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Thread: Se. Herring's bill to make Va. a Lautenberg state to be heard on 24 FEB 2012

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    Se. Herring's bill to make Va. a Lautenberg state to be heard on 24 FEB 2012

    See http://lis.virginia.gov/cgi-bin/legp...sub+H150010224

    This bill contorts Virginia law tro make Virginia a lautenberg state - where one single state misdemeanor can result in a lifetime gun ban.

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    I'm not so much opposed to the loss of firearms rights (except for the fact that the Virginia Constitution, Art. 1, Sect. 13, provides an absolute right to carry) with respect to physical attacks. But what bothers me is that any touch, no matter how slight, can result in a conviction, and there is no well-defined procedure for restoration of firearms rights. It is absolutely absurd to provide for the same degree of freedom from touching within a marriage as applies between strangers on the street. The statute was originally drafted to overcome the common law privilege against prosecutions for acts committed between spouses. At common law (by the way, you'll notice the statute doesn't say anything about the marital privilege - this is an example of how rights are lost by simply failing to mention them in a statute, the main reason the fake castle doctrine bills are defective), no crime was committed for any assault (offer to touch) or battery (actual touching) between spouses. What we need to do, I think, is bring the marital assault statute up a bit by requiring the application of not only physical force (as defined by the amendment) but actual violence, and completely getting rid of the language that makes any touch (or offer to touch) one's spouse a crime. Does a person really expect to go to jail for up to twelve months because the sex got a little rougher than expected one time? Or because she put her hand on her husband's shoulder to keep him from walking away while she's "talking to" him? Those would both be violations under paragraph 1.

    The simple cure for the opinion in White's case is to specify that a person is not guilty of any crime at all for domestic assault, and that domestic battery requires a showing of actual application of physical force AND violence. That would obviate the need for any inclusion of language about malicious wounding, caustic substances, fire, etc.
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

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    Quote Originally Posted by user View Post
    I'm not so much opposed to the loss of firearms rights (except for the fact that the Virginia Constitution, Art. 1, Sect. 13, provides an absolute right to carry) with respect to physical attacks. But what bothers me is that any touch, no matter how slight, can result in a conviction, and there is no well-defined procedure for restoration of firearms rights. It is absolutely absurd to provide for the same degree of freedom from touching within a marriage as applies between strangers on the street. The statute was originally drafted to overcome the common law privilege against prosecutions for acts committed between spouses. At common law (by the way, you'll notice the statute doesn't say anything about the marital privilege - this is an example of how rights are lost by simply failing to mention them in a statute, the main reason the fake castle doctrine bills are defective), no crime was committed for any assault (offer to touch) or battery (actual touching) between spouses. What we need to do, I think, is bring the marital assault statute up a bit by requiring the application of not only physical force (as defined by the amendment) but actual violence, and completely getting rid of the language that makes any touch (or offer to touch) one's spouse a crime. Does a person really expect to go to jail for up to twelve months because the sex got a little rougher than expected one time? Or because she put her hand on her husband's shoulder to keep him from walking away while she's "talking to" him? Those would both be violations under paragraph 1.

    The simple cure for the opinion in White's case is to specify that a person is not guilty of any crime at all for domestic assault, and that domestic battery requires a showing of actual application of physical force AND violence. That would obviate the need for any inclusion of language about malicious wounding, caustic substances, fire, etc.
    100% agree with this.

    Our state legislatures and our federal government have gotten completely out of hand with their "zero-tolerance" concept. Kids can't take Bufferin, Tyslenol, or Midol to school or things like finger nail files, a butter knife with their lunch, or a simple pocket pen knife. We as a society have been so dumbed down by these idiots who in fact are the very people and types of people who have created the environment where they now believe their zero-based intolerance is necessary. We see this is so many facets of our lives from firearms to seat belt laws to helmet laws to labeling on household appliances and chemicals. And the continued advancement of this mindset only leads to more loss of rights because individual rights get in the way of their ultimate plan.
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    Exclamation

    @User

    Will this become retroactive? As of now most people convitced of 18.2-57.2 arent not subject to the Lautenberg ban on a state or federal level...Will this be affect those indiviuals?

