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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:

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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

Whether there is an individual right to bear arms or not, it will clearly be constitutional to bar a person from possessing firearms following a criminal conviction (see, the 5th and 14th Amendment Due Process Clauses which explicitly allow for the deprivation of freedom providing there was a fair trial). A lifetime ban for convicted felons is probably also going to be constitutional no matter what the Second Amendment actually protects. Quite simply, the government has the right and power to restrict people's liberty providing they provide "due process of law" (just like the takings clause of the 5th Amendment specifically allows the government to take your property if they provide just compensation).

States may try to legislate time limitations on the firearms ban, such as they have done with voting prohibitions (such as only having them apply when a person is on probation or parole). There is a question on whether any such limitations will matter though, since like the medicine marijuana law, people who rely on state laws allowing firearm prosecution could still face federal prosecution. Obviously, there is some merit for placing a time limit on the length of a firearm ban for non-violent offenders - and at the minimum there should be a legitimate process available for them (and even violent offenders who have made a significant showing of rehabilitation) to get that right restored. However, such changes are likely to come about through legislative efforts, not the Supreme Court. It would be very odd indeed for the Supreme Court to rule that while it is perfectly constitutional to execute a person if they receive due process of law or imprison a person for life, it is not okay to deprive a person of a gun even for life following a fair trial. Kind of gives an entire new meaning to the phrase "out of my cold dead hands." IF the courts get involved in the felon in possession issue, it will likely be limited to telling the government they need to have a functional system for felons to apply to get their rights restored.

Posted by: Zack | Mar 25, 2008 2:44:06 PM

Zach:

The analysis you offer is good. And no one questions the fact that a consequence of a conviction can be a deprivation of rights.

But suppose I look at voter rolls and I decide that I would like to twist the election in my state, which does not bar released felons from exercising the franchse, and did not bar them at the time they took their convictions.

Would it be appropriate to pass a law that suddenly, and for an end distinction from punishment, causes a felon who was convicted 30 years ago to suddenly lose his right to vote. When it that wasn't a consequence of the due process noticed proceedings to which he was a party?

Posted by: Gonzo | Mar 25, 2008 4:54:02 PM

Gonzo, the ex post facto clause should bar subsequent consequences that did not exist at the time the law was enacted (but see, Kansas v. Hedrick and other sex offender cases (the cases involving sex offender registration) which have upheld restrictions up to continued incarceration after the completion of a prison sentence as being "civil.") Thus, if a state had allowed felons to vote, but then decided to change their laws such that felons cannot vote, it would be unconstitutional if they did it as punishment for the felony, however, if the state would term it a civil not criminal consequence, it might be upheld because the ex post facto clause only applies to criminal penalties (however, the state would have to show at least a rational basis for why felons should not be allowed to vote). However, the due process clause would require that there be some sort of hearing before the right to vote be denied civilly (as is the case with any other civil depravation of rights, such as an involuntary commitment for mental health treatment).

The Supreme Court thus far has given states wide latitude to enact civil sanctions (up to the point of depravation of liberty) in order to promote health and safety (again, Kansas v. Hedrick and Kansas v. Crane are the best examples, but also note Fousha v. Louisiana which shows that there are limits to the state's power to detain individuals for purposes of protecting other people). Any ruling on the Second Amendment is likely to recognize that the state's long standing "police powers" (that is the power to protect the health and safety of their residents) is going to limit any Second Amendment right to bear arms. Unlike, voting, possession of firearms does raise the issue of police powers. State generally have been given broad rights under the police power to limit the use of property. That is why I expect that the courts will largely defer to the state legislatures on the matter of felon possession of firearms, although I do see the possibility that if a individual right under the Second Amendment exists that a court might order the government to allow a realistic opportunity for people to restore their rights. The fact that firearm possession involves the "police powers" means that it is a much different matter than voting. That is why even if the Second Amendment is found to protect individual rights, states are still likely to be given wide lattitude to regulate firearms possession (including likely barring felons from possessing firearms).

Posted by: Zack | Mar 26, 2008 9:48:09 AM

I think I may have been a bit unclear, but I do not think that barring voting by felons ex post facto would be upheld as a civil sanction, but I do believe that barring firearm possession by felons would be upheld as either a direct consequence of a criminal conviction or as a "civil prohibition" due to the traditional latitude states have in matters affecting public safety under the police powers.

