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The Second Amendment and People Convicted of Domestic Violence Misdemeanors:

From U.S. v. Booker (D. Me. Aug. 11) (Woodcock, J.):

Heller left unanswered a significant question: The level of scrutiny the Court must apply to the restriction on Mr. Booker's individual right to bear arms. As Heller notes, the "traditionally expressed levels" are "strict scrutiny, intermediate scrutiny, and rational basis." The Heller majority acknowledged that it did not establish "a level of scrutiny for evaluating Second Amendment restrictions," but it left some hints. First, the Heller majority rejected Justice Breyer's "interest-balancing" approach, observing that it knew "no other enumerated constitutional right whose core protection has been subjected to a freestanding 'interest-balancing' approach." Second, the majority conceded that the District of Columbia law would pass rational-basis scrutiny and, since it ruled the District's complete ban on handguns unconstitutional, the necessary implication is that the rational-basis test is not applicable. The remaining options are strict and intermediate scrutiny.

Strict scrutiny is generally reserved for statutory restrictions that affect the exercise of certain "fundamental right[s]." The individual right to bear arms might well be a fundamental right, the restriction of which requires strict scrutiny. This conclusion is supported by the placement of Second Amendment within the Bill of Rights alongside this Country's most precious freedoms. However, as Justice Breyer points out, Heller expressly approves some statutory restrictions -- the types of people who may exercise this freedom; the places where this freedom may be exercised; and, the ability to buy and sell the objects of this freedom -- "whose constitutionality under a strict scrutiny standard would be far from clear." "Intermediate scrutiny is used, for discrimination based on gender and for discrimination against nonmarital children." Heller itself concedes that it does not "clarify the entire field." It consciously left the appropriate level of scrutiny for another day.

Rather than tackle this complex and unanswered question, the Court starts from a different place. Heller teaches that even though the Second Amendment guarantees an individual right to bear arms, it is "not unlimited." Heller states that "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." A useful approach is to ask whether a statutory prohibition against the possession of firearms by felons and the mentally ill is similar enough to the statutory prohibition against the possession of firearms by persons convicted of the misdemeanor crime of domestic violence to justify its inclusion in the list of "longstanding prohibitions" that survive Second Amendment scrutiny.

The Court concludes it does. To reach this conclusion, the Court starts by comparing the constitutionally-sanctioned prohibition against firearm possession by felons with the prohibition against persons convicted of misdemeanor crimes of domestic violence. A person can, of course, be convicted of a felony which had nothing to do with physical violence and which would not necessarily predict future misuse of a firearm. Nevertheless, the law forbids any convicted felon, regardless of the nature of the felony, from possessing firearms and Heller constitutionally sanctioned this broad prohibition. [Footnote: The same point is generally applicable to the mentally ill....]

By contrast, the predicate offense under which Mr. Booker was convicted is defined in 18 U.S.C. § 922(g)(9) as requiring "the use or attempted use of physical force" by someone who is a spouse, parent, or guardian of the victim or someone in a position similar to a spouse, parent, or guardian of the victim. [Footnote: Mr. Booker emphasizes that an individual may be convicted of a misdemeanor crime of domestic violence in Maine by reckless behavior; he argues that there is not a significant enough government interest to deprive him of his Second Amendment right if he acted only recklessly. However, the felony convictions to which Mr. Booker's predicate offence is being compared run the gamut of the mens rea spectrum, and a domestic violence offender's mens rea does not impact the Court's analysis under Heller.] If anything, as a predictor of firearm misuse, the definitional net cast by § 922(g)(9) is tighter than the net cast by § 922(g)(1). Turning to the governmental interest, the manifest need to protect the victims of domestic violence and to keep guns from the hands of the people who perpetrate such acts is well-documented and requires no further elaboration.

