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March 24, 2008
SCOTUS takes new gun case ... is this a Heller tea leaf?
I am sure regular readers are tired of me linking the Heller Second Amendment case to various sentencing issues, but a new Supreme Court cert. grant today is only going to fuel my gun fires. Here are the basics from this post at SCOTUSblog:
In the second grant Monday, the Court agreed to hear a Justice Department appeal in U.S. v. Hayes (07-608), urging it to clarify the federal law that makes it a crime to have a gun after being convicted of a misdemeanor crime of domestic violence. The specific issue is whether the federal ban at issue requires that the convicted individual and the victim in the underlying crime have a domestic relationship — that is, as a spouse, parent or guardian.
Though it appears that Hayes is only about a technical statutory issue, the case could end up being about a lot more if Heller declares that there is an enforceable individual right to keep a gun. Here are the key facts in Hayes from the Fourth Circuit opinion on which cert was sought by the Justice Department:
In 1994, [Randy Edward] Hayes pleaded guilty to a misdemeanor battery offense under West Virginia law, in the magistrate court of Marion County, West Virginia (the "1994 State Offense"). The victim of the 1994 State Offense was Hayes's then wife, Mary Ann (now Mary Carnes), with whom he lived and had a child. As a result of the 1994 State Offense, Hayes was sentenced to a year of probation.
Ten years later, on July 25, 2004, the authorities in Marion County were summoned to Hayes's home in response to a domestic violence 911 call. When police officers arrived at Hayes's home, he consented to a search thereof, and a Winchester rifle was discovered. Hayes was arrested and, on January 4, 2005, indicted in federal court on three charges of possessing firearms after having been convicted of an MCDV, in violation of 18 U.S.C. §§ 922(g)(9) and 924(a)(2).
This fascinating little case should help everyone understand why Solicitor General Paul Clement is justifiably concerned about a broad pro-gun constitutional ruling in Heller. If the Second Amendment truly protects an individual right to domestic self protection, prosecuting Randy Edward Hayes for having a Winchester in his home seems very constitutionally troublesome. And, at the very least, if Heller says anything nice about the constitution and gun possession, the doctrine of constitutional doubt ought to impact how the statutory issue in Hayes plays out.
I wonder if the NRA will file a brief on behalf of Randy Edward Hayes in the Supreme Court. I wonder if VP Dick Cheney will sign a brief including members of Congress on behalf of Randy Edward Hayes in the Supreme Court. I wonder if any other bloggers will connect the dots between Heller and Hayes like I do. I wonder if everyone just thinks I'm just a gun-crazy, latte-sipping blogger.
Some recent related posts:
March 24, 2008 at 11:21 AM | Permalink
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Comments
Prof. Berman, interesting post. But is there any indication that Hayes made any constitutional or Second Amendment challenge to the federal statutes? I think this would be a poor vehicle for adjudicating Heller's impact on the domestic violence firearms laws. I would expect either a post-Heller prosecution or some kind of declaratory or injunctive action by Domestic violence convicts after Heller.
Posted by: Texas Lawyer | Mar 24, 2008 1:02:51 PM
"If the Second Amendment truly protects an individual right to domestic self protection, prosecuting Randy Edward Hayes for having a Winchester in his home seems very constitutionally troublesome."
Doesn't it, though?
About 69% of federal prisoners are incarcerated for three things the Founding Fathers did not envision being regulated by the federal government - intoxicants, immigration, and non-violent gun possession offenses. Where are the Originalists when you need them? ;)
FWIW, I think you're definitely right to view this as a tea leaf in favor of a pro-individual right ruling in Heller. The cert grant implies SCOTUS wants to address the politically thorniest resulting question - the gun rights of felons - as soon as possible after the Heller ruling.
Posted by: Gritsforbreakfast | Mar 24, 2008 1:06:16 PM
I wish the SCOTUS would clarify or define pardon in 18 U.S.C. 921 (a) (20). The courts have have agreed and SCOTUS regocnized in US v. Logan that civil rights restored is the three key civil rights but pardon has never been difined in relation to the exemption clause of 921 (a) (20). I express this because of the many different kinds of pardons that states provide. Some are full and others are partial but even the partial pardons are still pardons. Does a partial pardon count?
Posted by: Paul | Mar 24, 2008 1:16:54 PM
To answer Texas Lawyer's question, no, there weren't any 2nd Amendment arguments made in either the SDWV or the Fourth Circuit. It was attacked from an entirely different direction.
Posted by: JDB | Mar 24, 2008 1:26:04 PM
Whoops, that should be "NDWV." Hayes's counsel is from the Southern District, but I forgot this one started up North.
