Going Back to the Supreme Court on Guns

This is not a Second Amendment case, but rather a case to determine the scope of the Lautenberg Amendment, codified in 18 USC 922(g)(9). This is not a challenge to Lautenberg facially, on Second Amendment grounds. The 6th Circuit opinion can be found here.

The government’s argument is unpersuasive. It overlooks the nearly identical language of § 921(a)(33)(A) and 18 U.S.C. §§ 16(a) and 924(e)(2)(B)(i). Section 921(a)(33)(A)(ii) defines a “misdemeanor crime of domestic violence” as a crime that “has, as an element, the use or attempted use of physical force,” against a victim with whom the defendant shares a domestic relationship.[1] Like § 921(a)(33)(A)(ii), §§ 16(a) and 924(e)(2)(B)(i) use the phrase “physical force” to define “crime of violence” and “violent felony,” respectively. Section 16(a) defines a “crime of violence” in part as “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” For its part, § 924(e)(2)(B)(i) defines a “violent felony” in part as a crime “that has as an element the use, attempted use, or threatened use of physical force.” By defining a “misdemeanor crime of domestic violence” to require “the use or attempted use of physical force,” § 921(a)(33)(A)(ii) drops the reference to “threatened use” from §§ 16(a) and 924(e)(2)(B)(i) but otherwise tracks the language of §§ 16(a) and 924(e)(2)(B)(i). The provisions’ similarity supports the inference that Congress intended them to capture offenses criminalizing identical degrees of force.

Tennessee statute, under which Castleman was convicted, includes the mere threat of force, and other force that would not necessarily be violent. Noting:

In so holding, the Court interpreted the “physical force” requirement in that statute as “violent force … capable of causing physical pain or injury to another person” and “strong physical force.” Id. at 1271.

It’ll be interesting to see what the Supreme Court does with this, but it would reserve the circuit split on this matter either way. I tend to agree with the 6th Circuit opinion here:

The government resists this conclusion by emphasizing § 922(g)(9)’s reference to “misdemeanor” offenses, but the government asks us to put more weight on the term “misdemeanor” than Congress meant the term to bear. Had Congress intended the word “misdemeanor” to have the effect suggested by the government, then Congress would have had no need to modify “misdemeanor” with the phrase “crime of violence.” Congress could simply have prohibited any person convicted of a “misdemeanor domestic assault or battery offense” from possessing a firearm. It chose not to do so.

Yet the government’s position is that any misdemeanor assault conviction against a domestic partner is a disabling offense. If the Supreme Court upholds the sixth circuit opinion here, it would essentially mean there would have to be a finding that there was actual violence, or attempted violence involved. There mere conviction would not be sufficient unless the statute itself involved those things.

7 thoughts on “Going Back to the Supreme Court on Guns”

  1. Of course, we all know that the spin on this one will be predictable: “Oh you gun nuts want to let more domestic abusers have their guns!”

    Never mind the legal wrangling that the term “abuse” has undergone in the courts. The end result of all thesedefinitions, of course, would be giving the benefit of the doubt to the state to remove firearms “as a precaution” as the default option.

  2. The whole idea of a misdeamenour crime of violence being a disqualifier is stupid. If the crime is bad enough to be a disqualifer, then it needs to be a felony with the accompanying penalties…

  3. How would this affect, if it would at all, boilerplate restraining orders that currently enforce disability on mere allegations absent concrete evidence, or on an alleged verbal ‘threat’ of violence?

    Anyone wish to speculate?

    1. Not at all, because that’s not at issue. This is a case about statutory interpretation.

      There is also case law in the 5th Circuit that restraining orders pass constitutional muster, but barely so. I don’t agree with that ruling (it was Emerson, the case which originally started the ball rolling to bring us Heller).

  4. Here is the question before the Supreme Court

    DECISION BELOW: 695 F.3d 582
    CERT. GRANTED 10/1/2013
    Section 922(g)(9) of Title 18, United States Code, makes it a crime for any person convicted of a “misdemeanor crime of domestic violence” to possess a firearm. The phrase “misdemeanor crime of domestic violence” is defined to include any federal, state, or tribal misdemeanor offense, committed by a person with a specified domestic relationship to the victim, that “has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon.” 18 U.S.C. 921(a)(33)(A).

    The question presented is:

    Whether respondent’s Tennessee conviction for misdemeanor domestic assault by intentionally or knowingly causing bodily injury to the mother of his child qualifies as a conviction for a “misdemeanor crime of domestic violence.”

    I’d suggest that their decision is going to very much address the split, not preserve it. I suspect it will also have the potential to go further and perhaps address the issue of whether a constitutional right can be denied for a mere misdemeanor conviction. It certainly could do that, and we probably will get plenty of dicta in the opinion touching on that. But the opinion iself likely wouldn’t address that directly.

    It will still be interesting to watch.

  5. Whatever happened to x post facto laws however that’s spelled. That was a law didn’t have any affect on people that commited a crime Before it was a crime. I seem to remember getting a whole lot of history about that 50 years ago when I was in school.

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