Based on the absence of a meaningful distinction between felons and persons convicted of crimes of domestic violence as predictors of firearm violence, the critical nature of the governmental interest, and the definitional tailoring of the statute, the Court concludes that persons who have been convicted of a misdemeanor crime of domestic violence must be added to the list of "felons and the mentally ill" against whom the "longstanding prohibitions on the possession of firearms" survive Second Amendment scrutiny.

Not an unanswerable argument, of course, but at least a plausible and relatively detailed attempt to confront the underlying question, unlike some of the other early post-Heller district court decisions (see, for instance, here).

SDProsecutor:
I often wondered, while taking misdemeanor battery and DV pleas, why the CA Change of Plea form specifically required written acknowledgement of a 4th waiver, but did not mention the "2nd waiver" that resulted from the plea.

And now, there is a least a colorable claim that absent a specific acknowledgement of this waiver of a fundamental right, Courts should allow these pleas to be withdawn.
8.14.2008 1:41pm
mad the swine (mail):
"Turning to the governmental interest, the manifest need to protect the victims of domestic violence and to keep guns from the hands of the people who perpetrate such acts is well-documented and requires no further elaboration."

'Requires no further elaboration' is a phrase used by lawyers when they can't, in fact, justify a claim but don't want to admit it. There is no manifest need to disarm domestic violence perpetrators because domestic violence, by definition, does not pose a threat to society as a whole. "[T]he absence of a meaningful distinction between felons and persons convicted of crimes of domestic violence as predictors of firearm violence" means nothing; under the Constitution, the government isn't allowed to punish people by demographic based on what they statistically might do in the future.

I'd also like to point out that a man can be charged with a 'domestic violence misdemeanor' for as little as raising his voice to an overly litigious ex.
8.14.2008 1:51pm
tdsj:
link here

http://www.med.uscourts.gov/Opinions/Woodcock/
2008/JAW_08112008_1-08cr19_USA_V_BOOKER.pdf
8.14.2008 2:02pm
Eugene Volokh (www):
Mad the Swine: I should note that, to qualify as a crime of domestic violence for the federal gun disability, the state law must have "as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon" (which presumably had to have been proven beyond a reasonable doubt). So while I realize the legal system can get these things wrong, in principle simply raising one's voice -- without attempted use of physical force -- doesn't qualify.

On the other hand, the disability for people who are under domestic protective orders is more troubling. First, it need only include a finding that the target "represents a credible threat to the physical safety of such intimate partner or child" or an explicit prohibition on "the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury." A court could have such an explicit prohibition with no finding of violence at all. Moreover, the restraining order doesn't require a criminal trial or proof beyond a reasonable doubt, so there's a greater risk that it will be issued when the target actually didn't engage in violence or threatened violence.
8.14.2008 2:03pm
guntoter:
It's galling that the court completely ignored the argument that arming known abusers will result in LESS domestic violence. You can shut a woman up much faster by pointing a loaded, cocked weapon at her than by popping her one.
8.14.2008 2:13pm
Kazinski:
I find the case very troubling. There has always been a very broad line between felonies and misdemeanors. Now the courts are going to blur that line. If the domestic violence was serious enough to justify the loss of a constitutional right, shouldn't have been charged as felony? Isn't that the whole point of having the distinction between the two in the first place?
8.14.2008 2:13pm
guntoter:
"If the domestic violence was serious enough to justify the loss of a constitutional right, shouldn't have been charged as felony? Isn't that the whole point of having the distinction between the two in the first place?"

No.
8.14.2008 2:20pm
Roger Schlafly (www):
The US Supreme Court is currently hearing a case on this issue. US v Hayes.
8.14.2008 2:24pm
hattio1:
Kazinski,
That's the issue. The domestic violence doesn't have to be "serious enough to be charged as a felony" to lose gun rights.
8.14.2008 2:31pm
Dilan Esper (mail) (www):
There is no manifest need to disarm domestic violence perpetrators because domestic violence, by definition, does not pose a threat to society as a whole.

