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February 24, 2009

One notable expression of concern about Hayes and gun rights

As of this writing, I have yet to see any public comments on the Hayes gun crime decision from the National Rifle Association or Second Amendment Foundation or on prominent legal blogs like Instapundit and The Volokh Conspiracy.  But I did come across this post at The Firearm Coalition, which provides this take on the import and impact of the Hayes ruling:

Today's Supreme Court decision means that anyone who has ever been convicted of any misdemeanor crime of violence — to include threats of violence, even if there was no possible way for the threat to be carried out and even if the punishment for the crime was only a $25 fine — is barred from ever possessing firearms or ammunition for the rest of their life if the victim of their crime was a person within the perpetrators household.  This leaves a large number of people at risk of committing unintentional felonies like Hayes did and it means that anyone with any record of battery or assault is likely to face drawn out delays whenever purchasing a firearm as NICS will have to determine the details of the case before approving the sale.

And of course — as with all gun control legislation — the objective and result of this law is not to keep guns away from dangerous criminals, but rather to make criminals of regular citizens and make gun ownership more cumbersome and problematic.  The passage of the Lautenburg Amendment cost thousands of police and military personnel their careers and often their pensions because they could no longer be in positions that required them to possess firearms, and it has ruined the lives of countless others who, like Randy Hayes, had no idea that they were not supposed to possess firearms and were caught up and prosecuted for being a "prohibited person" on possession of a gun.

Other posts on the Hayes decision:

February 24, 2009 at 10:22 PM | Permalink


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The Democratic party in action. And you can best believe that Obama loves this policy.

Obama will weep for violent thugs who knock out a kid and stomp him while unconscious, yet favor harsh sentences for a man like Hayes.

Given where Commerce Clause jurisprudence lies, I don't think that this law is unconstitutional, and it's difficult to devise a logical stopping point for determining what crimes make one ineligible for obtaining a firearm, thus the courts are probably not the right place to go for relief.

Posted by: federalist | Feb 24, 2009 10:33:59 PM

The NRA pushed for tougher laws and less constitutional rights for just about everyone thinking their 1st (religion) and second (guns) were relatively safe. They got their wish.

First they came for the.... but I wasn't a.... the hell you weren't.

As federalist would say, I have no sympathy.

Posted by: George | Feb 25, 2009 12:19:21 AM

The Republican Party gives lip service to gun rights. They had a President and they had control of both houses of Congress and did nothing. The majority on the Supreme Court handed down this drivel.

Posted by: mpb | Feb 25, 2009 10:11:49 AM

My only problem here is the ex post nature of the imposition. I would agree with Federalist that prospective application should not rise to a level of constitutional infirmity. However, we seem to have reached a point where it is considered perfectly appropriate to ratchet up the penalties against those already deemed guilty, and that I have much more trouble with.

Posted by: Soronel Haetir | Feb 25, 2009 11:16:14 AM

The concern that "anyone with any record of battery or assault" might be prohibited from possessing a firearm may be incorrect. The prior misdemeanor must have "as an element" the "use, attempted use, or threatened use of physical force." This may not encompass all battery or assault statutes.

The Court will decide this issue next Term in Johnson. While Johnson is not a 922(g)(9) case, it does ask whether a felony battery conviction "has as an element the use, attempted use, or threatened us of physical force." Resolution of Johnson will almost surely impact how 922(g)(9) is interpreted.

Posted by: DEJ | Feb 25, 2009 12:09:09 PM

mpb: liberal dems create a statute that you guys decry and the GOP is to blame because it cannot muster the strength to repeal it.

Gotcha. To the libs in here, you own this. Get that right. You own it.

Posted by: federalist | Feb 25, 2009 1:58:06 PM

"The Republican Party gives lip service to gun rights. They had a President and they had control of both houses of Congress and did nothing."

I do not think many Republicans have problems with many of our federal gun laws (they did allow the assault weapons ban to expire and fought any attempts to extend it...). It is the draconian measures at local levels that are the biggest problem and the Republicans did try to repeal DC's gun ban from what I recall.

Posted by: Anonymiss | Feb 25, 2009 2:56:52 PM

The statute in question (prohibition of possession of weapons by persons convicted of domestic violence) was passed in 1996. While Bill Clinton was President then, the Republicans controlled Congress, having gained control of Congress in the 1994 election. 1996 was also an election year. It is doubtful that anyone of either party wanted to go home facing an election being on record of supporting allowing wife beaters to have guns.

Posted by: Zack | Feb 26, 2009 12:55:47 PM

If you read the 4th circuit documents, they never considered the issue of extrinsic evidence that Hayes raised in his appeal, stating is was unneccesaary since he basicly won them over with the language aspect of his defense.

Scotus stated that a person must be convicted beyond a reasonable doubt in the Hayes decision...blah blah. Now, do you get in front of a jury and re-try the person trying to prove that he did in fact assault his ex-wife? That sounds like unfairly tainting the jury to me.

Now that this case has been remanded, does the 4th circuit get to turn around and acquit yet again for the extrinsic information part of it all? Or for trying the person a second time and contaminating the jury for DV when it is a possesion case 20 years later?

When is the constitutional issues ever going to be raised - feds do not have police powers, ex post facto, 2A "shall not be infringed", so called "commerce", etc

Posted by: Mike | Feb 28, 2009 4:59:53 AM

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