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Domestic Violence Prohibition Upheld

A federal court has ruled that the prohibition on domestic violence misdemeanants from keeping and bearing arms is constitutional. This is not surprising, since the Supreme Court has basically signals to the lower courts that they are free to ignore Heller and McDonald, and that they need not fear having their ruling, however awful, overturned. Here’s things I wish courts would consider:

  • There’s a difference in degree of infringement between someone who already owns firearms and being forced to give them up, and someone who does not own firearms not being able to buy any for the duration of the prohibition.
  • While the Lautenberg Amendment may not be an ex post facto law, the application of the prohibition on anyone who was ever convicted is a violation of their right to due process under the 5th and 14th Amendments.
  • Lifetime prohibitions triggered by misdemeanor convictions should always be regarded with considerable suspicion in regards to constitutionality.
  • Prohibitions should be something applied by judges as part of a sentence. The retroactive application of a prohibition is always a due process violation, even for felons. A defendant has to know which of his rights are on the line at the time he is accused and tried.

I don’t think applying a temporary prohibition to misdemeanants is on its face unconstitutional, but Lautenberg probably should be.

12 Responses to “Domestic Violence Prohibition Upheld”

  1. Patrick Henry, the 2nd says:

    Courts not doing their job, its nothing out of the ordinary. I’m hopeful with Trump appointing many judges, we’ll start to get things going our way.

  2. AnOregonian says:

    Given SCOTUS’ ruling in Voisine, I’m not all that surprised at a lower court going the way they did.

  3. Ian Argent says:

    In this case, that he pled out after Lautenberg amendment was passed negated the Ex Post Facto angle.

    This is the “violent-crime” equivalent of “getting Capone for taxes”; in that it’s (allegedly) very hard to “get” someone for a violent felony in domestic violence cases, so clearly we have to prevent misdemeanants from getting guns because they are clearly really felons we couldn’t convict…

    (Needs more sarcasm?)

    • Sebastian says:

      There was a case where it was challenged as an ex post facto law and lost. If they had made it a crime for anyone to have possessed a firearm retroactively, it would have been, but the crime didn’t start until the law went into effect.

      But post Heller, it ought to be a due process violation to do what they did.

  4. Richard says:

    Add to this the trend to define everything as domestic violence. I once read all of the arrest reports for my town for a couple of years. The most common “domestic violence” incident type was snatching a cell phone and throwing it on the ground.

  5. Zermoid says:

    Unless there is a hearing and real evidence including eye witnesses other than the accuser, and in this day of cell phones I’d even say photo or video evidence, to prove guilt beyond a doubt it should not negate any Constitutional Rights, let alone one that specifically says it Shall Not Be Infringed!
    It’s Ludacris that a single person’s word can get your rights stripped away. No matter what the alleged reason!
    My brother in law had this happen to him, his ex wife beat herself up and then filled a PFA against him, screwing him outta his guns.
    Found this out later when his daughter, who witnessed it, asked him “why did Mommy beat herself up?”

    • Sebastian says:

      I get what you’re saying, but that problem is bigger than the gun issue. We don’t really have a justice system.

      • Zermoid says:

        Yeah, after dealing with the “justice” system personally a couple times I know it’s broken, whatever happened to “Innocent til proven guilty”? It’s more like your guilty until you can prove beyond a doubt that you’re innocent!

  6. dustydog says:

    No crime with a statute of limitations should have a forever punishment.

    If the state can change the punishment, then the accused should be able to withdraw his no contest plea. If the state can’t get the ex-wife to come testify, or has lost any of the evidence since 1997, the case should be thrown out.

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