That's a repugnant argument, though. It's one thing to say, as Kazinksi does upthread, that it blurs a historical line between felons and misdemeanants (though I would note to Kazinski that usually that distinction turns on nothing more than the length of the sentence or whether it is served in jail or a penitentiary). But domestic violence seems to me to be plenty dangerous to the victim. If people in this position should retain their right to keep and bear arms, it can't be on the basis that domestic violence is not that dangerous; it would have to be on the basis that the countervailing interests are too important and aren't outweighed or because historically people in this position kept their right to keep and bear arms.

One other thing that is troublesome about this issue-- historically husbands were legally privileged to inflict domestic violence on their wives. That was certainly the case when the 2nd Amendment was adopted. If that historical tradition is one of the reasons why domestic violence is punished as a felony rather than a misdemeanor, it seems to me that's a powerful argument in favor of taking a living constitutionalist rather than originalist approach to this issue, because otherwise, the Second Amendment is ratifying a historical tradition that society has gone on to reject and which conflicts with fundamental principles of gender equality that we now hold dear.
8.14.2008 2:38pm
Dilan Esper (mail) (www):
If that historical tradition is one of the reasons why domestic violence is punished as a felony rather than a misdemeanor

I meant the opposite, if that historical tradition is one of the reasons why domestic violence is punished as a misdemeanor rather than a felony.

Preview is my friend.
8.14.2008 2:40pm
Adam J:
"There is no manifest need to disarm domestic violence perpetrators because domestic violence, by definition, does not pose a threat to society as a whole." That's like saying theft doesn't pose a threat to society as a whole because poor people have nothing to take. Or that rape doesn't pose a threat to society because only women are raped (not entirely true, but my point stands). Or pedophila isn't a threat to society, since it is only a threat to children. Seriously man, the idea society can't be harmed by crimes that are only perpetrated against a subgroup of society is pure bigotry.
8.14.2008 4:09pm
Adam J:
Kazinski- "There has always been a very broad line between felonies and misdemeanors." So you are advocating a bright-line rule between felonies and misdemeanors? The difference between the two is often little more how one state characterizes the crime. A better argument is that if a Court finds on a factual analysis of the crime that some misdemeanors should cause you to lose second amendment right, then Courts should do the same with felonies, and some felonies shouldn't be worthy of losing your gun rights.
8.14.2008 4:13pm
zippypinhead:
On the other hand, the disability for people who are under domestic protective orders is more troubling. First, it need only include a finding that the target "represents a credible threat to the physical safety of such intimate partner or child" or an explicit prohibition on "the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury." A court could have such an explicit prohibition with no finding of violence at all. Moreover, the restraining order doesn't require a criminal trial or proof beyond a reasonable doubt, so there's a greater risk that it will be issued when the target actually didn't engage in violence or threatened violence.
Although if one wants to look at the bright side (to the extent there is one), at least 922(g)(8), unlike several other prohibited person categories, only applies while the protective order is actually in effect. Once the order has been lifted or expires, one's status as a prohibited person dissolves. Thus, one could argue that it in fact imposes significantly less of a burden than several of the other categories, including 922(g)(4) ("has been adjudicated as a mental defective or who has been committed to a mental institution"), which is by its terms presumptively a lifetime ban but also suffers from some of the due process and burden of proof criticisms you make.

Ironically, after the Virginia Tech massacre, 922(g)(4) probably has more popular support than any other statutory ground for firearms disqualification.
8.14.2008 4:16pm
hattio1:
AdamJ,
I think Kazinski's point was not that the domestic violence perpetrator only targets one class of people, but rather that he or she only targets one person, their spouse or partner. Let me hasten to add I don't agree with Kazinski even if that rather questionable assumption were true.
8.14.2008 4:23pm
Adam J:
hattio1- It was Mad the Swine's point, not Kazinski's. I doubt Kazinski would appreciate you attributing Swine's comments to him.

