Question about the Lautenberg Amendment

seeker...I don't know what a 12mth one would be classified as...

Could a restraining order in itself be an element? Without any further charges? Or would it amount to conviction of a charge?
I ask because in divorces, judges passed out restraining orders like candy. Had to be no support justifications other than the spouse (normally female) requested it.
My son cohabited with a woman and when they separated she got a restraining order against him, stated she fealt he was dangerous. He had no contact with her at all and after 12 months it just went away. But there was never a reason to begin with.
Click to expand...

there would have to be a conviction, but a restraining andor protective order that wasn't temporary would handcuff your gun rights as a citizen.

sometimes a TRO as labeled by Al(Temporary restraining Order) or an order that is called something else in a different state which is just to get the ball rolling(emergency protective order as one of some other examples) is NOT enough to handcuff your gun rights. However, instances like this are obviously a hassle. One might receive an auto-generated revocation of there CCW because of such a snafu(depending on the state). One should be able to relatively easy restore their rights in such a scenario though once they can show nothing came of that. You make good points. Things like this happen all the time. I met a lawyer one time who looked at me with a straight face and told me she had her client ask for a restraining order one time because it made her case easier in a court...I don't know what case she meant whether custody, criminal, guns, or what the heck. I can say that I had a serious problem with that type of rhetoric from her. Because she gets paid she can ruin someone's 2A rights?! That's abuse in my opinion. those orders are supposed to be used to protect families, kids, women, and also men. they shouldn't be used as tools to further a different goal when they aren't truly needed.

PS- I REALLY WISH I KNEW WHAT ALL AND SCOTT WERE TALKING ABOUT WITH SCOTUS, 4TH CIRCUIT, ETC. I AM JUST A BEGINNER I GUESS
 
Check out Al's link in post #2 (the link I missed earlier). Basically, it describes a case that went to the Fourth Circuit Court of Appeals, then to the Supreme Court.

The Fourth Circuit COA interpreted the U.S. Code the same way I did - that unless the misdemeanor offense for which a person was convicted contained an element that expressly described a "domestic" relationship between the assailant and the victim, it didn't count as a "misdemeanor crime of domestic violence" for the purposes of the section of 18 U.S.C cited earlier.

The Supreme Court disagreed, and said that if there was a domestic relationship between the defendant and the victim, the misdemeanor conviction counts as a MCDV, even if none of the elements of the offense for which the defendant was convicted described a domestic relationship between the defendant and the victim.
 
OK, I've shown the 921 definition of a MCDV. Also the latest Supreme Court case that addresses this. Now let's look at section 922, the actual prohibition:

18 USC 922(d)(8) is subject to a court order that restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child, except that this paragraph shall only apply to a court order that—

(A) was issued after a hearing of which such person received actual notice, and at which such person had the opportunity to participate; and

(B)

(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or

(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or​

(9) has been convicted in any court of a misdemeanor crime of domestic violence.
Click to expand...

The restraining order (or order of protection, whether it be a temporary or permanent order) has some very specific circumstances. It can not be just any restraining order.

1. The order must be made against you by an intimate partner or their (or your) child, or the childs' intimate partner;
2. You must have had a court hearing at which you can have rebutted the allegations;
3. The order includes a finding that you represent a credible threat against an intimate partner or a child;
4. The the order prohibits you from using any coercive means against said intimate partner or child.

If all of those elements are present, you are a prohibited person for as long as the order is in effect. 18 USC 922(d)(9) only comes into effect if you are subsequently convicted of a misdemeanor charge of domestic violence. In which case, you are prohibited for life, regardless of any protective order.

If you are found to be in violation of the above, you will be charged with violating 18 USC 922(g)(9)—which is the actual prohibition as outlined, above.

Prohibited for life... Unless, you are granted relief of this disability under section 925(c)—application for relief of disability—or as defined under 921(a)(20)—restoration of civil rights. That is what the Enos case is all about.
 
Al, how would this transfer over for say like bearpray, pepperspray for that matter, stunguns, and knives. Is whatever the law is for a felon carried over to this unfortunate individual? forgive me if this seems like a stupid question, I am honestly curious & not too keen on these things. I just know that actual convicted felons might worry about this stuff everyday(I'm not one), and internet research is well....how do you say full of holes. I was hoping you can help? I know state laws can differ, but how dicey is this situation regarding the topic of this thread? Thank you in advance, Sir.
 
Bless you, kind sir! [a simple question with a simple answer] ;)

The Federal law, that we are discussing, deals with firearms and firearms only.

Everything that you have mentioned, above, would necessarily be dealt with under State law, if it is dealt with at all.
 
thx

I know, and I hate when some people try to link things as "firearms". those create fire and are combustible, and should always be in a separate category.
 
You must log in or register to reply here.
Back
Top