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November 11, 2008

Media coverage of Hayes oral argument is not gun shy

I complained in this post yesterday that the Second Amendment got absolutely no love or attention from the Supreme Court when it heard oral argument in the Hayes case.  Specifically, neither the Second Amendment nor the decision in Heller was even mentioned once during the Hayes oral argument.  For this reason and others, I was quite intrigued to discover this kind of coverage of the Hayes oral argument today in the Los Angeles Times.  Note this heading and subheading for the report on Hayes

Domestic violence abusers could get gun rights -- The Supreme Court will decide whether people convicted of misdemeanor assault against their spouses or partners should have their 2nd Amendment rights restored because of a flaw in federal law.

Consider also the story's lead and these additional snippets:

Thousands convicted of a misdemeanor for threatening or assaulting a spouse or girlfriend could once again own guns because of a flaw in the federal law.  That prospect grew more likely Monday after the Supreme Court gave a skeptical hearing to a government lawyer who argued that a crime of domestic violence should result in a loss of gun rights....

But during Monday's argument, Scalia said possessing a gun was "lawful conduct," and a wife-beating charge lodged against a West Virginia man was "not that serious an offense."...

The Brady Center to Prevent Gun Violence said a ruling for Hayes "could re-arm thousands of convicted domestic violence abusers."  About 14% "of all police officer deaths occur during a response to domestic violence calls," the group said.  On the other side, the Second Amendment Foundation said the "fundamental right" to own a gun should not be taken away over a misdemeanor.

This kind of media coverage reassures me that Hayes is a Second Amendment sleeper case even if the Justice may be eager to let a sleeping Heller dog lie.

Some recent related Second Amendment posts:

November 11, 2008 at 05:35 PM | Permalink


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I wish folks would view the misdemeanor/felony dichotomy as a meaningless anachronism in the modern day era of structured sentencing. Littering more than 500 pounds is a felony in NC, whereas Going Armed to the Terror of the People is a misdemeanor.

Bruce Cunningham

Posted by: | Nov 11, 2008 7:30:09 PM

Rights taken away, restored? Like that ever happens.

Other Bruce - I agree, there is absolutely no rational distinction between felonies and misdemeanors anymore... it's a complete anachronism. But I like that many crimes, by their definitions, have a one-year cap (or 2 years in a few states). If we got rid of that f-m dichotomy, I'd bet 5 years would become the default cap for most ordinary crimes.

The problem is people don't realize how long a week, let alone a year, really is. No ordinary penal code crime is worth more than 20 years in prison. Things like mass terrorism (9-11), genocide, and wartime treason are different. Those are the only crimes for which I'd ever support the death penalty, let alone anything over 20 years without parole.

Posted by: BruceM | Nov 11, 2008 7:53:22 PM

I think Doug's hope is vain. "Domestic violence" is a buzz word that sells papers. It's like the term wife-beater. The word is not designed to communicate any viable information; it's purpose is simply to inflame the passions.

The idea that LA Times cares about gun rights is laughable.

Posted by: Daniel | Nov 11, 2008 8:16:06 PM

Calling it "a flaw in federal law" seems incredibly misleading (and biased), especially considering that this is a statutory interpretation case.
If the Court rules in favor of the defendant, then, in essence, it is holding that the statute, as Congress wrote and intended it, requires x.

If Congress intended x, then how could x be a flaw? In fact, it's only "a flaw" in the mind of this article's author.

Posted by: DEJ | Nov 12, 2008 11:49:57 AM

Both Bruces - did you look at the Second Amendment Foundation's amicus brief in this case - I skimmed it over quick and Gura's approach strikes me as very reasonable he concedes that Congress has the Constitutional authority to bar persons convicted of domestic violence misdemeanors (and indeed states right at the beginning that it is a good policy). Then, he states that the Congressional bar must be strictly construed against the government such that the indictment against Mr. Hayes should be dismissed because he wasn't convicted of domestic violence. Then, he makes the point that the felony/misdemeanor distinction is largely meaningless for purposes of Second Amendment rights - that the test for restricting someone's Second Amendment rights should be based on whether they are dangerous - persons with violent convictions (such as domestic violence) can have their rights restricted whether the conviction was a felony or a misdemeanor - which would eventually if the Supreme Court adopts this approach would lay a groundwork for challenging firearm convictions for persons with long ago nonviolent felonies. Gura finally states that persons who plead guilty to crimes including crimes of domestic violence should be made aware their Second Amendment rights are being restricted - which would presumably mean that there would be no ex post facto operation

That seems like a pretty reasonable approach to me - putting the emphasis on whether a person has been shown to be dangerous (such as by engaging in violent crime) rather than a blanket restriction based on the abtirary felony/misdemeanor distinction. Hold Congressional bans strictly to their limit (which generally favors defendants) Then, greater awareness of the firearm restriction may well have a deterrent effect. Finally, put a realistic way for persons with long ago convictions to restore their rights by putting the emphasis on whether a person is dangerous to people or not.

Not sure if the court will adopt that approach, but it seems like a very sensible approach and perhaps evidence that after Heller that persons who favor gun control and gun rights advocates can work together to provide common sense solutions to problems, such as the problem of domestic violence.

Posted by: Zack | Nov 13, 2008 1:03:43 PM

thanks Zack, I'll look at it. I have just filed an appeal in which the def was charged with possessing a firearm by felon for having his grandfather's shotgun in his bedroom, inside a locked gun cabinet and unloaded. It was put there by the def's mother to get it out of her house because she was worried her husband would kill himself.


Posted by: | Nov 13, 2008 10:49:01 PM

Zack, I forgot to mention the felony underlying the charge was a twenty year old conviction for possessing cocaine.

Posted by: | Nov 13, 2008 10:50:20 PM

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