Lautenberg Amendment amended...aka...stupidity strikes again...

[liliysdad]

In the process of hiring a new reserve officer, we ran into a bit of a snafu. Seems now that the Lautenberg Ammendment, which bars those individuals who have been convicted of Domestic Abuse, or are the defendants in a protective order stemming from such abuse, has been expanded.

The Legislature, or maybe the BATFE, who knows, has now added language that basically states that ANY crime of assualt, be it VERBAL or physical, when involving a person living with you, or that has lived with you, now bars you from owning any firearm.

What this means is, you can go out and beat the hell out a guy you never met, and you can own a gun. However, the minute you yell at your wife, and she feels the need to file charges, you cannot.

Needless to say, the reserve officer we wanted to employ in unemployable, because he cannot carry a firearm. A man, who many, many years ago got into an argument, and was charged with simple assault, cannot legally volunteer his time to enforce the law. I know cops with DUIs, etc....

For some reason, this really irks me. I have been absolutely livid ever since I found this out. Seems to me that those cops that seem to think that we are above the rest seem to have gotten their just desserts. However, it is the ones who actually want to do a good job that are reaping their return.

It really is Us versus Them, but not in the traditional sense.

[azurefly]

It stands to reason that a couple should make sure to discuss the serious ramifications (for either of them) of calling the police because one pissed off the other.

These days, those ramifications can be FAR MORE than either person bargained for, even the one who called the cops. It seems common for a woman to call the cops on her man "to scare him" and then she's shocked when the police tell her that they are obligated by law to cart him away. Then the family's finances are DEVASTATED by the costs of defending against the stupidass charge that results. And then the guy has a REAL reason to justify smacking her upside the head. I have heard of too many cases where the woman was just being a smartass and trying to show how empowered she was, and really all she showed was how SHORT-SIGHTED she was.

There is a major major abomination on the books in the form of the Lautenberg law. There is no way in hell a person should be able to lose his right to own guns because of a non-felony. And there is no possible justification for taking away a person's right to own guns for a crime committed DECADES BEFORE the new punishment was put on the books. Yes, that's right, the Lautenberg law says that if you were EVER found guilty (pleaded guilty, adjudicated guilty, etc. -- even "pleaded guilty in one's own best interest" simply because the cost of defense would have ruined you at the time) you lose your gun rights.

So a person may have pleaded guilty to something inane way back when, because the penalty was nothing too severe. NOW, that guilty plea haunts him because RETROACTIVELY (how the HELL can that be constitutional?!) he has "agreed" to the NEW penalty.


-azurefly

[azurefly]

I know cops with DUIs, etc....

IMO, you should not know cops with DUIs. You should know EX-cops with DUIs.

Any cop who is entrusted to enforce the law should not be allowed to stand as an example of a law enforcer who doesn't have to obey it.

A pilot can get a DUI in a car and will lose his PILOT'S license.
And a cop gets a DUI and he gets to remain a COP, enforcing the LAW? With a GUN? That's just wrong.

-azurefly

[liliysdad]

Calm down my friend. Not once did I say I agree that those with DUIs should still be cops. If the crime occurred while an officer of the law, on duty or off, they should be fired, period. I do know a few that have gotten DUIs while officers, and are still employed. These few cops are cops I do not associate with.

However, I do know a few who got a DUI 10, maybe 12 years before becoming an officer. This, I have no problem with, as long as it can reasonably be described as a mistake, and not a recurring issue.

[azurefly]

Agreed.


And I was not saying that I believed you thought they should not be fired. I recognize that you had made no value judgment on that subject whatsoever. I understood you to be using that as a counterpoint against the idea that the same guy could be fired if he had ever had a charge because his wife bitched that he had yelled at her.

-azurefly

[liliysdad]

Understood....

Sorry, been a long day.

[tyme]

So a person may have pleaded guilty to something inane way back when, because the penalty was nothing too severe. NOW, that guilty plea haunts him because RETROACTIVELY (how the HELL can that be constitutional?!) he has "agreed" to the NEW penalty.

That is an interesting line of thought.

The question is, what is an ex-post-facto law, really?

The textbook definition is that an ex-post-facto law creates a new crime or increases punishment for an action taking place before the law's passage. Someone who did something completely legal last year suddenly and unavoidably becomes a criminal. Or, someone who did something illegal and was convicted for it last year is suddenly forced to suffer a heavier punishment than what was specified in the sentence.

What is not clear is whether a law that creates a new crime -- based on some action that is voluntary in the present, like owning a gun -- applying only to a class of individuals who were convicted of something in the past, is a retroactive increase in punishment.

I suspect the legal establishment would say that, since a government seems to have the power to prohibit law-abiding citizens from possessing certain items, prohibiting certain types of criminals from possessing certain items is A-OK.

It's not, of course, but unless we completely reject the idea that the government can ban possession of arbitrary objects, I don't know how to argue that the Lautenberg Amendment represents an ex-post-facto law simply because of its de-facto increase in punishment for certain misdemeanors.

