My client was convicted in 1994 of an act of domestic violence in Wisconsin. In 2007, he was notified that due to the Lautenberg Amendment, he would lose his rights to bear arms, including those he carried in the Wisconsin National Guard. We re-opened the case and with the assistance of his then girlfriend/victim, were able to get the case dismissed - thirteen years after the fact. Had we not done so, he would have been drummed out of the Guard after nineteen years of service.

A waste of my time and his money.

March 15, 2009  

You have a point; and I agree with the general rule that only felonies should remove rights (lest the feds take away rights from most or all of us), but I'm not sure what the best solution to this problem is.

First, can the federal government really require the states to make a certain crime a felony? I suppose they could fudge the requirement by linking it to money (like the 21 drinking age), but that's constitutionally problematic also, at least for me. This solution would have the benefit (or drawback, for feminists and anti-gunners) of not punishing those who pled out unknowingly, or were convicted previously).

Can't the federal government instead properly decide that, given the feds have little presence in such matters, and that it is the states who enforce domestic violence law, that conviction of a crime at the state level which the feds believe to be disqualifying (or believe ought to be a felony, or actually is a felony at the federal level, even if not often prosecuted by the feds) does disqualify one from owning guns?

Is the notion that wife-beaters are incapable of the proper lawful use of handguns any more problematic than the notion that alcoholic, drug-using, mentally ill, or retarded people, are so incapable? Is a propensity to anger and violence any less disqualifying than a propensity to drunkeness, craziness or stupidity? (Especially when the former, but usually not the latter, has been proven beyond a reasonable doubt, or pled to, in criminal trial.)

March 15, 2009  

I regret posting anonymously, but I have to given what I'm about to say. I am as pro gun rights as you can be. I am an attorney who authored an amicus brief in Heller in favor of Dick Heller, and I spoke extensively with Alan Gura about the matter. I hope this establishes my credentials.

It seems that the primary dispute here is with the continuing erosion of the legal distinction between felonies and misdemeanors, a distinction begun in Old England but going by the wayside. As a prudential matter, I agree that legislatures should make lesser crimes misdemeanors and greater crimes felonies, and that is largely the case now, but I believe the objections raised in the post are overly dogmatic about this distinction.

Moving on to the gun issue, I'm not 100% certain whether the argument put forward in the post is a policy argument or a constitutional argument, so I will argue both, and also point out a different approach to confronting this issue.

From a constitutional standpoint, the state can constitutionally punish any crime with any penalty, absolutely any deprivation of rights it chooses, so long as the penalty does not run afoul of the Eighth Amendment or impinge upon criminal procedure rights. Deprivation of rights to weapons is neither cruel nor unusual for persons convicted of violent crimes, particularly crimes with a high recidivism rate, which I understand to be the case with domestic violence. There is no constitutional problem here.

From a policy standpoint, and something of a political standpoint as well, I expect most people don't have a lot of concern for the rights of criminals who commit domestic violence. The hard cases are the ones where the alleged violence is de minimis or minor but mutual. But I rely on the good sense of cops, prosecutors, judges, and juries to do right in the de minimis cases (and have personally seen several defense verdicts in these sorts of cases, and never any convictions). In the minor/mutual cases, I don't object to weapon possession rights being denied those individuals because they often go right back to fighting, often escalating as they go. Simply put, if you want to preserve your right to bear arms, don't commit violent crimes, even minor ones.

I'd like to add a brief procedural aside. A guilty plea is only valid if it is a knowing, intelligent, and voluntary waiver (three adjectives which seem rather redundant to me, but c'est la law). If a defendant pleads guilty without awareness of the deprivation of civil rights, that would seem to allow a collateral attack on the conviction down the road, when the person first learns of the disability re weapon possession. (I have not done any research in this area, so I don't know if this argument has been persuasive; it seems that it could be.) But I strongly suspect most of the people fighting the deprivation of weapon rights don't want to go that route because they actually are guilty and a removal of the guilty plea would subject them to a trial and conviction and penalties worse than those in their plea agreement.

One final point. I admire the zeal of the gun rights activists attacking these laws, but I fear that it's not persuasive politically and potentially damaging to the movement. Most people, including me, are likely to believe that if you don't want your civil liberties impinged, you shouldn't commit crimes. The Eighth Amendment (and the criminal procedure amendments) are the only real constraints on this. Frankly, that doesn't bother me.

My suggestion is this. Let's maximize the gun rights of non-violent criminals. Once we've accomplished that, let's take a look at this issue. And so long as domestic violence is an escalating, recidivist type of crime, even the most conservative and libertarian among us will be hard sells on leaving intact violent criminals' gun rights.

March 15, 2009