And I should also add that the perpetrators of many crimes only target one person. Plus I think most domestic violence perpetrators end up having more then one spouse or partner at various points in their life- they tend to not be particularly good with relationships.
8.14.2008 4:38pm
jxr (mail):
"nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill"

Why don't Scalia's words just mean what he said?

Am I wrong to assume that "our opinon" means "this decision here", or was he just opining on what the majority thought, i.e. dicta, at most?

Could it mean that with some other case such doubt might be cast, and they were in Heller not addressing.

I know Helmke is selling the idea that laws regarding felon possession have been declare perfectly constitutinoal. I think that maybe they just haven't addressed them.
8.14.2008 5:33pm
hattio1:
AdamJ,
Right, sorry. Not Kazinski, Mad the Swine. Please, forgive Kazinskil.
8.14.2008 5:47pm
Johnnie (mail) (www):
Note that the exemptions mentioned in Heller referred to felons and the mentally ill. Neither being accused of a misdemeanor or convicted of a misdemeanor equal a felony. Since Heller specifically mentioned felony, misdemeanor is excluded as a compeling government interest in restricting rights under the 2nd Amendment.
8.14.2008 6:06pm
Dilan Esper (mail) (www):
I know Helmke is selling the idea that laws regarding felon possession have been declare perfectly constitutinoal. I think that maybe they just haven't addressed them.

You aren't wrong, but you need to understand that District Courts don't have a lot of time to engage in deep, persuasive opinion-writing that breaks new ground on controversial areas of the law. They have a big trial docket and have to move on quickly from task to task, and are very reliant on the briefing of counsel.

So when you are asking a District Court to parse a Supreme Court opinion and divine what standard the Supremes really want to apply to felons, that's really not something that's in most District Judges' toolkits.

Again, you aren't wrong about what Scalia said. But the Courts of Appeals or the Supreme Court are going to have to give the guidance on those issues.
8.14.2008 6:15pm
Duffy Pratt (mail):

If anything, as a predictor of firearm misuse, the definitional net cast by § 922(g)(9) is tighter than the net cast by § 922(g)(1).


How does the Court know this? Was there any evidence or testimony on this, or is it just the sort of legislative factfinding that a court does before it makes its legislative pronouncements? Is is simply safe to assume that people who engage in one type of violence are more likely to engage in other types? That a person who gets into fistfights is more likely to shoot someone? It's possible that this is, in fact, true. But it could also be false, and its not necessarily the sort of thing that I would want to decide by deductive reasoning. Human motivations tend to be far more complicated than this Court assumes.

From a legal standpoint, the legislating that Scalia did with the "felon and lunatic" dicta is really bad. This court, like the others, takes the dicta and turns it into basically the most influential holding of Heller. As a result, the shape of the Second Amendment is largely being determined by an advisory opinion, which was sloppy at best, and nothing more than legislating from the bench. It was the worst sort of legislation, too, since it was the result of horse-trading to buy a single vote.
8.14.2008 6:33pm
Adam J:
Johnnie - "Since Heller specifically mentioned felony, misdemeanor is excluded as a compeling government interest in restricting rights under the 2nd Amendment." A statutory law might be interpreted that way, but certainly not an opinion.
8.14.2008 6:59pm
Kazinski:
My point is shouldn't there be clear standards either by statute or the courts on when Constitutional rights can be denied? Is some court going to decide that reckless driving has a sufficient nexus with reckless gun use that reckless drivers lose their gun, voting, and 4th amendment rights? If there is no clear bright line then there will be just a hodge podge of regulations.

Tradtionally that bright line has been a felony conviction. I can't think of any misdemeanor that will lose you your right to vote. And if there was I am sure it would be ruled unconstitutional.

If it is a serious enough crime for you to lose a constitutional right then it should be serious enough for you to be charged with a felony.
8.14.2008 7:12pm
Kazinski:
Adam J, Hattio1,

I have nothing against swine. And I have to say I agree completely with Mad the Swine's point:

"[T]he absence of a meaningful distinction between felons and persons convicted of crimes of domestic violence as predictors of firearm violence" means nothing; under the Constitution, the government isn't allowed to punish people by demographic based on what they statistically might do in the future.