After all, if banning people from owning guns is a "punishment," couldn't all gun bans could be challenged and overturned on the sole basis that they're due-process violations? Since that would never work in today's legal system, I have to conclude that the Lautenberg Amendment does not represent additional punishment for domestic assault convicts.


I think this exposes a glaring flaw in the concept of a ban on ex-post-facto changes in punishment. The objective is to prevent congress from making punishments harsher for people who have already committed a crime. But Congress already does, daily and on a massive scale, make life harder for everyone, regardless of whether we've been convicted of any crime.

[paratrooper]

See if you can get the case re-opened . Have the person drop the charges if possible and the judge can reverse the decision .

[liliysdad]

The only way, in Oklahoma, thanks to victimless prosecution laws, that the issue can be resolved, is through an pardon or expungement. The pardon is in the process, and I am currently typing a letter of character for this man.

[BillCA]

tyme, nicely written, but flawed IMHO.

Due to the Lautenberg act, I will now insist on a jury trial for any misdemeanor charge I am accused of committing. The rationale is very simple, really.

With the passage of this law, the government can, at some future date, broaden the scope of civil disabilities for a misdemeanor crime and impose those disabilities years or decades after the fact.

For example, if you are accused of a misdemeanor crime, let's call it an open container of beer in a public park, in 2006 you know what the implications are for pleading guilty or "no-contest". The penalty is likely either a fine or some day(s) in the local gray-bar hotel if you can't pay the fine. Such a crime is rarely a disqualification from employment if that's your only offense, nor does it prohibit you from exercising any of your Constitutional rights.

But the concept of this law now allows the government - Federal or state - to decide at a later date that the punishment should now also include a new prohibition where none existed before -- the disability to "X". Where "X" may be anything from;
a) being in a public park after sundown
b) the ability to drive a motor vehicle (or certain classes of them)
c) the right to certain employment (e.g. work in any liquor selling business)
d) owning or possessing a firearm
e) purchasing alcholic beverages

Thus, when confronted with a "mere" misdemeanor charge, how can you make an informed decsion about a plea when the government can change the rules later? Thus, you insist on a full-blown jury trial for the most trivial of crimes (at great expense to the government) with a lawyer to put on a defense (at great expense to yourself). Should the court refuse a jury trial over such a "minor" crime and later that crime be "enhanced" through a Lautenberg-like scheme, one can make an argument of the court denying you proper due-process.

By the way, I'm completely against the idea of persons under a restraining order being forced to give up their firearms. On the surface it seems like a good idea in some cases. But how long will it be before anti-gun judges figure out that they can issue some kind of blanket restraining order ("keep away from bars, liquor stores, the city mayor and this judge") after convicting you of the most trivial of offenses?

[Powderman]

It's even worse than that!

If a person is charged and convicted of ANY of the following:

Assault (any degree)
Domestic Violence
Criminal Trespass
Has been the subject of an Order of Protection in any degree,
Is the current subject of a Restraining Order

you are prohibited from buying firearms, and the ones you have can be taken away.

Don't believe me?

Go look on the newest iterations of ATF Form 4473.

[liliysdad]

I, as an officer, am completely against the loss of firearms rights for ANY misdemeanor, and am still on the fence for most felonies. For a protective order, its a frigging civil issue, loss of rights should not come into play.

[tyme]

Originally Posted by BillCA

... but flawed...

I don't see anything in your post I disagree with. Where did I go wrong?

With the passage of this law, the government can, at some future date, broaden the scope of civil disabilities for a misdemeanor crime and impose those disabilities years or decades after the fact.

I agree, but it's worse than that.

The government regularly broadens the scope of civil disabilities for the population at large. The game seems to be avoiding getting dinged for any crimes. The winners don't win anything. Instead, they're last in line to lose their rights.

[Scott Conklin]

Has been the subject of an Order of Protection in any degree

Wait...

As in a "restraining order"? Everyone who has been thru a divorce has had one of these. I've had one of these. It's boilerplate. Meaningless but common. Please tell me you are talking about something more impressive.

[Edward429451]

It really is Us versus Them, but not in the traditional sense.

Those are respectable words coming from a LEO.

The them being the Administration, powers that be, gubmint. I started realizing that awhile back also. You LEO's are just trying to do a job and do it well.

Sorry your friend couldn't get hired on.

[FirstFreedom]

Say WHAT??? The BATF has no authority to expand Lautenburg. They'd be acting ultra vires. This is so wrong. There's at least 3 different bases for why this is unconstitutional:

1. Violative of the 2A.
2. BATFE exceeding its authority, and
3. Ex Post Facto, as tyme points out.

Holy crap, if you can be banned from owning a gun due to a trespass conviction (which is often a municipal ticket like public drunk), then that just added millions upon millions of mostly law abiding citizens to the barred list.

If this is true, the NRA and GOA and everyone else had better get off their duffs and file some court challenges!

This is why I likely will never get married or even shack up.