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    Exclamation

    Quote Originally Posted by love4guns View Post
    @User

    Will this become retroactive? As of now most people convitced of 18.2-57.2 arent not subject to the Lautenberg ban on a state or federal level...Will this be affect those indiviuals?
    Article I, Section 10. (ex post facto laws)
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    Quote Originally Posted by wylde007 View Post
    Article I, Section 10. (ex post facto laws)
    What does that mean?

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    Exclamation

    It is one of the most important sections of the Constitution.

    Simply put, you cannot be held criminally liable for violation of a law if it was passed AFTER the fact.
    The quiet war has begun, with silent weapons
    And the newest slavery is to keep the people poor, and stupid
    Novos ordo seclorum ~ Mustaine

    Never argue with an idiot. He will drag you down to his level and beat you with experience.

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    Quote Originally Posted by wylde007 View Post
    It is one of the most important sections of the Constitution.

    Simply put, you cannot be held criminally liable for violation of a law if it was passed AFTER the fact.
    And not applicable to this discussion. The bill wold establish a new subsection of law, a violation of which squarely fits the Lautenberg firearm disability criteria.

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    Quote Originally Posted by Mike View Post
    And not applicable to this discussion. The bill wold establish a new subsection of law, a violation of which squarely fits the Lautenberg firearm disability criteria.
    I think it is applicable to this topic. The lautenberg law WAS retroactive so how do we know Virginia law makers won't try to do the same with this bill?

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    Quote Originally Posted by love4guns View Post
    I think it is applicable to this topic. The lautenberg law WAS retroactive so how do we know Virginia law makers won't try to do the same with this bill?
    The bill does not impose retroactive penalties under Virginia law.

    Regardless, gun rights disabilities imposed on past convictions are not considered unconstituional.

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    Hopefully there will be a big showing. I can't be there but have already made my wishes known.
    Warm bodies always help if there's a fence sitter on the Committee and you can bet Lori and the three stooges will be there.

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    Quote Originally Posted by Mike View Post
    Regardless, gun rights disabilities imposed on past convictions are not considered unconstituional.
    The hell they aren't.
    The quiet war has begun, with silent weapons
    And the newest slavery is to keep the people poor, and stupid
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    Quote Originally Posted by Mike View Post
    The bill does not impose retroactive penalties under Virginia law.

    Regardless, gun rights disabilities imposed on past convictions are not considered unconstituional.
    Moot; SB224 was C.O.'d until next year.

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    Quote Originally Posted by Repeater View Post
    Moot; SB224 was C.O.'d until next year.
    Great News Repeater, thanks.
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    Quote Originally Posted by wylde007 View Post
    The hell they aren't.
    huh? Cite to authority.

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    Quote Originally Posted by Mike View Post
    huh? Cite to authority.
    I can Cite it for him Mike.

    Many of us don't consider taking any right for any reason Constitutional and we really don't give a Rats Rump what the Supreme Court (or anyone else for that matter) considers it.

    The two times I've had to serve on a Jury, the man was acquitted because I wouldn't budge on that belief and the rest gave in. I was excused the last time because I told the Judge I could cast my vote before the trial started.

    That's the Authority and if fewer people allowed themselves to be lead around by the nose, we wouldn't have to worry about Supreme Court interpretations,

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    The confusion arises over the difference between "substance" and "procedure". The change in the law affecting the registration requirements for persons convicted of sexual offenses was valid because it was a change in "procedure", not "substance" (at least that was the theory used to justify the imposition of additional post-conviction sentencing). In this case, the changes to the criminal statute are substantive, they define new and different offenses by changing the law. So anyone who could be charged with domestic battery because of an offense occurring prior to the change in the law will have to be charged under the law as it was.

    Wylde007 is right.