Posted by: Zack | Mar 26, 2008 10:02:44 AM

Well here's another idea to chew on. If there is a right to bear arms and the reason for restricting felons from owning firearms is a public safety issue, then perhaps federal firearms laws can be challenged for this reason: Some states allow felons to own guns but don't restore all three key civil rights. Some just restore 2. Some only restore the right to possess a fire arm but no civil rights. Well if a state allows a felon to at least own a gun then that is a strong indicator that such a person is not a public safety hazard at least in the eyes of the state. I know this particular issue is forclosed in many case law but can it be rechallenged if there is a constitutional right to bear arms.

Posted by: Paul | Mar 26, 2008 12:07:15 PM

Nope, not a lawyer, didn't stay at holiday inn express last night either. Having exposed my lack of legal expertise, current events point toward affirmation of rights revocation based on obviously flawed (ex post facto) federal misdemeanor law.

Heller will 'uphold' individual right with no limit to 'reasonable restrictions' up to and including bans by weapon type and catch 22 qualifications to exercise said right. Hayes will affirm the reasonable restriction of past misdemeanor convictions which will expand by leaps and bounds to ultimately include traffic violations.

Best

Lane
Texas

Posted by: Lane | Mar 27, 2008 9:50:49 AM

I think randy hayes should lose his guns and the right to own a gun. I was abused physically and mentally for 6 1/2 years. Had a ruger 9mm held to my head cocked and ready to go, had pillows held over my face until i passed out, choked, slapped, punched, and kicked. The reason Randy was arrested in 2004 was because his girlfriend got on the phone said that he had a gun held to her head (been there had that done)and my son was there, so i called the law to get my son out of there. Mr. Hayes knew that he was not allowed to posse any firearms when this happened in 1994. He would lie to you if the truth was better, i know i lived with him for 6 1/2 years. Also a little more information on Mr. Hayes: he has been diginosed as having a chemical imbalance and refused to get mediciane because it costs too much.

Posted by: mary | Mar 30, 2008 8:37:12 AM

I'm not a lawyer, I'm an ordinary steel worker. I also think the Supremes are going to side with the government in both Heller and Hayes.

In Heller, the federal court decided that firearms were an individual right. DC complained; Heller didn't want the Supremes to hear the case, since he already won. Supremes will hear the case and should make a case for individual rights, subject to reasonable restrictions for public safety and penalties for criminal acts.

In Hayes - I read the decision by the court of appeals, and the briefings before SCOTUS. Hayes also argued against the court accepting the case, since he had also won.
The question posed was in the language of the Lautenberg amendment - whether or not the charge of ordinary misdemeanor battery applies when the elements of that charge do not mention domestic violence - as the amendment now written suggests. 9 circuit courts have claimed it does, with one court dissenting (giving Hayes his victory).

Even after Heller determines that there is an individual right to keep and bear arms (in your home for defense) that will make no difference in this case, since the question posed was so narrow. SCOTUS will disregard the constitutional implications of the ex post facto clause stripping someone of their 2A rights and determine what the legislative intent of the Lautenberg amendment was. Sorry Hayes, I don't forsee much luck to you in this one.

Posted by: Mike | Apr 1, 2008 2:19:30 PM

After listening to the oral arguments in the Heller case, it seems quite clear that the court will recognize and individual right to keep and bear arms, but subject to reasonable regulation.

Reasonable is in the mind of the beholder -- or more accurately, the judge you happen to be in front of.

Personally, I am troubled by forcing even a past felon to be a defenseless victim in his/her own home. I find that to be morally troubling. Furthermore, not all felons are alike. Martha Stewart is not likely to go out and commit armed robbery. Tax cheat felons (to identify another non-violent felon) are not in the same category as armed robbers. That said, I sure don't want felons convicted of violent crimes to have guns in their cars or on the streets for many years after release.

Charges that arise from domestic disputes are notoriously unreliable. And anyone who has practiced in the criminal courts knows that there is tremendous pressure on even the innocent to plea bargain. A defense is expensive and risky. (Ask all those non-rapists that DNA evidence is getting released from prison).

Bottom line, i do not agree that a blanket gun prohibition for convicted felons in their own home is per se reasonable. I hope that Heller opens that door to rational decision-making.

Posted by: Conservatarian | May 7, 2008 1:20:33 PM

As a card carrying black helicopter member, I belive the governmentwill pass ANY law that restricts or prohibits the ownership of defensive firearms under the guise of safety.

DV laws are along with Brady and now the new laws against mental competence, whos left owning a gun. I hope SCOTUS drops the big one and re asserts the god given rights of all citizens to own a gun. The truly bad guys will be in the clink or shot down anyways.

Posted by: rcon1 | May 12, 2008 12:18:18 PM

As a card carrying black helicopter member, I belive the governmentwill pass ANY law that restricts or prohibits the ownership of defensive firearms under the guise of safety.