Do the courts just do a statistical anaylsis to find out which crimes are most predictive of future gun violence, and remove constitutional rights based on that? I predict you will find that first degree murder will be less associated with future gun crimes than driving without a license. Is that then going to be the standard?
8.14.2008 7:22pm
Brett Bellmore:
I think the key point here is that the Supreme court has now acknowledged the 2nd amendment as a fundamental right, though it was previously treated by the circuits as a mere privilege. Can anyone cite any other fundamental right which can be completely lost on the basis of a misdemeanor conviction? Let alone on the basis of an uncontested charge long before losing that right would have been the consequence of conviction?

They've got to start treating it like a RIGHT. This is not how rights are treated.
8.14.2008 8:50pm
Doc W (mail):
Well, the sane way to deal with the whole issue is to incorporate loss of gun rights into the punishment of violent crimes. In the same way that the judge can impose probation or 1-6 months or a $500 fine or whatever, the judge could impose a certain term of loss of gun rights. I'm raising a legislative issue, of course.

There is something pretty ridiculous about the idea that someone who slaps his wife or kicks her husband in the groin at the age of 21 is barred from possessing weapons of self-defense at the age of 71. For that matter, does it make sense that someone who robs a liquor store at 21 can't possess self-defense weapons after 50 subsequent years of exemplary living?

Meanwhile, let's hope the Supremes get--and take--the opportunity to sort some of this stuff out in a reasonable way, one that honors 2A as protecting the serious individual right that they said it does.
8.14.2008 9:41pm
ReaderY:
I have to say, the right to beat ones wife was historically protected by the common law. Scratch out the word "abortion" and write in the word "wife-beating" in crayon and the key logical rationales of many of the abortion cases remain true. In both cases, abolition began in the late 19th century. In both cases, it was abolished largely because society began to think of it as barbaric and immoral. The laws cover far more than the minimum necessary to address safety, they are clearly based on a belief that it is wrong, they go far beyond what can be justified on non-moral, objective rational secular criteria like affect on economic productivity or hospital utilization.

Violence is as much part of what people have historically and traditionally done in private as sex. By regulating the domestic violence, the state undertook to regulate private family life in a highly obtrusive way. I think it can do this. I don't think the constitution permanently enshrines whatever notions of privacy existed in "this Nation's history and tradition," and that that wife-beating is a demonstrable part of tradition is a good reason why I think the various Supreme Court decisions claiming to rely on it are nothing more than bunk. Nor do I think it gives judges authority to strike down intrusive laws that they don't happen to like but to uphold objectively equally intrusive laws that they do.

It seems to me the history of domestic violence is a good reason why the Court's privacy jurisprudence is fundamentally flawed.

A majority of the court's preference may think that the temporary physical sting and emotional harm of being physically struck by a blow leaving no permanent injury is more serious than the physical sickness and emothonal harm of knowing that ones child is going to be killed. But there is no basis whatsoever for claiming this personal preference of some 5 justices has anything whatsoever to do with the Constitution of the United States. Nor is there any reason to believe a different weighting by a legislature would have any less objective justification or validity.
8.15.2008 1:02am
Kazinski:
Dilan,
I don't think that "living constitution" means what you think it means:

If that historical tradition is one of the reasons why domestic violence is punished as a [misdemeanor] rather than a [felony], it seems to me that's a powerful argument in favor of taking a living constitutionalist rather than originalist approach to this issue...

The issue of whether domestic violence is felony is entirely under the perview of the legislatures of the United States. There is no constitutional issue at all. We don't need the nine men who have been granted all wisdom and the power to right all wrongs to get involved.

That is why originalism is so important, when things change the legislatures and the people can react and change existing law. And that has happened without a single supreme court case to decide that wife beating should be outlawed.