Posted by: JDB | Mar 24, 2008 2:09:16 PM
Texas Lawyer's assessment sounds about right.
1 If the Supreme Court intends to put more life into the Second Amendment in Heller, it's interesting to speculate about what implications that might have beyond that case.
But if Heller is to affect the gun rights of felons and other people, intuitively I would expect the Supreme Court to wait for the lawyers to make those arguments on their own. If Hayes's lawyers haven't made any Second Amendment arguments, the court is entirely free to treat those arguments as waived, should they be made in the merits briefing.
2 Although this case technically involves "the gun rights of felons," the question on which the Court granted cert appears to have little to do with that. The question is what is a "misdemeanor crime of domestic violence" for the purpose of the statute. If the Supreme Court wanted to make a statement about the constitutional right to have a gun, this seems like a particularly poor case to do it.
But hey, it could happen. Constitutional rights can influence statutory interpretation through "constitutional avoidance."
Posted by: | Mar 24, 2008 3:05:08 PM
Off the top of anyone's head, have the Supremes ever held an argument upon which Cert. was granted as "waived" (unless the issue was waiver itself)?
Posted by: S.cotus | Mar 24, 2008 4:19:05 PM
S.cotus - -
Stern & Gressman has a big discussion of this issue. There may be some question about whether the "pressed/passed upon" rule is jurisdictional or not, but even if it is merely prudential it is still the all-but-universal practice. Occasionally, as happened today (Pearson v. Callahan), the Court will certify its own question to add to issues already granted. But unless that happens in Hayes, I think the case will be largely free of Heller-type concerns.
Posted by: Texas Lawyer | Mar 24, 2008 7:09:21 PM
I can't see much relationship. Hayes was convicted of ordinary battery, the victim being his spouse. The issue is whether the federal statute prohibits firearm possession by a person convicted of an offense that has an element of (a) use, etc., of force, which offense was committed against a household member, or (b) that has an element of use against a household member. That is, does use against a household member have to be an element of the first offense. At most a finding of individual right might incline the Court toward a narrow reading of the statute.
DTH, attorney doing mostly civil work.
Posted by: David Hardy | Mar 24, 2008 8:55:31 PM
A case I'd like reviewed by the SCOTUS. Here in California (and many other states), if a women asks for a restraining order against a man, it is automatically granted, without regard to any actual proof of any wrong-doing by the man. A side effect of this is when the man is issued the restraining order he is given 72 hours to transfer his firearms to a licensed dealer or turn them into the police.
My (now) ex got a restraining order. She lied to the judge. I turned in my firearms thinking I would get them back after the hearing. With the help of an attorney I filed a response that provided proof that my ex had lied. She she said I assaulted her daughter, my step-daughter. The reality was her drunk 15 year old daughter attacked me with a knife when I told her she couldn't go hang out with her druggie friends. The police report showed this (I was the one who called the police). The judge chose to leave the restraining order in place even though it was based on perjury. There is not justice for a man falsely accused by a women in this state.
I have not been convicted of any crime. I have done nothing wrong. Yet I have been stripped of one of my Constitutional rights because of political correctness and the assumption that the man is always the bad guy.
Posted by: Ogre | Mar 24, 2008 9:17:10 PM
Well Ogre, if Heller wins in the SCOTUS, discuss the following words with your attorney:
"Writ of Habeas Corpus."
Posted by: Letalis Maximus, Esq. | Mar 24, 2008 9:24:45 PM
That's a very interesting reading. The Court could be wanting to pre-empt a flood of felon-in-possession challenges, and sustaining a Lautenberg Amendment (wife-beater-in-possession) conviction would presumably incorporate the more serious case. But isn't the court usually more than a little reserved in granting cert.? I'll defer to the professors and appellate practitioners here, but isn't it more likely (Occam's Razor) that they want to address the issues raised in the case's actual briefs?
The NRA is unlikely to intervene, in my opinion. The NRA stayed out of Emerson (5th Circuit) and only came on board in Palmer/Heller when it was clear that Alan Gura and the other gun-rights groups were taking it all the way, NRA or no NRA. From their point of view, the corrosive effect on their reputation of siding with a convict probably outweighs any benefit they can bring to the case, or vice versa.
I'm not an NRA member and obviously don't speak for them, that's just my hunch. To answer your question to your commenters, Professor, I'm a non-lawyer who is casually interested (the law is to all of us as the revolution was in Trotsky's famous formulation, right? We may not be interested in it, but...). I followed the Instalanche. I see a number of other posts I want to read here before heading back! Thanks for the insight and the chance to comment, I hope I added something useful.
Posted by: Kevin O'Brien | Mar 24, 2008 9:51:21 PM
"I wonder if everyone just thinks I'm just a gun-crazy, latte-sipping blogger."
