Chris Knox - Part 4

An End to the Lautenberg Amendment?

Thursday, January 7th, 2010 at 4:44 PM

An End to the Lautenberg Amendment?
By Jeff Knox

FirearmsCoalition.org

Manassas, VA – -(AmmoLand.com)- The Federal Court of Appeals for the 7th Circuit recently accepted the Second Amendment as valid grounds for reversing a conviction under the infamous Lautenberg Amendment, barring possession of firearms from anyone ever convicted of a misdemeanor crime of domestic violence.

That’s good news, but don’t fire up the band just yet.

The actual conclusion of the 7th Circuit panel was that prosecutors had failed to effectively argue that Lautenberg does not violate the Second Amendment – which is a far cry from declaring the law unconstitutional and throwing the case out. The court reversed the guilty verdict and sent the case back to the lower court to give federal prosecutors another chance to build a better case. Included in the decision are rather detailed instructions explaining what arguments the prosecution needs to make if they wish to prevail. Like a child’s game, the court said, “You forgot to say ‘Mother may I’ so try it again – and this time say ‘Mother may I.’” If prosecutors carefully apply the lessons laid out in the 7th Circuit’s order, the case should result in another conviction that would then be upheld on appeal. On the other hand, the court also dropped a hint or two for the defense.

The case against defendant Steven Skoien, who was sentenced to probation in 2006 for misdemeanor domestic violence, is pretty straightforward. After being alerted by the game department that Skoien had purchased a deer tag, police went to his home where, in his pickup parked out front, they found a freshly killed deer, a shotgun, and ammunition. Skoien admitted that he had been hunting that morning.

In court Skoien argued that he only possessed the gun for hunting and that denying him the right to arms was a violation of the Second Amendment.

Prosecutors pointed to a comment made in the Heller opinion to the effect that the decision “should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill.” They argued that this should be recognized to include persons prohibited under Lautenberg, and that the government had a compelling need to restrict guns from domestic violence abusers because such abuse is an indicator for future acts of violence.

The three-judge panel of the 7th Circuit rightly pointed out that a person convicted of a domestic violence misdemeanor is not a felon, and concluded that the government’s arguments supporting the assertion of “compelling need” simply weren’t good enough. The panel also concluded though that since the defendant claimed to only possess the shotgun for the purpose of hunting and did not assert a self-defense argument, his situation did not warrant the full protection of the Second Amendment.

The important issues in this case all hinge on two problematic positions taken by the panel:

That the extraneous comments made in Heller are binding.
That guns possessed for self-defense deserve more protection from the courts than those involving guns possessed for other purposes.

There are three standards a court uses in judging arguments, referred to as levels of scrutiny. The highest and most rigorous of the three is “strict scrutiny” - applied to issues of fundamental rights – wherein prosecutors must demonstrate a compelling need to interfere with a person’s rights, with minimal interference to meet that compelling need, and prove that the governments action effectively does meet the stated need. “Intermediate scrutiny” is applied when there is only limited involvement of civil rights and no direct impact on any fundamental rights. The government is given much more leeway under this standard. The third, “rational basis” is applied when neither civil nor fundamental rights are at issue. Under this standard the government has little requirement to prove need or effect.

In the Skoien case, the 7th Circuit concluded that intermediate scrutiny was appropriate because self-defense was not raised as an issue. They also suggested that if the issue of self-defense had been raised, the court would have to move up to a strict scrutiny standard for reviewing the case. This conclusion begs anyone wishing to use the Second Amendment as a legal defense to be sure to invoke the right to arms in a self-defense context and suggests that the court has injected the words “for self defense” into the Second Amendment.

If the remanded case is not dismissed, prosecutors will no doubt build a case tailored to the court’s instructions for stricter scrutiny, and the defense will assert that Skoien also possessed the shotgun for self-defense purposes. Meanwhile, it is to be hoped that the Supreme Court will have rendered a favorable decision in the McDonald v. Chicago case and that that decision will clear up some of the ambiguities surrounding Heller.