Besides I don't think even the most expansive supreme court imaginable would take it upon themselves to reclass a set of misdemeanors to felonies.
8.15.2008 3:39am
L. Halbrook:
FYI - this case is on Westlaw: 2008 WL 3411793
8.15.2008 8:30am
Sebastian (mail) (www):
There is no manifest need to disarm domestic violence perpetrators because domestic violence, by definition, does not pose a threat to society as a whole.

I don't know. It seems to be a reasonable argument that if someone is convicted of wife beating, even if it doesn't rise to the level of felonious assault, that perhaps they might not think too much of perpetrating violence against society at large. Also, are battered women not part of society and deserving of societal protection?

I'm with Eugene on the DV issue, in that I'm far more troubled by the restraining order provision. My main objection to the Lautenberg Amendment is that it applied retroactively to convictions prior to the enactment of the act. I'm troubled by the idea that Congress can add additional sentence ex post facto. There are more than a few people out there who plead to stuff they shouldn't have years ago, and are now, unknowingly, prohibited persons.
8.15.2008 11:38am
Brett Bellmore:

There are more than a few people out there who plead to stuff they shouldn't have years ago,


The problem is, they made perfectly sensible decisions at the time, based on the information they had. Heck, today people routinely plead guilty to minor traffic infractions they might potentially be able to beat: Are we going to say they shouldn't because in 2025 the Finklestien act is going to deprive them of the right to free travel based on those infractions?

The real problem here is the pretense that this bait and switch doesn't really violate the ex post facto clause. That claim wouldn't pass the giggle test if we were talking about a civil liberty the judiciary generally approves of.
8.15.2008 12:54pm
ParatrooperJJ (mail):
It is also clearly an ex post facto law. Convictions from twenty years ago have as much weight and ones after the law was passed.
8.15.2008 2:00pm
Brett:
This strikes me as more of the same "reasoning" we've seen over and over again since Heller: handwave at the Heller dicta without undertaking any real analysis, and reach the conclusion that you would have reached anyway.
8.15.2008 3:16pm
Greg Sun (mail):
It seems clear that after Heller it is definitivly ex post facto. As now a MDV before 1996 results in a loss of civil rights. This loss is directly related to a prior conviction.
8.15.2008 3:19pm
Adam J:
Kazinski- Swine did make a decent point there, I guess I stopped reading after he said domestic abuse doesn't harm society. I'm simply saying that the felony/misdemeanor tends to be an arbitrary line that legislatures don't invest alot of time in. If a legislature explicitly states that this felony/misdemeanor distinction determines whether second amendment rights then a judge should obviously be bound by it. But if a legislature doesn't make this determination I don't see why a judge shouldn't be allowed determine whether the fella gets to keep his second amendment rights.

Also, regarding Swine's point, I think that the government is punishing him on what he has done, not on what he might do.
8.15.2008 4:41pm
Kazinski:
Adam J:

If a legislature explicitly states that this felony/misdemeanor distinction determines whether second amendment rights...

I thought the whole point of constitutional rights was to put them beyond the power of the legislature to revoke or deny them. Would you give the legislature that much leeway in determining voting rights? The common law has always put the felon's rights at risk, but rarely and only temporarily does a misdemeanor cause the loss of fundamental rights.
8.15.2008 5:59pm
andrewdb:
To add a little more context to this, the prohibition from misdemeanor DV convictions applies so broadly as to prevent cops and soldiers from possessing weapons in the course of their professional duties.

The 9th Cir. has recently ruled that the California expungement statute does not meet the Federal requirements and so the conviction under California law is forever - at least for the moment - see _Jennings v. Mukasey_ (9th Cir. December 2007)
8.17.2008 2:13pm
Adam J:
Kazinski- how are you putting this constitutional right beyond the power of the legislature? You're explicitly giving them this power with your bright line rule. The legislature is the one that labels the crimes felonies or misdemeanors.
8.18.2008 10:35am