An End to the Lautenberg Amendment?

An End to the Lautenberg Amendment?
By Jeff Knox

FirearmsCoalition.org
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:

  1. That the extraneous comments made in Heller are binding.
  2. 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.

  • 73 thoughts on “An End to the Lautenberg Amendment?

    1. So am I to understand that a dv offender is banned for life of owning a fire arm… Hmmmm so I guess guns are the only way a person can harm another.. That’s ridiculous.. Next they will say you can’t play air soft or paintball.. So what I’m trying to say is that if a person is violent and accused of dv I’m sure there is another way to inflict harm.. So the law is seriously flawed.. I don’t believe a lifetime ban is fair… 5-10 years if none at all… Believe me.. That law is stopping no one from future offences.. A gun is just an extention of ones hand.. Might as well go back a thousand years and start taking off peoples hands. Sorry for the ranting but the lifetime ban is a serious violation of my civil rights…not to mention I pay my taxes like any other citizen but with less rights… Thanks for reading hope some or all of you agree…

    2. Our new President Trump will Pardon all the federal gun law infringements going on that violates the second amendment civil rights. Keep in mind that previous Presidents played nasty politics behind the door movements to take our rights away. One of the worst of all civil right infringement created and should not be allowed in the 1990’s is your Lautenberg Law. The involved groups will pay for the consequences violating peoples rights and Trump i’m sure will agree to that. We will all be restored and right to bear arms for all law abiding people against low lifers who commit crimes on us.

    3. Here are some links I’ve found online who has a very clear understanding how the “Anti-Second Amendment Groups” who took part of the Lautenberg Federal Gun Law continue to violate, unconstitutional of our civil rights for more than 20 years!!!. The liberals like to do dirty tricks on us and keep getting away and they will ruin our freedom. Trump and NRA, take a look and protect the people’s civil rights now. ENOUGH is ENOUGH!!!!!!!!!!!!! Posted on 12.02.2016

      http://www.civilrightstaskforce.info/id39.htm

      http://www.civilrightstaskforce.info/id26.htm

    4. That’s a federal gun law put in place that violates the second amendment rights. The four founding fathers says no government can override right to bear arms. It’s a right and not a privilege. Congress, legislators and Libby’s are responsible with infringing and violating your civil rights. Trump, AG and new team of pro gun will make 2A Great Again and pound the Feds for scrutiny of the peoples civil rights. Do your research and use various keywords to dig up the new changes coming soon in 2017. Second amendment will be restored with anti federal gun ban laws. I’ve found everything I’ve mention above online. http://www.nysun.com/editorials/2nd-amendment-mandate/89814/

    5. That’s a federal gun law put in place that violates the second amendment rights. The four founding fathers says no government can override right to bear arms. It’s a right and not a privilege. Congress, legislators and Libby’s are responsible with infringing and violating your civil rights. Trump, AG and new team of pro gun will make 2A Great Again and pound the Feds for scrutiny of the peoples civil rights. Do your research and use various keywords to dig up the new changes coming soon in 2017. Second amendment will be restored with anti federal gun ban laws. I’ve found everything I’ve mention above online. http://www.nysun.com/editorials/2nd-amendment-mandate/89814/

    6. That’s a federal gun law put in place that violates the second amendment rights. The four founding fathers says no government can override right to bear arms. It’s a right and not a privilege. Congress, legislators and Libby’s are responsible with infringing and violating your civil rights. Trump, AG and new team of pro gun will make 2A Great Again and pound the Feds for scrutiny of the peoples civil rights. Do your research and use various keywords to dig up the new changes coming soon in 2017. Second amendment will be restored with anti federal gun ban laws. I’ve found everything I’ve mention above online. http://www.nysun.com/editorials/2nd-amendment-mandate/89814/

    7. the 2nd Amendment says the government shall not infringe on the right to bear arms. this law defeats my constitutional right.i paid for my crime and did not use a gun and have never owned a gun. LIBERAL judges suck ass.