[Edward429451]

Why wouldn't this new amendment be considered double jeapordy?

[OBIWAN]

"You should know EX-cops with DUIs"

Thank you Mr. Absolute

I know it is hard to imagine that a cop could be human...but they all are

So a cop has to lose his job...flat out, no appeal, no mitigating factors, etc???

MY company has a drug/alcohol policy that list dismissal as one of the options.

But it allows for the person to continue employment with counseling and future random checks.

Because people make mistakes

For the recoed, I am not a cop, but while I feel that police officers should be held to a (slightly) higher standard, I am always a little put off by absolutes in the law.

Much like the amendment we are discussing...no gray area and no wiggle room is bad

[bdarin]

How about this one....
BUFFALO, N.Y. (AP) -- A Buffalo police officer, arrested for the fourth time during his 20-year career, is accused of pointing his handgun at his girlfriend's head during a domestic argument on a street corner.

Police say 47-year-old Officer Antonio Roman, of the Traffic Unit, was charged with second-degree menacing after the confrontation early Tuesday morning with his 40-year-old girlfriend, also a Buffalo police officer. Both were off-duty.

Roman appeared Wednesday in handcuffs in a Buffalo City Court's domestic violence courtroom and was being held in Erie County Holding Center on five thousand dollars bail. He has been suspended with pay and faces departmental charges.

In April 1990, he was arrested for allegedly beating his wife before they were divorced. However, the misdemeanor assault charge
was later dropped.

On May 1, 1998, Roman's brother, Erie County Sheriff's Deputy Juan Roman, shot and killed his estranged wife, Norma, and shot a teacher's aide in School 18 on Hampshire Street. Juan Roman is
serving a prison term of 20 years to life.

[rangermonroe]

http://www.peaceathomeshelter.org/DV...lautenberg.pdf

The provisions of the Lautenberg Amendment have been challenged on three
primary grounds. First, opponents of the law maintain that it violates the Commerce
Clause by classifying as a federal offense activity that does not have an effect on
interstate commerce as required by the Supreme Court’s decision in United States v.
Lopez. It has also been argued that the law violates the Equal Protection Clause by
punishing domestic violence misdemeanors more harshly than other misdemeanor
offenses, by punishing misdemeanor but not felony offenses, and by excluding law
enforcement officers convicted of misdemeanor domestic violence offenses from the
public interest exception of 18 U.S.C. §925(a)(1). Furthermore, the law has been
attacked as a violation of the Ex Post Facto Clause on the basis that it prohibits the
possession of a firearm by a domestic violence misdemeanant even if the predicate
offense occurred prior to its enactment.
Reviewing courts have rejected these challenges to the Lautenberg Amendment,
determining that its provisions fall within acceptable constitutional parameters.
Regarding the Commerce Clause, courts have held that the law contains an express
jurisdictional element requiring a finding that the firearm in question was possessed
in or affecting commerce, or was received after having been shipped or transported
in interstate or foreign commerce, obviating the concerns at issue in United States v.
Lopez. Equal Protection Clause challenges have been rejected upon the determination
that Congress rationally concluded that misdemeanor domestic violence offenders
should not possess firearms. Finally, the courts have held that the law does not violate
the Ex Post Facto Clause in that it prohibits post-enactment possession and does not
criminalize conduct occurring before its enactment.

[OBIWAN]

Bdarin

He should not be running around loose.....forget about being a cop

[Evil Monkey]

Oh my god! Is this serious!?!? Lautenberg act? What? I can't believe what I'm seeing!!!!!

If some one just says something threatening like "I'll get you." That's it, they are no longer able to legally own guns!? What kind of crap is this? Isn't this going to get repealed? Why isn't there an outcry over it?

It's crap like this that makes me say forget starting with the 22lr, go for the ak and fal.

I swear this is crazy, unbelievable. I don't know what to else to say without getting banned.

Seriously, how does one get crap like this repealed? Petitions? Voting? What?

[Sulaco2]

Has to be a conviction in regards to a domestic violence EM. You can tresspass to your hearts content, just not on your ex wifes property or when there is a protection/no contact order in place......

[Evil Monkey]

Has to be a conviction in regards to a domestic violence EM.

THAT...is the problem. Me and my bro live in the same house. Obviously, we get mad at each other and stuff and we say stuff that we don't mean, like "Man, I'll kill you, you punk!". If I say something like that and he calls the cops, am I done for!?!?! This is insane!

I was reading some stuff on the Lautenberg act and there was a story about how a woman lightly pushed her husband out from a door way and now she can't own guns anymore!!!!!!

I have freakin' seen it all.

I'm NEVER going to get married. Not after learning about the Lautenberg act. Hell no.

What about if a woman just lives with you but you are not married to her. You get into a dispute with her and stuff goes down, does the Lautenberg act still apply?

[jkkimberfan]

Why doesn't the NRA start an anti Lautenberg movement and prompt its members to do whatever possible to rid Congress of this jerk Lautenberg and anyone else who voted for his over reaching law?