Please, tell me you don't sip lattes!
Posted by: will | Mar 24, 2008 9:56:39 PM
The cert grant implies SCOTUS wants to address the politically thorniest resulting question - the gun rights of felons - as soon as possible after the Heller ruling.
As someone else pointed out, the person was previously convicted of of a misdemeanor not a felony. So if the 2nd Amendment protects an individual right, we now face the question: should you lose one of your Constitutional Rights for committing a misdemeanor?
What other Constitutional rights can you lose for committing a misdemeanor? Any?
Posted by: Greg | Mar 24, 2008 10:25:02 PM
I am a public defender in Montana, and this damned law has had an enormous impact on many of my clients. Wife slaps husband, husband pushes wife, wife races to call 911, husband arrested with no bail until seen by the judge. Later, they reconcile (about 85% of the time) and after husband has been convicted, he needs to go hunting, because for the poor, a significant portion of their protein comes from venison and elk.
I have to tell him that if he is caught, 5 years and $50k and a federal felony.
I wonder if the next step in this line of reasoning wouldn't be that if you are convicted of using curse words as well, you would lose your 1st Amendment rights too.
Sorry, just venting.
Posted by: Steve | Mar 24, 2008 10:28:58 PM
Has anybody challenged federal statutes on equal protection grounds in that people who are convicted of felonies related to "business practices" are not considered "convicted felons" for the purposes of obtaining a firearm. However, people convicted of forgery , odometer fraud and other non-violent crimes are pretty much SOL.
Posted by: Jay | Mar 24, 2008 10:44:43 PM
I agree with Greg. The "weak" facts of Hayes coupled with the rare and obviously discretionary grant of cert., makes me think the Supreme Court will reverse Hayes, perhaps on a misd./felony distinction alone. Maybe the Court sees abuse in the application of DV laws and wants to send a message to overly zealous legislatures, DAs and Solicitors. Cert. gives the Court a chance to vent.
If Heller is not pro-gun, why grant cert. in Hayes?
It takes 4 to grant cert,. right?
Posted by: pensat | Mar 24, 2008 11:22:13 PM
Professor,
Perhaps the solution is to evaluate the practice by Congress of passing ex post facto laws that work a bill of attainder like forfeiture of rights for conduct that was a misdemeanor when charged, a misdemeanor when the defendant determined what it was worth to him or her to fight, and a misdemeanor when convicted years prior.
Isn't it somewhat repugnant to say that if you did a "no contest" to a misdemeanor charge ten years prior, Congress can just decide to rewrite the consequences of that act later?
I'd love to see what people would say if oCongress decreed: "If you've ever been convicted of a misdemeanor crime of domestic violence, you lose the right to habeas corpus, the state gets to pick your religion, and the government can quarter troops in your home now. Perhaps that ten year old crime (a misdemeanor, lets not forget), can be super felonized in consequences by an enactment that says if you've ever been convicted, the rights against self incrimination, or little trifles such as due process or the prohibition against cruel and unusual punishment should fall away too.
Posted by: Gonzo | Mar 24, 2008 11:55:40 PM
I'm not a lawyer and this 'technobabel' talk is beyond me but i have to ask something.
If they rule that a person that commits a misdemeanor shouldn't lose his rights to bear arms as if he committed a felony, wouldn't have a bearing on how they are applying sex offender statutes to misdemeanor/felonies the same?
The way im looking at all this (and i could be totally wrong) is misdemeanors carries no lose of rights and thats the point they are trying to make with this case. If SCOTUS agrees with this then it should have a larger bearing on many laws that have been passed that affect misdemeanor/felonies convictions.
Sorry if i missed the point entirely but i had to ask.
Posted by: Mark | Mar 25, 2008 12:08:09 AM
Mark,
Sort of my point.
Further to my post, above, my dearest just pointed out that under the rationale of these "ever convicted of a misdemeanor of domestic violence" laws would apply equally to a Congressional act that prohibited ownership or use of any automobile, by any person ever convicted of a misdemeanor traffic infraction.
See the problem?
Posted by: Gonzo | Mar 25, 2008 12:11:46 AM
Gonzo,
I've saved this post to favorites, just to preserve your comment prior to Mark's question and your subsequent reply.
As I've just said to herself on the adjoining sofa; "I've just read one of the fifty most profound blog-comments I've ever had the pleasure to read"
You didn't just hit the nail on the head, you blew it through the plank and down into China.
Your take on this is much appreciated, and I hope others here take the point of it and wind it up into proper legal scholarship.
And then use it in the courts to scourge the antis with it.
Thank you, Gonzo.
