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February 24, 2009

SCOTUS undercuts constitutional gun rights in Hayes without even mentioning Heller or Second Amendment

As regular readers know, I have been watching the Hayescase involving a federal statute prohibiting gun possession by certain misdemeanants as a potential Second Amendment sleeper case.  And today the Supreme Court decided Hayes and kept the Second Amendment sleeping.  Indeed, I think we can and should read Hayes as an indication that the Justices are just fine with the Second Amendment sleeping with the fishes: not a single Justice even mentions Helleror the Second Amendment in the course of broadly interpreting a federal criminal statute that prohibits certain misdemeanants from ever possessing a gun.

Posts by Lyle Denniston here and here provide the basic story of Hayes, which will appear (and may be reported) to be just a technical little statutory interpretation case:

The Court has issued an opinion in United States v. Hayes(No. 07-608). The decision below, holding that a predicate offense under 18 USC 922(g)(9) must have as an element a domestic relationship between offender and victim, was reversed in a 7-2 opinion by Justice Ginsburg. Justice Thomas joined the majority only in part. The Chief Justice filed a dissenting opinion in which Justice Scalia joined. The opinion is available here...

[T]he Court expanded the reach of a 1996 federal law that bars possession of guns by a person convicted of a domestic violence crime that was a misdemeanor.  The law applies, the Court said, whenever the battered victim was in fact the wife or other family relative of the offender.  Thus, while such a domestic relationship must be proved beyond a reasonable doubt, it is not a necessary element of the crime, the decision found.  “It suffices for the government to charge and prove a prior conviction that was, in fact, an offense committed… against a spouse or other domestic victim,” the Court explained.

Once I have a chance to review the Hayes opinion closely, I will have a lot more to say about the opinion.  But my first reaction results from the fact that the Second Amendment and Hellerdo not even get mentioned by the dissenters, even though the majority's ruling would seem to provide a green light to jurisdictions looking for pretty easy ways to functionally work around the rights supposedly championed in Heller.

Because Hayestechnically involves the gun rights of "bad men" who have been convicted of certain misdemeanors rather than "good men" who never break the law, I suspect and fear that gun rights activists will try to brush this major loss under the rug.  But, as Justice Scalia stressed in his dissent yesterday, "bad men, like good men, are entitled" to have certain constitutional rights enforced on their behalf.  But, as Hayes reveals, if and whenever any government entity decides you are the wrong kind of of man, the Second Amendment and Heller become not merely diminished but entirely mute/moot.

Some related Second Amendment posts:

February 24, 2009 at 10:49 AM | Permalink

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"But, as Hayes reveals, if and whenever any government entity decides you are the wrong kind of of man, the Second Amendment and Heller become not merely diminished but entirely mute/moot."

I'm not so sure about that. Hayes after all involved people who were convicted of crimes of *violence.* If the federal government were to outlaw gun ownership by anyone ever found guilty of parking violations, that might be a different matter...

Posted by: DavidT | Feb 25, 2009 10:34:44 AM

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