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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

jay

Hello folks – Merry Christmas! Well I recently discovered during my research that the 9th District Circuit of Appeals Court has ruled in Officer Shireys’ Favor!!! The EVIL anti – American opposition tried desperately to ban the results from being publically published as to keep US in the dark, but the Judge in the case refused!!! BING (B238355)! This is EXACTLY what most of US have experienced with this EVIL j-w gun control “law”! This states that officer Shirey of the Los Angeles Sheriffs dept. Sued the Labor board and WON over Lautenberg MCDV (Unconstitutional = Ex Post Facto) infringement… Read more »

frost jack

AAARRGG!!! Rights come from God not men! Publius Huldal

Gerald Chesnut

Imagine a 50 something military veteran misdemeanor domestic violence convictee who can go to the gun range with his 20 something daughters but can’t legally target practice with them nor even by example show them the proper way to hold the gun, tyranny? injustice? both?

Gerald Chesnut

Some who have a domestic violence conviction have in fact been domestic violence abused by the very same “victim” that brought their conviction and more often. The “victim” has gun rights and the convictee doesn’t. Its especially hard when the act that brought the first conviction was actually self defense but an unscrupulous appointed attorney pushed for a plea bargain, cause it was easier on him. Want the case number just ask??

Eric

The deceit goes even deeper. You can get domestic violence charges much like I did, not only with a spouse or partner, but with a parent. My father was an abusive alcoholic who regularly hit me, closed fisted, until I defended myself at the age of 18. Plead no contest to DV in 1990, and 6 years later I lose my gun rights without a judge, jury or even a letter from the court. My father and I developed a great relationship in the last years of his life, and he tried to give me guns from his collection before… Read more »

Joe

Is it tru that if you were not represented by a lawyer
And waved your rightes you might have a chance to restore
Your gun rights. I dnt know how tru it is but if someone knows about
This please post

Dan

Hi everyone. Time to write your elected Congressman, and Senators. The squeaky wheel gets greased. Copy and paste this letter. Not many know about this law. Time for it to go away. I request you to pass legislation to Repeal the Lautenberg Amendment (section section 658 of Public Law 104-208 ) that Bill Clinton signed into law back in 1996. It serves no purpose other than to create very thin and questionable criteria to permanently ban citizens from their "Right to Keep and Bear Arms". Soldiers, police officers, and anyone who has been judged to have committed a misdemeanor crime… Read more »

jay

David, Fed. Gov. overrides State laws so even an expungement/set aside granted by a superior court judge will NOT help. The Feds are going to block it! And now with the new NICS system, instant background checks are mandatory. You can however obtain info from "DOJ" on how to appeal it but more likely than not you wont and then the Feds will notify local police about you and they may pay you a visit in the middle of the nite. Its really pretty sad! I have a feeling we the people will have our day in court and win,… Read more »

David

Greg DeBacker on December 9, 2012 at 2:02 PM said:
http://www.atf.gov/firearms/faq/misdemeanor-domes

Greg, what is your take on this answer? I have a disorderly conduct/dv from 25 years ago. I have petitioned and had the conviction set aside/expunged in the state of Az.

Bill Baker

to J : Most states allow even felonies to be expunged (removed) from your record if you have been a good boy for the last 10 years or so….get a lawyer.

j

I was 19 and she wasn't even my girlfriend just a female friend she was drunk and got upset and called the cops, I am now 34 and I still can't get one.

Bryan

I was 21 when I got into an argument with my drunk girl friend. She attacked me and all I did was hold her down long enough to tell her to stop and let me leave. The police arrested me and charged me with Domestic Battery! I tried to tell them what had happened, that she was drunk and trying to scratch my face (as she had already done prior to this) and wouldn't let me leave but they sided with the girl as they often do. Because of this incident many many years ago I cannot own a gun.… Read more »

Jay

Justin to answer your Q – Federal Gov. controls/overides State laws! Its communism! The Feds dont let States enforce their own laws! Originally yes a Set aside/expungement 1203.4 would restore gun rights after a 10yr. restriction mandated by the State but the Feds stepped in and said NO! Felons can get their rights back from a Gov. pardon but you cant get a Gov. pardon for a misdemeanor and a 1203.4, thanks to the Feds, it isn't valid. There are three requirements any which one must be met to qualify as banned. You can find them out upon further research.… Read more »

Justin

So from what i am reading if i understand this right if i have a DV on my record in MA and its more than 15 years old I can have my record sealed and my rights will be restored??? Has anyone done this and is that true??

btw, it was something my ex's fling said to charge me with to get back at me. Now i am paying for my past association with a crazy ex… I think that is the main reason i have no trust in women or the judicial system.

