. As is most things on the SCOTUS website, this is a PDF document.

Ricky B said:
Aside from Mr. Hayes reservation of a Heller claim in case the court reverses the court of appeals, I didn't see any constitutional issues being briefed. In my cursory review of the briefs, I didn't see anything related to the ex post facto issue.
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So allow me to set my ducks in a row, so to speak.

One of the (recent) defining cases that has dealt with ex post facto law is United States v. Mitchell, 209 F.3d 319 (4th Cir. 2000). There are some few others. From the Mitchell case:

"Mitchell next argues that as applied to him, section 922(g)(9)
violates the Ex Post Facto Clause because both his firearm purchase and misdemeanor domestic violence conviction occurred prior to section 922(g)(9)'s enactment. See U.S. Const. art. I, section 9, cl. 3.

Again we disagree. "To fall within the ex post facto prohibition, a law must be retrospective -- that is, it must apply to events occurring before its enactment -- and it must disadvantage the offender affected by it by altering the definition of criminal conduct or increasing the punishment for the crime." Lynce v. Mathis, 519 U.S. 433, 441 (1997) (citations and internal quotation marks omitted). It is immaterial that Mitchell's firearm purchase and domestic violence conviction occurred prior to section 922(g)(9)'s enactment because the conduct prohibited by section 922(g)(9) is the possession of a firearm. See, e.g., United States v. Boyd, 52 F. Supp. 2d 1233, 1236-37 (D. Kan. 1999) ("This court, as have all others deciding such a challenge, have concluded that ... the illegal act in section 922(g)(9) is the possession of the firearm, not the misdemeanor domestic violence conviction . .. ."); National Ass'n of Gov't Employees v. Barrett, 968 F. Supp. 1564, 1575-76 (N.D. Ga. 1997), aff'd sub nom. Hiley v. Barrett, 155 F.3d 1276 (11th Cir. 1998). As it is undisputed that Mitchell possessed the firearm after the enactment of section 922(g)(9), the law's application to Mitchell does not run afoul of the ex post facto prohibition.
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I'm sure that someone will correct me if I'm wrong, but that portion of US v. Mitchell, that I cited, was decided before Heller found that owning a firearm was in fact a fundamental individual right.

Since Heller, the deprivation of firearms for a conviction before the Lautenberg amendment (should the Court read the statute in the manner that the government endorses) now constitutes a change in the legal consequences of the act that was not in question before its enactment, Calder v. Bull, 3 U.S. (1 Dall.) 386, 390 (1798). Such a change is not about the mere possession of an object, but that the object is necessarily part and parcel of the (now) protected right, which before Heller it was not.

This changes the dynamics of prior case law.

Regardless, that is not primarily what this case is about (that issue (ex post facto) was specifically raised (albeit briefly) during orals, as was the constitutionality of stripping the right via a misdemeanor charge (again, briefly)). The 2A aspect of Hayes, in light of Heller, has been requested as reserved (by the appellant and suggested by the petitioner), in the event that the Court decides for the petitioner.

This case is about the correct reading of the statute in question. Is there a difference between a misdemeanor assault and battery case (wherein facts at trial are read as being part and parcel of the conviction of the predicate offense) verses an actual conviction of misdemeanor domestic violence A&B case (MCDV).

Should the Court favor the rule of lenity, then the latter conviction above would be the determining factor as to how 922(a)(33)(A) is read and enforced. This would invalidate the ATF's current regulation on how 922(g)(9) is implemented.

Since the Lautenberg amendment is a gun control law (acknowledged by the Court during orals), it remains to be seen just how the Court will deal with this specific issue in light of Heller. My personal opinion (worth every penny you just paid) is that the rule of lenity will be applied.

However it turns out, both ex post facto and the constitutionality of a misdemeanor conviction regulating (by forever restricting) the right to arms will be fair game.

So while not directly related to this case, there are indirect links to how this will be played out.
 
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