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Thread: Fed law re: "misdemeanor crimes of domestic violence" - U.S. S.Ct ruling today

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    Fed law re: "misdemeanor crimes of domestic violence" - U.S. S.Ct ruling today

    http://www.supremecourt.gov/opinions...-1371_6b35.pdf

    U.S.v. Castleman opinion attempts redefinition of "force" in order to broaden the scope of 18 usc 922(g), which prohibits possession of a firearm by persons convicted of misdemeanor crimes of domestic violence. When you read the opinion, keep in mind that "mere dicta", that is, things that are said that are not necessary to the specific holding in the case are not precedent, and the use of artificial language constructions will not ordinarily be given any credit in future opinions.

    First, "mere dicta": If you contrast J.Scalia's opinion with that of the majority, you can see that the latter contains a good deal of surplus stuff constituting personal opinions about what the legislature might have had in mind, and how bad domestic violence is in the U.S. None of that stuff was necessary to the holding. J.Scalia's opinion was solid and straightforward and explained why the defendant had been properly convicted under a Tennessee statute without all that excess baggage. Thus, it's clear that the excess baggage was not necessary to the holding in the case.

    Secondly, the Court invented a "common law" definition of "force", equating "force" with "offensive touching" required for a conviction for common law battery. But there is no common law source for such an invention, it never existed, and there is no citation to any authority for the proposition in the opinion. The reason the Court used that artifice was to get around the holding in the Johnson case which construed the same phrase which is operative in the statute under consideration, "force and violence".

    My opinion is that this decision interpreting Tennessee law has done absolutely nothing to change the law that applies. The states that have no definitions for "misdemeanor crimes of domestic violence", such as Virginia remain unaffected, particulary with respect to courts not of record, where most convictions for domestic assault occur.
    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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    By the way, here's a couple of arguments I'd like to see advanced, just in case any of y'all get a chance to argue such cases:

    1. Cases that come up under this one, as well as the Lautenberg "gun free school zone" statute, are both subject to the same objection that was made earlier, and upon which the S.Ct. found the Lautenberg statute unconstitutional. The fact that Congress has added some language about interstate commerce don't make it so, because it is clearly not designed to have any effect whatsoever on interstate commerce.

    2. The Second Amendment doesn't say, "subject to reasonable regulation", it says, "shall not be infringed". If your rights are subject to "reasonable regulation", then they're not rights. You either have your rights under the Constitution now, or they've already been taken away by acts of tyranny, which should be corrected immediately before things get worse.

    3. An amendment to any document, unless limited by its own terms, amends the entire document. The Second Amendment amends the entire body of the original Constitution, including the power to tax and the power to regulate interstate commerce. Thus, regulation of NFA weapons using the taxation power is unlawful, and the statute under consideration in Castleman is unlawful - Congress can't get around one of the rights identified in an amendment by invoking the magic words, "interstate commerce", because that power has been amended.
    Last edited by user; 03-27-2014 at 07:51 AM.
    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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    I have skimmed the opinion - not one mention of the White case.

    More study needs to be done, but the White case may indeed still be good law in Virginia and similarly situated states where their is (usually) no court record of the details of misdemeanor convictions (e.g., proof of use of [some] force) in General District Court unless the case is appealed and adjudicated in Circuit Court.

    Defendants convicted in General District Court should always think twice about appealing convictions to Circuit Court for this reason!!!

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    Accomplished Advocate color of law's Avatar
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    Virtually no dissent. "Intentionally or knowingly" still plays into the equation.

    And every attorney that tells the guy don't worry it's just a misdemeanor should be horsewhipped.

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    As I have learned our Rights are not rights anymore.

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