Greg DeBacker

http://searchjustice.usdoj.gov/search?q=Lautenber

From the Government DOJ website:

Greg DeBacker

http://www.atf.gov/firearms/faq/misdemeanor-domes

According to the Government ATF website listed above:

Q: Is an individual who has been pardoned, or whose conviction was expunged or set aside, or whose civil rights have been restored, considered convicted of a misdemeanor crime of domestic violence?

No, as long as the pardon, expungement, or restoration does not expressly provide that the person may not ship, transport, possess, or receive firearms.

Adam

You people that support this stupid amendment are clueless. There are many people like me that are not violent. We got into a relationship with a crazy person. In my case, my ex was a meth user and attacked me after I brought her daughter to school for no reason. I say on her and held her arms to settle her down while she continued biting me and kicking me. I got up when she finally calmed down and was heading to the phone to call the police. She ripped the phone cord out of the wall. I went to… Read more »

Chris Gibson

I too have checked every possible way to restore my 2nd Amendment rights and there is only one way that can happen. That is if the Lautenberg Amendment is done away with. Richard posted a link to a petition to repeal the Amendment. I am asking all my friends, family, and co-workers to go sign it. I am also posting the link on every related blog that I can find. If we all do the same, there may be a chance.

Godfrey

Like many others, in 1997 I got into a VERBAL argument with my ex. Police were called, both of us were arrested for Misdemeanor Domestic Disorderly Conduct. Haven't gotten into any trouble since then. 15 years later, denied on purchasing a 22 caliber weapon. I've checked all the avenues I can think of. Unfortunately for misdemeanors, there is no actions we can take to get our rights restored. Even looked into getting a Pardon, but upon looking into it, this is what I found: "The pardon process has been suspended indefinitely." If anyone has any new information on this subject,… Read more »

richard

petition to remove this amendment https://petitions.whitehouse.gov/petition/remove-

Tim

I was convicted in FL in 1985, and like others. Wife was in the court room and I thought she was going to drop charges like some other cases before mine did. She punched my in the mouth and I slapped her and now, almost 30 years later, I cannot legally own any kind of firearm. The only trouble I've ever been, other than this, has been two speeding tickets. FL doesn't allow expungements for cases that are convicted. I've remarried and have two wonderful kids and a wonderful wife, and retired from a decorated military career. I didn't have… Read more »

stacy galloway

Is their any update to this stupid lautenberg amendmendment this year. Took a plea in jan 96 while station in Alaska before this amendment was even thought of and now after 16 years I cannot have a license. Talking about ex post facto, and on top of that Alaska don't have a expundgement or seal record so I'm screwed all around unless this law get changed. After 16 years never even had a parking ticket.

Gary

This amendment also affects those convicted of misdemeanor assault charges. I got into a fight with a complete stranger 40 years ago. I went to court ant the ripe old age of 18, I didn't think I even needed a lawyer. Needless to say, I was found guilty, fined a small fine and went on my way. I served in the military, married, raised a family… Never had any problems with domestic violence, but I am now being told that I cannot own any firearms. I applied for a handgun permit in NC and was denied because of the assault… Read more »

Mark Richard Watson

FELONY DOMESTIC VIOLENCE EX-OFFENDERS CAN GET THEIR RIGHTS RESTORED ~ Misdemeanor domestic violence ex-offenders CANNOT. Felons can get full pardons and their civil rights returned to them. There is no pardon process for misdemeanors. Remind them to repeal the "Lautenberg Amendment"

Petition here:
http://www.thepetitionsite.com/1/restore-second-a

Sivispace

Actually the extraneous comments in the decision are not binding on anyone. They are what are known by attorneys to be "dicta." Dicta is not binding because it is simply the court dithering until they make a decision on the case before it. I completely agree that the Second Amendment isn't about hunting. It is about the security of a free state, personal defense and opposing tyrany. And I'm here to tell ya there's plenty of that these days.

