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.

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jorge schweizer
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jorge schweizer

Lautenberg amendment is a direct violation of the Second (right to keep and bear arms) and Eighth amendment (life sentence for a misdemeanor is cruel and unusual punishment ) of the constitution of the United Sated of America, therefore an unconstitutional law)

Randy
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Randy

As many of you I find myself looking for a way to restore my rights to bare arms. I plead no contest to Domestic Battery back in 2001, with no idea this would follow me for life. I was in the Military at the time, and in fact remained in the Military for 23 years where I served as an Aviation Ordnanceman. Funny enough, my Job was to handle all types of weapons from hand guns to large bombs and missiles. For 23 years I served to protect the freedoms of this land, and at times even carried weapons and… Read more »

Bill
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Bill

Amen brother. My ex girlfriend got me on a bogus dv charge in ’01. I honestly didn’t have a clue and married the bitch. Bore 4 children, that may or may not be mine. After a divorce, the truth is showing through. I can only pray Trump does something about this mess. Obummer let convicted felons out of prison,there’s hope.

Carl Mazzanobile
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Carl Mazzanobile

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… Read more »

Red State for Trump
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Red State for Trump

Trump, here’s more civil rights being violated and infringed by federal and state gun laws. http://www.gunlaws.com/misgb.htm

Don't Thread on me
Guest
Don't Thread on me

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… Read more »

Pro-2ALife
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Pro-2ALife

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

Mike
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Mike

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… Read more »

Civil rights
Guest
Civil rights

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… Read more »

Backoffmycivilrights
Guest
Backoffmycivilrights

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… Read more »

donnie newell
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donnie newell

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.

Sergio Roman
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Sergio Roman

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… Read more »

David
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David

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.

James
Guest
James

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