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August 14, 2008

District Court rejects Second Amendment claim from misdemeanant

Thanks to this post at The Volokh Conspiracy, I see that this week has brought another example of a federal district court working hard to make sure that the constitutional right recognized by the Supreme Court in Heller is categorically unavailable to another group of individuals.  The decision this time comes in US v. Booker, No. CR-08-19-B-W (D. Maine Aug. 11, 2008) (available here).  Here are the fundamentals of a short opinion that merits a full read:

After the Supreme Court's decision in District of Columbia v. Heller, the Court concludes that the law prohibiting persons who have been convicted of a misdemeanor crime of domestic violence survives Second Amendment scrutiny...

Based on the absence of a meaningful distinction between felons and persons convicted of crimes of domestic violence as predictors of firearm violence, the critical nature of the governmental interest, and the definitional tailoring of the statute, the Court concludes that persons who have been convicted of a misdemeanor crime of domestic violence must be added to the list of “felons and the mentally ill” against whom the “longstanding prohibitions on the possession of firearms” survive Second Amendment scrutiny. Heller, 128 S. Ct. at 2816-17.

Perhaps I should be grateful that a defendant with the surname Booker is not creating important new law.  But I am more troubled that this case readily concludes that some misdemeanants are to be added to the list of individuals to be completely denied access to a right supposedly guaranteed to "the people."

Some related post-Heller posts:

August 14, 2008 at 05:44 PM | Permalink


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Tracked on Sep 21, 2009 10:00:24 AM


I honestly don't understand all this Heller-baloo. In an opinion where Scalia did his best to be vague and disengenuous about a lot of things, one thing Heller was particularly clear on was that it would not effect the Government's ability to reasonably restrict firearms in the hands of ex-cons. Really, the defense bar has to be smoking something to think these cases will go anywhere.

Posted by: Dweedle | Aug 15, 2008 9:20:08 AM

It is not reasonable to think that you could lose a constitutional right over a misdemeanor. If the crime is that serious it should be classified as a felony.

Posted by: BS | Aug 15, 2008 9:45:43 AM

The phrasing that some law "Survives Second Amendment scrutiny" is Orwellian and doublespeak. It is the right that survives or doesnt survive and here neither the right nor the Second Amendment survived.

These judges who can not uphold the one document that they swore to uphold defy logic. "..the right of the people" is pretty straightforward. The Second does not say "the right of the people excluding Moslems, mentally ill, blacks, public urinaters, wife slappers, felons...."
One has to ask if Maine keeps misdemeanants out of the state militia. If not, then the first portion of the Second Amendment should be considered with the last portion. If the legislators know the elements of a well regulated militia and do not exclude misdemeanants then the Second Amendment should sureley trump the do gooder statute at issue.

I bet those folks over in the Republic of Georgia wish that they had a well regulated militia and a populace which was bristling with arms. Steinbeck's "The Moon is Down" is a very relevant book vis a vis the Russian invasion.

Posted by: mpb | Aug 15, 2008 10:12:09 AM

The statute doesn't bar all people with misdemeanor convictions from having guns - just those convicted of domestic violence. In other words, these are people who are violent offenders who have commited acts of violence against a family member which is a major sign that perhaps they are not to be trusted to exercise their 2nd Amendment rights in a responsible manner.

In my opinion (and as the court pointed out), the justification for barring convicted wife beaters from having guns is much stronger than many felony convictions. Non-violent felons have a much stronger case to retain the right to bear arms than violent offenders even if the state classifies certain acts of domestic violence as being misdemeanors rather than felony.

Posted by: Zack | Aug 15, 2008 11:22:10 AM

mpd: There's a hitch in all that you say, as the document only says what it says when the Supremes say it says that, and you saying "say, this seems to be, say, unfair and contrary to what the my pocket Constitution says," while saying a lot for your good sense, ignores that we, ultimately, don't get a say.