Glenda Miller

Does anyone see the relevance of this –
http://www.csmonitor.com/USA/Justice/2010/0601/Re

It seems like the sex offenders got a break, but the "looked crosseyed at my wife/girlfriend crowd" didn't.

not guilty

i was charge with dv when i was 19 prior to that never been introuble since then now im 28 and wnt to be a arm security guard but branded a criminal for life and im not i dont gang bang or do drugs i had one bad day i nve caused bodily injury i pleaded guilty to get out of jail i was scared and nvr informed that i would loose my rights for life while felons could get there right to bare arms in ten year after .its not fair im a law abiding citizen and i love… Read more »

s steele

Re: Mark Devaux's comments on "ISREAL"

"…I no longer wonder at the diversity of people who have had problems with those people existing."

It's good that an illiterate and ignorant XXX like you can't have firearms.

To bad you're allowed to have kids.

Dumb XXX like you making comments like that make it worse for actual human beings that have been screwed by Lautenberg.

Mike Lowrie

I was convicted of DV, to wit pulling on my ex's arm until it hurt, in 1996. Suddenly in 1997, when they passed Lautenberg, I became a criminal. After the law was passed and for the rest of my life. For a misdemeanor? My crime had nothing to do with guns. Lautenberg is a SOB for sneaking this "rider bill" at the end of a large bill. Because he knew it wouldn't be able to pass on it's own merit. So much so, many states like Texas has made it a point to override on the state level. Texas says,… Read more »

Jerry C

It is NOT illegal to own/use an Airgun because they are not "firearms". They have been developed to a fine art in Germany and elsewhere, due to its restrictive firearms laws. I became involved with airguns while in the military. There are many types and they have been used to kill game as large as Bison. An excellent revolver for self defense is the Evanix AR6. Check it out the Evanix pistol, a six shot, can fire a 28 grain "pellet" at 700 feet per second muzzle velocity! It'll go through a 1×4" board like butter and hit a dime… Read more »

Mr Jackson

Sense the average citizen are not legal professionals, It should be "LAW" the Justice System explain the charges against you and what rights are at stake during the procedures.

JA

I pled no contest in Texas to this in 2003. My wife, kids and I were living with my mother (hard times) and we were about to move out. She forced the issue early and I grabbed her by the neck (no choking), and screamed at her. The cops came and charged me with misdemeanor assault family violence. I didn’t have the money so I was given a court appointed attorney. I didn't plea down and I talked to him for all of 5 minutes on the preliminary hearing. On the day I went back to see the judge my… Read more »

Mark Devaux

Read the "Other Lautenberg ammendmant" This guy made a career of running game around the constitution, His only real fans live in ISREAL, I no longer wonder at the diversity of people who have had problems with thoes people existing.

Mark Devaux

I heard they finalized it yesterday, skoien lost so did the rest of us watching this outcome. Hey the only brightspot is this, freedom is just another word for nothing left to loose. I do not suppose the "legal" owners and firearms will be the ones left around for the endgame.

Dominic

Im sorry to sound rather blind and not being able to fully understand this article so please bare with me. I was convicted of a domestic violence charge over a year and a half ago and found out after my probation that i was unable to bare firearms. Now if i understand this article correctly could this put an end to the amendment and allow me to possess my firearms again or is this something that is highly unlikely to happen? Again i appoligize for not being a little more intelligent about these things.

KJ

Let's imagine this, a person (gender un-important) is convicted of a misdemeanor DV violation in court with out the use of any weapon. At a later date this same person, is pushed to limit again, grabs a 10 inch kitchen knife and kills their spouse/etc. What did the Lautenberg Ammendment accomplish? Nothing at all. Now lets say you have a minor and their friends that hate their parents/step-parents/gaurdians beccause these same adults try to do the right thing by ensureing that the minor goes to school, doesn't get involved in drugs/alcohol, doesn't get involved in crimal activities, and this same… Read more »

Michael Anthony Perry

Yo Please Check this out, I Really Enjoy and Agreed with your Comment. I could Not agree More Just listen to what happened to me By the Way Thank you for your Service and Sacrifices you have had to make Army Strong hooah I Am 33 Years Old My Full Name Is Michael Anthony Perry And Yes I Am A Faithfull Believer In Jesus Christ and I Pass … and No I was Not Arrested for Domestic Battery-HA But had to serve Probation for 8 months in Hammond Indiana through the court house and had to go to court and… Read more »

paul berio

so Iv'e been convicted of a future crime? based onthis statement.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. I didn't realize that this is legal. here is my story and there are… Read more »