    By the way, there's an interesting sideline to this issue. Felons convicted prior to a certain date on the basis of a plea of "nolo contendere" cannot be considered convicted felons for purposes of firearms possession, because the circuit courts were not permitted to accept that plea at the time. Such people can have their gun rights restored on the basis of a void order of conviction.
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

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    Quote Originally Posted by user View Post

    Wylde007 is right.
    Um, no - let's **focus** on Wylde007's specific contention - that applying Lautenberg federal gun rights disability to convictions for misdeamnor crimes of domestic violence (MSDVs) occuring before Lautenberg was enacted is unconstitutional. The statute says exactly this, and has been upheld by courts universally.

    I wish this was not the case, but it is not.

    Fortunately for folks convicted under Virginia's MCDV, the 4th Circuit held in US v. White that Virginia's statute does not generally include the elements of the offense required (basically that the battery or assault on a family member was of a violent nature likley to cause pain) under Lautenberg to disable one's gun rights, though it also held the door open to use information contained in the "warrant," the only record of a criminal conviction in a Virginia District Court, that supports idea that the battery or assault on a family member was of a violent nature likley to cause pain was alleged and proved in the criminal proceeding. This means, under White, many or most, and perhaps all, folks previously convicted of a Va. MCDV are NOT disabled from possessing firearms under federal law, even though they were told they were years ago.

    So, under White, for at least one more year while SB 224 sits in the penalty box, it looks like Virginia is not a Lautenberg state.

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    Quote Originally Posted by Mike View Post
    Um, no - let's **focus** on Wylde007's specific contention - that applying Lautenberg federal gun rights disability to convictions for misdeamnor crimes of domestic violence (MSDVs) occuring before Lautenberg was enacted is unconstitutional. The statute says exactly this, and has been upheld by courts universally.

    I wish this was not the case, but it is not.

    Fortunately for folks convicted under Virginia's MCDV, the 4th Circuit held in US v. White that Virginia's statute does not generally include the elements of the offense required (basically that the battery or assault on a family member was of a violent nature likley to cause pain) under Lautenberg to disable one's gun rights, though it also held the door open to use information contained in the "warrant," the only record of a criminal conviction in a Virginia District Court, that supports idea that the battery or assault on a family member was of a violent nature likley to cause pain was alleged and proved in the criminal proceeding. This means, under White, many or most, and perhaps all, folks previously convicted of a Va. MCDV are NOT disabled from possessing firearms under federal law, even though they were told they were years ago.

    So, under White, for at least one more year while SB 224 sits in the penalty box, it looks like Virginia is not a Lautenberg state.
    I apologize, but I found this a bit confusing. I went back and re-read everything Wylde007 wrote, and I'm pretty sure he's talking about retroactive application of the statute to people convicted under the existing version of the statute. And he can clear that up if I'm wrong, but if I read him correctly, he's right.

    What White v. United States relied on was the fact that the courts that typically handle these cases are the district courts which are not courts of record - the only way it would be in circuit would be if there were an indictment in that court (rare) or if there were an appeal from the decision of a district court. And, because the elements of the offense as defined do not require "force and violence" for a conviction, and there being no record of the evidence presented (which could be used to establish the "force and violence" element), it is generally not possible to say that a person convicted of domestic battery in Virginia is guilty of a "misdemeanor crime of domestic violence".

    No one convicted under the existing statute will ever be subject to Frank Lautenberg's amendment (which I think is unconstitutional on its face, by the way - state law governs possession of private property and the police power, and pre-empts inconsistent federal law on those subjects - my opinion). People convicted under the force and violence prong of the proposed legislation will be. But that doesn't change the decision in White as to people convicted under the existing statute.
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

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    Quote Originally Posted by user View Post
    I apologize, but I found this a bit confusing. I went back and re-read everything Wylde007 wrote, and I'm pretty sure he's talking about retroactive application of the statute to people convicted under the existing version of the statute. And he can clear that up if I'm wrong, but if I read him correctly, he's right.