    8. Good day to all. It’s Sept 11, 2016. In 2005, when I was 17, my dad had moved back with us (mom, sister, me) after one year apart. It was an emotional time. I really never got along with him. Anyhow, both my parents started ganging up on me like they always did, my mother is tough so she would get in my face so I pushed her face, went to my room, took out a knife, stood at my doorway and told them to leave me alone. I then closed the door. My little sister got nervous and called the police. While I was cuffed sitting down on my bed, the two officers in charge just stood there deciding whether to take me or not. Well, they did and I did like 4 months in a youth prison and like 3 months in a half -way house with all older men who were twice my age. For this I got a 2ND Degree Threatening and Disorderly Contact on my record that has been rejected by the Connecticut Board of Pardons to be expunged in 2013. Since 2005 I’ve been lost, no direction, no real options or hope for a real career and good pay. I was honor role all the way until New Britain High School where I got rebellious and dropped out as a sophomore. Even if I went to college, I couldn’t live my dreams to serve with a Police Department and military. I had to settle for dead end jobs and have been struggling ever since. Even when I let the Board of Pardons know that I was married and had children and have hit hard times because of this road block, they still rejected my request for my pardon and wrote back that not enough time has passed since the conviction. I did plead guilty to not risk doing one whole year. My question is where is the logic in not giving a young man with potential, goals and a family a fresh start in his adult hood? What would the state loose by setting me free so I won’t have use $12, 000.00 a year in food stamps because I don’t qualify for a real job with good pay because of my record? Truth is I’ve felt like a prisoner all these years and not a full citizen. I’ve felt less than human and have questioned my existence many times. Earlier in 2005 I did fight my dad because he grabbed my neck when I cursed at him. I was given a misdemeanor charge that was expunged. This factor was used against me. How does leaving a young man with a family frustrated better a community and save money? Truth is this is used to keep communities down and is cruel and unusual. I’m living in the community anyways, I’m here and want to serve, how are you trying to reduce crime and repeat offending again? This law has to end. Too many youths are going to waste and are funding the criminal justice system. This law is clearly against sound logic and is counter productive. In New Britain, CT there was a man who stranggled his wife to death then tied a sweater around her neck to make sure she would stay deaf when he left. Mind you, this was a felon who had committed murder 15 years prior to this incident and was banned from owning a firearm. Hands are considered a weapon by police and if you are caught by them strangling a person they have a right to use lethal force. Anything can be used to murder. On self-defense, I had to live in public housing for two years which was hell. Been threatened by gangs, was told I was not going to be killed yet for walking at night by a teenager with a pistol in his waist. I have no mental defect and have not been arrested as an adult or been a danger to society. I don’t smoke, drink or party and enjoy a quite family life. Found out there is hope in real estate investing. Still can get in shape, eat good, go to college and learn to fight. All will keep me at 100%. Board wants me to do community service. In my town of New Britain, CT there was a guy who started stabbing another guy while doing community service. CS does not change anyone and once you have done time after the crime you have paid your debt to society for that crime. I have a lengthy resume that includes being trusted to watch over various facilities as a security officer including banks and medical laboratories and protecting VIPs. If police and military are notorious for domestic abuse and still get to serve than what’s the difference between me and them as far as qualifying to own a firearm? My wife has a clean record and is working towards becoming a Police Officer and can own firearms. Guess where she’s going to keep them, that’s right, in a safe right next to my bed. Who do you think is going to respond to a break in during the middle of the night with a firearm? It sure ain’t my wife. Better that they shoot towards me and not my family. Fuck prison. You see, this Lautenberg act makes crminals. I no longer fear prison like I used to. Being desperate and in agony to live a real life for years takes its toll. I’m not doing nor plan on doing anything illegal because I who I am but my family and I have been homeless twice and the jobs I qualify for that pay more I can’t get because some law makers who would bail out their children in a heartbeat thinks I’m property and can be kept down. If people with domestic charges are more than likely to repeat then I think keeping them from quality employment because of no pardon which creates financial problems is not the way to end fights in the home. Domestic cases are a personal problem and should only be interceded only when someone’s life really is in danger, not to burn someone like woman like to do. These problems can be handled by mandatory couples counseling and at maximum 2 years ban from owning a firearm if you really think a cool off period is needed. Truth is my second amendment right has been kept from me even when I don’t live with my parents anymore and I’ve been a legal adult for over a decade with no legal issues. Reason has to be put into play here and my right to own a firearm has to be reinstated. I no longer want to be kept from living the life and career I have dreamed of. I simply want career options, self defense means and to serve my country in some capacity. I firmly believe every citizen should serve at 18 like in Israel. Is there anyone willing to let reason and common sense have her stay? If not give me a good reason why I should burn for the rest of my life. To crimials it’s medals to have a record, to me it’s sores and weights I’ve been carrying for years. This effects me so much because I’ve always had the desire, ability and mind to serve to such a degree that I no longer produce tears for this. Being born and raised to be morally straight and an American citizen, it burns me to not live fully the full right to life, liberty and the pursuit to happiness. Also, this is cruel and unusual punishment. Knowing I’ve been a model citizen all these years and knowing my dreams and family situation you still want me to burn puts the state in a weird position because it’s costing them money and for other people even more when they go back to prison because of lack of employment in society and a booming profit margin in the street. Not me, I’ll keep fighting until I’m heard by an official body. This nonsense has to stop. The Lautenberg act is doing more harm then good. It just seems the best way in this feminist media and society. If you’re asking if I repent, the answer is yes. I’ve lost some of my best years to misery but I still fight on. I only had to apologize once and that was to my family. I paid my debt with prison time and taxes which I’m apparently still good for. My family forgave me the same day I offended. This problem has destroyed my family and we no longer speak. My parents just want to see me prosper. Why doesn’t the state think or feel the same way? The Lautenberg act just made a one time altercation worse and brought down hopes and sacrifice. I wish to move on with my life with at least my 2ND Amendment rights fully restored. No felonies ever or arrest since then, no history of mental illness, patriotic, loyal, dedicated and ready for a second chance to serve. [email protected]

    9. Yes , the narrative is the same over and over and over. This wonderful UNCONSTITUTIONAL VAWA which corrupts the police , courts and DA’s with huge amounts of FEDERAL CASH ! FEDERAL CASH from GRANTS FROM THE VAWA. They don’t give a #hit about your rights, they don’t go to jail on minor DV charges WE DO ! Corrupt lawyer and judges and DA’s laugh at how stupid we are, and they are the criminals in suits.

    10. I am a convicted felon who has had his civil and firearm rights restored and I am denied gun rights for a misdemeanor dv how does this make sense to anybody I can restore on Felons bt not a misdemeanor

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