About:
The Firearms Coalition is a loose-knit coalition of individual Second Amendment activists, clubs and civil rights organizations. Founded by Neal Knox in 1984, the organization provides support to grassroots activists in the form of education, analysis of current issues, and with a historical perspective of the gun rights movement. The Firearms Coalition is a project of Neal Knox Associates, Manassas, VA. Visit: www.FirearmsCoalition.org.

Tags: Chris knox, Firearms Coalition, Jeff Knox, Lautenberg Amendment

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Lessons from the Gun Banning Dark Side

Thursday, December 31st, 2009 at 10:42 AM

Lessons from the Gun Banning Dark Side
By Jeff Knox

FirearmsCoalition.org

Manassas, VA --(AmmoLand.com)- Mike Bloomberg and his group of gun grabbers, Mayors Against Illegal Guns (MAIG), caused quite a stir in the gun rights community recently when they released a poll declaring that gun owners and NRA members support the group’s gun control agenda.

The poll was conducted by Frank Lutz’s company “Word Doctors.” The media gleefully reported the poll as indisputable fact while NRA and others cried “Foul”, pointing out flaws in the pollster’s methodology and challenging the results.

The flaws and distortions are undoubtedly real, but it is important for rights activists to carefully examine this poll to find data we can use to help our cause. In spite of its flaws, this poll demonstrates a serious failure on the part of rights groups and supporters in efforts to educate our less activist brethren. We’re not preaching to the choir enough and not getting the right messages through to them.

This fact is clearly shown in the results for poll question number 25 which asked, “How familiar would you say you are with the Supreme Court case Heller v. DC?”. I would venture that the vast majority of people reading this column would respond “Very familiar” or at least “Somewhat familiar.”

Since the Heller decision was without a doubt the biggest gun rights story of the past 2 decades, with extensive coverage in both the gun press and the general media, I would further expect my readers to predict that most average gun owners would be at least “Somewhat familiar” with the case. The responses in the MAIG poll fell well short of such expectations. Among those who identified themselves as NRA members, only 17% said they were “Very familiar” with the Heller case. Non-NRA gun owners responded with a dismal 3% saying “Very familiar.” Only 34% of NRA members and 10% of non-NRA gun owners claimed to be “Somewhat familiar” with 19% and 17% respectively saying they were “Only a little familiar” with the case. A full 30% of NRA respondents and 70% of non-NRA respondents said that they were “Not familiar at all” with the case.

Even with skewing, distortion, and “cherry-picking” participants, these results should be disturbing to the gun rights community. The results attributed to NRA members are about what I would have expected from the general gun owning population and the answers posted by non-NRA gun owners are worse than I would have expected from a random sample of citizens who don’t own guns. Those numbers are actually almost exactly the inverse of what I would expect the answers would be from our regular readers.

What this demonstrates is the mistake of assuming that our friends, family and fellow citizens are as interested, concerned, and knowledgeable as we are. We must always remember that we (those of us who pay attention to politics and rights issues) are freaks.

Most people – even gun owners – are much more interested in what’s on TV than what the Supreme Court has to say about the Second Amendment and we need to act accordingly. We must find the best words to frame each of our issues in the most understandable way and get that message in front of as many people as possible as frequently as possible.

No organization has the wherewithal to do the job all by themselves. It must be a group effort and you are the most important part of the group because you have more influence with those around you than any organization does. One of the ways this particular poll was skewed was by disproportionately loading the sample with females. While there are many female gun owners and activists, there is nothing close to the almost 50/50 split depicted in the polling sample and women tend to be less involved in gun rights matters. That’s not sexism, just fact.

The Executive Director of our organization is a female and she agrees with my contention. What the numbers suggest is that the polling was conducted during the day with participants qualifying based on their household gun ownership as much as their individual gun ownership, and that an important target audience in need of education is within arms reach while we’re sleeping.

The pollster who developed this poll for MAIG, Frank Luntz, is on the record saying that it is easy to get a person to endorse conflicting ideas by asking the right questions and using the right words. He demonstrated that with this poll, but he also demonstrated that we, the engaged rights activists, need to be doing a better job educating those around us about the critical issues of the day.

Perhaps this poll can be used as a teaching tool. I am going to post the entire poll along with some alternate questions and some correct answers to help with that idea. Look for it at www.FirearmsCoalition.org and see if you can use it to start an important conversation with someone close to you.