    What White v. United States relied on was the fact that the courts that typically handle these cases are the district courts which are not courts of record - the only way it would be in circuit would be if there were an indictment in that court (rare) or if there were an appeal from the decision of a district court. And, because the elements of the offense as defined do not require "force and violence" for a conviction, and there being no record of the evidence presented (which could be used to establish the "force and violence" element), it is generally not possible to say that a person convicted of domestic battery in Virginia is guilty of a "misdemeanor crime of domestic violence".

    No one convicted under the existing statute will ever be subject to Frank Lautenberg's amendment (which I think is unconstitutional on its face, by the way - state law governs possession of private property and the police power, and pre-empts inconsistent federal law on those subjects - my opinion). People convicted under the force and violence prong of the proposed legislation will be. But that doesn't change the decision in White as to people convicted under the existing statute.
    To take what User said a step futher if I dare. United States V Shepard clearlly outlines what can be looked at by a later court. The statutory definition, charging document, written plea agreement, transcript of plea colloquy, and the judges final order. These are the only items that can be used to determine force or violence by a later court. Therefore, even if a person appealed to the circuit court, if there are no record of force in these items then they are not barred under the Lautenberg amendemnt
    User please chime in if I am incorrect

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    Quote Originally Posted by love4guns View Post
    To take what User said a step futher if I dare. United States V Shepard clearlly outlines what can be looked at by a later court. The statutory definition, charging document, written plea agreement, transcript of plea colloquy, and the judges final order. These are the only items that can be used to determine force or violence by a later court. Therefore, even if a person appealed to the circuit court, if there are no record of force in these items then they are not barred under the Lautenberg amendemnt
    User please chime in if I am incorrect
    Agree, suggest also taking a look at: Johnson v. United States , 559 U.S. ___ 086925 (2010). Similar issues arising under same principles as to Florida law.
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

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    Quote Originally Posted by love4guns View Post
    To take what User said a step futher if I dare. United States V Shepard clearlly outlines what can be looked at by a later court. The statutory definition, charging document, written plea agreement, transcript of plea colloquy, and the judges final order. These are the only items that can be used to determine force or violence by a later court. Therefore, even if a person appealed to the circuit court, if there are no record of force in these items then they are not barred under the Lautenberg amendemnt
    User please chime in if I am incorrect
    The White court left the door open to using the "warrant" to deep dive into the threat/use of actual force particulars. The "warrant" is the record of the conviction in District Court.

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    Quote Originally Posted by Mike View Post
    The White court left the door open to using the "warrant" to deep dive into the threat/use of actual force particulars. The "warrant" is the record of the conviction in District Court.
    In the White case the only info availble was the warrant from J and D court. However, they can look at more than the warrant to determine force. The judges final order and the transcipts can be used to determine force. Pictures and other forms of evidence are not allowed to determine force. I got this info from Richard Gardnier.....should be correct

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    Quote Originally Posted by love4guns View Post
    In the White case the only info availble was the warrant from J and D court. However, they can look at more than the warrant to determine force. The judges final order and the transcipts can be used to determine force. Pictures and other forms of evidence are not allowed to determine force. I got this info from Richard Gardnier.....should be correct
    Except that in District Court the final order is the warrant - there would generally not be any transcript - that's why it's called a court not of record.

    See discussion on this issue in White at http://pacer.ca4.uscourts.gov/opinion.pdf/094114.P.pdf

    SNIP

    "General district courts in Virginia are courts not of record, VA CODE ANN. § 16.1-69.5, so the only record of the charges, trial, conviction and sentence is the executed warrant of arrest as executed by the trial judge. As to the facts of White’s offense, all that is known is the date, August 25, 2004, and that the charge is "assault and batter[y] of [victim] (child in common), who is a family or household member."

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    Quote Originally Posted by love4guns View Post
    To take what User said a step futher if I dare. United States V Shepard clearlly outlines what can be looked at by a later court. The statutory definition, charging document, written plea agreement, transcript of plea colloquy, and the judges final order. These are the only items that can be used to determine force or violence by a later court. Therefore, even if a person appealed to the circuit court, if there are no record of force in these items then they are not barred under the Lautenberg amendemnt
    User please chime in if I am incorrect
    So, can you join the army if convicted of assault and battery against a family member?

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