DV laws are along with Brady and now the new laws against mental competence, whos left owning a gun. I hope SCOTUS drops the big one and re asserts the god given rights of all citizens to own a gun. The truly bad guys will be in the clink or shot down anyways.

Posted by: rcon1 | May 12, 2008 12:18:21 PM

Quite simply, the government has the right and power to restrict people's liberty providing they provide "due process of law".
In 1994, [Randy Edward] Hayes pleaded guilty to a misdemeanor battery offense.
Lautenberg enacted by the 104th United States Congress in 1996.
July 25, 2004 Hayes was arrested and, on January 4, 2005, indicted in federal court.
Where is Mr. Hayes "due process of law" here?
Could one surmise, had Lautenberg been law in 1994, Mr. Hayes might have gone to trial instead of plead? That would be fair due process.
Might there be some that expediously plead prior to Lautenberg enactment just to conveniently dispose of the case since the penalties were only of a misdemeanor? Shouldn't these people get a "due process" do-over now that the rules of the game have changed? Why not?
The idea that this is not an ex-post facto because losing 2nd amendment right is a civil penalty not a criminal penalty is just lawyer BS.
Not a lawyer, just a concerned citizen following legal system issues.

Posted by: jim | May 13, 2008 6:08:44 PM

After the anticipated Heller decision, I don't see why it isn't possible to challenge Lautenburg on constitutionality based on ex post facto law. Before Heller, courts had not gone with that argument because there was no loss of an individual constitutional right. After Heller, there would be, and it's a valid argument.

Posted by: Mike | May 17, 2008 1:34:13 AM

I'm writing this now that Heller has been decided 5-4 in favor of the second amendment.

I've listened as all of you discuss the rights in question. I reside at ground zero of this case and its impact. In 1985 as a teen ager I resided in a state in the 11th circuit and was married in secret (without the knowledge of either of our families) for only a few months to my high school girlfriend. During that period we never resided together or ever had children but we did get into a physical altercation which resulted in a "simple" battery conviction against me in that state.

Fast forward 23 years I'm now a business man with three homes spread across the country. My wife and children live in the 11th circuit, we have a vacation home in the 9th circuit, and I mostly live in the 4th circuit and work both in the 4th and DC circuits.

I've not been in trouble with the law since 1985 but thanks to the Lautenberg Amendment if I wanted to own a gun since 1998 I'm a felon facing ten years in the slammer. Now with the forth circuit's Hayes ruling in place since April 2007 my rights have been restored to posses a firearm in the five states of the forth circuit becuase I was not convicted of "domestic" battery.

Where I live in Maryland for example, I can go down to the local gun store and very legally now buy a rifle, shotgun, or pistol and keep it under my bed for self defense - a good idea in PG county. Let's say I buy a rifle in Maryland and want to go hunting in Virginia. I can do that legally also. However, when I make the trip to go hunting, I would need to take the north end of the Washington Beltway on my trip into Virginia because a small sliver of the Wilson Bridge on the southern side of the Beltway passes through the District of Columbia (DC Circuit) where my "simple" battery conviction IS considered an MCDV making me guilty of a federal felony while on a portion of the Wilson Bridge.

It goes without saying that I can't buy a gun in the forth circuit and take it into the 11th circuit to give to my wife for home defense without being guilty of a felony in the 11th circuit when buying the gun was perfectly legal in Maryland. Lets say I go hunting on the Virginia / Tennessee border. If I am standing in Virginia legally with my new deer rifle and I shoot a deer standing in Tennessee am I guilty of a felony? I suppose if after I shoot the deer, I lay down the rifle and walk across the border unarmed into Tennessee to drag the deer back into Virginia the answer would be no. Granted I did fire ammunition across the border into Tennessee but the ammunition was not in my possession once it was in Tennessee.

I suppose all of these bizarre scenarios explain why the Supreme Court HAD to take this case on review. From a layperson's standpoint, can some of the legal scholars on this forum help me out. We now have a Heller ruling in which Scalia and the majority said I have an individual right to own a gun under the 2nd amendment. Scalia did qualify the ruling does apply to felons or the mentally ill. The ruling said NOTHING about MCDV or restraining orders against person not convicted of any crime whatsoever.

Could it be that the same four justices that granted the cert in Hayes are the dissenters in Heller? If a majority of the court signed onto Scalia's opinion that only felons and the mentally ill can't possess a firearm, then does that bode well for the full nationwide restoration of my second amendment rights?