Jim
Sloop New Dawn
Galveston, TX
Posted by: Jim | Mar 25, 2008 1:10:27 AM
It is decided that we have a constitutional right to firearms I see another question that will surface in cases of felon and guns. If the courts decide that felons are not entitled to the right to bear arms, then how long are they denied a constitutional right? Should they be denied a constitutional right for the rest of their life even if they are reabilited for a nonviolent crime for which they have paid for and have not reoffended?
Posted by: Paul | Mar 25, 2008 9:36:11 AM
Great question Paul I would like to hear some responses to that one.
Posted by: Gary | Mar 25, 2008 9:56:11 AM
It seems to me that a lifetime denial of a Constitutional right should be subject to the strictest scrutiny. How can anyone object in good faith to making the government prove that such a law meets a compelling government interest and is narrowly tailored to achieve only that interest?
I believe the current life-time ban on firearm ownership by those convicted years ago of a non-violent felony and who have since lived a peaceful life would not even pass the rational basis test, were it applied honestly and in good faith. Nor does the Lautenberg amendment on DV misdemeanor conviction because it has no time limit and applies ex post facto.
I wonder why more weight is not given to the empirical evidence that the ban on felons in possession actually has little if any effect on currently violent felons having possession of firearms and only restrains those with old convictions who have rehabilitated themselves and are now striving to be law-abiding citizens?
Posted by: Flash Gordon | Mar 25, 2008 11:25:11 AM
I'm just a lay person who has read and studied the law.
Isn't the real issue with Lautenberg (18 U.S.C. § 922(g)(9)) that (1) it created an ex post facto law and (2) it raised a state misdemeanor charge to the effect of a (Federal) felony?
Lautenberg is ex post facto in that it applied to persons who were convicted of "domestic violence" prior to Lautenberg's passage. Leaving aside the reality that "domestic violence" is an ambiguous, evolving concept where there is a statutory predisposition that one sex is always guilty and it has been stretched into areas no one ever foresaw (such as a "domestic" relationship between mere roommates), Lautenberg instantly applied to persons who's crimes were committed anytime before the bill was signed. My dictionaries describe that as "ex post facto" (after the fact, yes?) and I think Article 1, Section 9 of that "living document". the US Constitution addresses that very point ("No Bill of Attainder or ex post facto Law shall be passed.") in its third paragraph?
Now I'm not a nuanced professor, but that's pretty clear. Obviously Congress has passed ex post facto laws before and since (President W. Clinton's retroactive tax code changes come to mind), but that does not change the reality that they are unconstitutional.
As to the second point, 18 U.S.C. § 922(g)(9)raises the simplest misdemeanor conviction for what ranges from a minor push to an actual situation where grievous bodily harm is caused to the effect of a felony.
Now most law enforcement officers will tell you that under the current zero tolerance for "domestic violence" if a 911 call for a domestic situation is answered, "some one is going to jail" - and the sex of the "some one" is male, regardless of the actual situation.
So, I have a fight with my wife (which I think we'd agree happens between married couples) and the neighbor calls the sheriff. There is a good chance that I'm going to jail, regardless of who shoved who. Again, I'm not nuanced and sophisticated, I just see what I've seen and I've seen that society ignores (for the most part) violence inflicted by female domestic partners on male domestic partners and there is a 'zero tolerance' attitude which assumes that the man is always wrong.
The various states, in reacting to activism on the part of women's rights advocates, have removed the woman from the decision to press charges. So if I was hypothetically arrested for even the most non-violent "domestic violence" my local DA, who plea bargains multiple offender DUI manslaughter cases down to the lowest possible charge, would (hypothetically) throw the book at me.
Now, I'm hypothetically convicted a a simple misdemeanor domestic violence charge, still married, still living with my feisty bride, and I've (hypothetically) lost a constitutionally guaranteed right.
Should I lose my right to free speech if I cuss out a law enforcement officer or ask a politician an embarrassing question or talk back to my judicial master?
Do I lose my right to peacefully assemble if I get arrested for parading without a permit?
Do I lose my freedom of religion if I exercise a belief that the State does not approve of?
No. But if my wife gets mad at me and punches me (which she has and does)and I push her aside to leave the room, I could lose my right to bear arms.
Again, not a nuanced and tenured sophisticated law professor or a geriatric Senator appointed by the one of the most corrupt state party machines in history, but it just doesn't make sense.
Of course I am a man and therefore hideously evil; a gun owner and therefore a Neanderthal troglodyte beneath the contempt of my nuanced betters; I dare to actually believe in the basic principles under which the Framers operated, which is counter-social justice and counter-progressive; and I refuse to knuckle my forehead to my anointed betters. So ignore me.
Posted by: Major Mike | Mar 25, 2008 2:16:48 PM