Just like y'all collectively hoorah'd on this blog when the Supremes made up entirely new "6th Amendment" rights regarding the traditional role of judicial fact-finding in sentencing, don't act all petulant now when they create yet another conclusion out of Mystical Supreme Court Whole Cloth.

The Heller opinion is pretty clear that the government can restrict the "right" for certain classes of folks (whether that means wife-slappers, maybe, maybe not), that much is obvious, so unless they change their confused noggin's (which is entirely possible), this "right" will remain unexercised by the ex-cons of the world.

Posted by: dweedle | Aug 15, 2008 11:22:53 AM

Dweedle. I am with you. I have expressed this many time. I just don't understand how people cannot understand that the NRA sold them down a river. It has nothing to do with logic. It has to do with the following.

Beer drinking, Bambi killing=culturally OK.
Felons=Not OK.
Wife beaters=not OK.
non-popguns=not ok.

So if you are a drunk hunter using your little old pop-gun to kill a duck, you have nothing to fear. If you are anyone else, goooood luck.

Posted by: Daniel | Aug 15, 2008 11:48:34 AM

I analogize flourishing a weapon with flashing one's private parts. The State should not punish one for possessing: either a weapon or a private part. The state can only - or should only-- be able to punish one for flourishing.

If you let them take away your gun, the next thing they will want to do is take away is your thing. Some of these things are important.

I ask the readers of this Blog from the great state of Maine to chime in and tell us if the National Guard in Maine or any militia from Maine excludes misdemeanants. And I really do think that women who slap their husbands and get caught up in small misdemeanor violations should be allowed into the Maine National Guard or whatever Militia Maine might maintain and of course be allowed to have a gun in the home to protect themselves from criminal intruders.
Is there anyone from Maine out there? Norman Main?

Posted by: mpb | Aug 15, 2008 10:43:00 PM

Well, I went to Westlaw and looked up the Maine statutes on eligibility for national guard service. The Maine statute referred us to 32 U.S.C. Section 302 and there is a case therein called Gallo v. Brown DCR 1978, 446 F.Supp. 45 which holds that one is not eligible for service is one has been convicted of a crime for which the penalty is one year or more. Since misdemeanants generally are not exposed to such a sentence it would seem that the wife who slaps her husband and is convicted of misdemeanor spouse abuse is still eligible for the Maine National Guard or militia. So, if the "well regulated militia", of the State of Maine, "is necessary to the security of a free state", then the right of that wife who slapped the husband "to keep and bear arms shall not be infringed." Unless the Court determines that Maine is not a free state.

Why could the judge in Maine not read the entire Second Amendment and look up Maine law on the eligibility to be a member of the militia?

I reckon that those folks who are being blown up by Russian tanks in the Republic of Georgia would like to have had the full panoply of Second Amendment rights for the past two hundred years-- and the militia and guns that go with that Second Amendment.

Posted by: mpb | Aug 15, 2008 11:25:23 PM

Well guys,... Something you are missing... You don't have to have a domestic violence conviction to be denied your 2nd amendment rights. You also lose your 2nd amendment rights if you have a restraining order against you. No trial, no due process. Just a judge saying that your not allowed to go within so many ft. of someone else. You become a felon in the eyes of the law. And as every divorce in the country now has a PRO attached... There you go. Seeing as there is now something like 55% divorce rate in the nation right now... That's more than half the population now with no 2nd amendment rights.
I know this first hand. I am/was a victim of this exact fact. I went through a divorce with a bi-polar woman that ended in me losing my FFL and carrier. The judge gave her a PRO even though she lived in NY and I in CO. Yep... You heard that right. She lived 2000 miles away and the judge deemed I was a threat to her. The whole gist of her arguement was that she made the case that I was an FFL. The judge saw this as an opportunity to get rid of one more FFL. We were given 3 days to prepare for the hearing. And 1hr. in front of the judge, to argue our case. That's it! No more!
I have all documentation to this fact available. You can write me at [email protected] if you want to see it or hear the rest of the story.
Hoping to hear from you soon

Posted by: Ray Garcia | Jun 3, 2009 1:33:19 PM

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