Posted by: Chris | Jun 29, 2008 11:05:22 AM

In the state of Cal domestic protective orders (clets) are issued in the normal course of business without any showing of Harm, see US V Campbell . “Ten after the divorce” . Many attorneys will tell their clients take the protective order that way the judge will let you see your child,

You may not attack the state court order in federal court, even if your constitutional rights were violated. In other words, if you are getting a divorce in Cal sell your firearms
before the first hearing.

Posted by: larry | Aug 16, 2008 10:10:04 PM

Update US v Campbell New ruling from commissioner of appeals
I may attack state court process that lead to US v Campbell
Since I am blind, being able to read case law might be a good thing at this time.

I proved my point, not sure if I want to file the appeal now, if I win that will be a cert , why 5000.00 such orders per day in all states . One thousand per day in the Cal courts all attach guns without any proof of harm

Federal court Judge Shubb Sac court, I understand those judges are running an assembly line US V Campbell CR S 03- -0483 wbs gg hp

Posted by: larry | Nov 13, 2008 11:29:51 PM

Update oral argument on USA v. Randy Hayes. It seems that after reading the oral argument transcript as argued before the court on November 11th, that this is going to be nothing more than DC v. Heller with a magnifying glass.

Clearly Scalia came loaded for bear (or gun grabbers). Scalia appears ready to hold the Lautenberg Amendment unconstitutional based on the Heller case (only persons convicted of a felony or the mentally ill may not posses a gun). Roberts and even Alito did not take issue with that notion and as usual Thomas was a bump on a log.

The liberals were goose-stepping behind Ginsberg and Stevens. Four votes available to reverse the forth circuit no doubt affirming Lautenberg.

And yet again we are left with Anthony Kennedy. Kennedy called the law a "mess" during oral arguments and of course bought into the majority opinion in Heller. If Kennedy simply affirms the 4th circuit ruling without finding the Lautenberg amendment unconstitutional, its not going to take Obama and his lapdog congress five minutes to rewrite the statute. Affirming the 4th circuit will be a hollow victory for 2nd amendment rights, and Kennedy whom strongly supported the second amendment in Heller has got to know this-will the election results impact the stance Kennedy might take?

My take is we are going to have a five to four decision (surprise!) affirming the 4th circuit but on what grounds??? That is the big question-if I could only get into the mind of Anthony Kennedy....either the Lautenberg Amendment is vague and therefore the rule of lenity applies or the side of Randy Hayes and the forth or it is outright unconstitutional

Any attorneys watching this case care to weigh in on my read of the oral arguments?

Posted by: Chris | Nov 23, 2008 5:25:59 PM

Jail house lawyer. Federal convict. Non-violent offence. It would seem to me that a life time restriction preventing me from owning a firearm is continuing punishment well beyond my sentence and could be considered a violation of the Eight Amend. in the though not cruel but certainly "unusal punishment".
When does the sentence end? Were is the certainly of the sentence? I served my time. This all happened 18 years ago and I have not offended again! Was my incarceration a "condition of servitude" ala the Fifteenth Amend. When do I become a "law-abiding citizen" again ? The government certainly grants me the right(I should say requires) of paying taxes, but has decided that I should forever be considered a felon and denied many Constitutional rights, especially the Second Amend. right to possess a firearm.
Many States now have restoration of rights after a offender has served his time and paid all fines, etc. Not where I live. Where is the 14th. Amend. for me?
There should come a time when anyone convicted of a non-violent crime becomes a citizen again with all the rights of citizenship and the label of felon put away.
I'm just a simple man, unlearned in language and law, but eternal punishment is the purview of God and even he allows a way of redemption.

Posted by: Ray | Jan 9, 2009 11:09:23 PM

DEFENSE: We are in a Situation kinda the same and i'm looking for advise. My house burned down from a fire that started in the garage, igniting some scuba tanks we had in the gargage. Explosion rang out, my husband heard the explosions and reacted by grabbing MY 50 cal. and started shooting in the direction of the garage. the fire and police dept. got there and my husband got arrested and was charged with felon in possession. Never mind that my husband got run over by a police officer when they got to the scence and me and my kids almost got hit too. Now i can't even get a police report for my insurance claim... Please some advice would be heaven sent!!!

Posted by: Amy Morales | Feb 18, 2009 9:11:59 PM

I'm a student, a first year undergraduate college student, and I have to write a paper on any court case. I randomly chose this one.
I've read this case over and over again because I simply had trouble understanding it. I THINK I got the gist of what is going on, but now I'm just completely confused on what the Court concluded. Did they go in favor of Hayes or against him? How did the case come to an end?

Thanks for helping me out in advance!

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