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Thread: The Lautenberg Amendment: US v. White: US v. Castleman: Domestic Violence

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    The Lautenberg Amendment: US v. White: US v. Castleman: Domestic Violence

    Recently the SCOTUS decided not to hear the gay marriage issue which has resulted in some states allowing it and some not. Please excuse the poor framing of this question but here is what I'm wondering. Why can't Virgina do this with the Lautenberg law? Earlier this year the SCOTUS ruled on the Castleman case. While the VSP initially made an interpretation that this ruling overruled US v white, most gun- rights attorneys particularly one that frequents this forum say it does not. What can be done on a state level to eliminate the threat of a person convicted of a misdemeanor from being disarmed? My neighbor has a conviction on his background from 17 years ago from an ex girlfriend that claimed he threw a wet towel at her and until US vs White he couldn't by a gun via FFL. I think this is an issue that needs attention come MLK day.
    Last edited by John Pierce; 11-03-2014 at 11:26 AM.

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    Good Sunday to Sir. What are the general criteria for SCOTUS grant of certiorari? SCOTUS Rule 10
    Rule 10. Considerations Governing Review on Certiorari http://www.supremecourt.gov/ctrules/...oftheCourt.pdf
    Review on a writ of certiorari is not a matter of right, but of judicial discretion. A petition for a writ of certiorari will be granted only for compelling reasons. The following, al*though neither controlling nor fully measuring the Court’s discretion, indicate the character of the reasons the Court considers:
    (a) a United States court of appeals has entered a deci*sion in conflict with the decision of another United States court of appeals on the same important matter; has decided an important federal question in a way that conflicts with a decision by a state court of last resort;
    or has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a de*parture by a lower court, as to call for an exercise of this Court’s supervisory power;
    (b) a state court of last resort has decided an impor*tant federal question in a way that conflicts with the decision of another state court of last resort or of a United States court of appeals;
    (c) a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court.

    A petition for a writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law.
    Further, there is vast discussion of the volume of the pool of petitions for certiorari.
    I am responsible for my writing, not your understanding of it.

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    Accomplished Advocate peter nap's Avatar
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    A couple of reasons that wouldn't be a good idea and I'm sure there are others.

    First, any time you take it to the Federal courts, it's a crap shoot and may have some real nasty unexpected consequences.

    Second, it has to meander through the lower courts first and this district is not at all gun friendly.

    Third.....it would cost on the low side 30,000.00 and I mean low side, to do this. I don't know of any Va. Organizations that would foot that bill.

    We could get davidmcbeth down here to scare the Feds though.

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    Regular Member 2a4all's Avatar
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    Quote Originally Posted by ManofGod View Post
    Recently the SCOTUS decided not to hear the gay marriage issue which has resulted in some states allowing it and some not. Please excuse the poor framing of this question but here is what I'm wondering. Why can't Virgina do this with the Lautenberg law? Earlier this year the SCOTUS ruled on the Castleman case. While the VSP initially made an interpretation that this ruling overruled US v white, most gun- rights attorneys particularly one that frequents this forum say it does not. What can be done on a state level to eliminate the threat of a person convicted of a misdemeanor from being disarmed? My neighbor has a conviction on his background from 17 years ago from an ex girlfriend that claimed he threw a wet towel at her and until US vs White he couldn't by a gun via FFL. I think this is an issue that needs attention come MLK day.
    I've discussed this with a few lawyers too, including a prosecutor. They agree that Castleman overrules White, simply because the level of physical force required for an assault to be considered an act of violence is reduced to any offensive touching. The decision only applies to federal law, but if one was able to possess a firearm under White, they would now be prohibited under Castleman.
    A law-abiding citizen should be able to carry his personal protection firearm anywhere that an armed criminal might go.

    Member VCDL, NRA

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    Quote Originally Posted by 2a4all View Post
    I've discussed this with a few lawyers too, including a prosecutor. They agree that Castleman overrules White, simply because the level of physical force required for an assault to be considered an act of violence is reduced to any offensive touching. The decision only applies to federal law, but if one was able to possess a firearm under White, they would now be prohibited under Castleman.
    Okay. Your first mistake was talking to a prosecutor about Virginia gun rights – never do that. You are mistaken and so are they. What was decided in the Castleman case was that an offense such as the Tennessee statue that required keyword required bodily injury will suffice as a barr from owning firearms under the L. amendment. Now if you compare and contrast that with the United States versus white ruling you will find that they are apples to oranges. The record of force required to prove even offensive touching is not there in most Virginia convictions. I can explain it more further but I don't want to come off as condescending. Simply put Castleman does not overrule United States v White. Also Castleman admitted in court to being guilty of causing bodily injury to his wife. United States v White deals with the record of force or lack there of . If you to back to the posts from March you will see Users opinion on the matter. Many consider him as I do the top gun attorney in the state. Perhaps he will chime in. My neighbor purchases from FFL dealers without issue and this is after the Castleman ruling. He was convicted of 18.2-57.2. My purpose in this post is not to debate the Castleman issue. Instead we need to figure out what we can do On a state level to avoid the L amendment altogether. Such as taking one's fire arm rights away for a brief period Such as a year then restoring them.

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    Quote Originally Posted by 2a4all View Post
    I've discussed this with a few lawyers too, including a prosecutor. They agree that Castleman overrules White, simply because the level of physical force required for an assault to be considered an act of violence is reduced to any offensive touching. The decision only applies to federal law, but if one was able to possess a firearm under White, they would now be prohibited under Castleman.
    http://forum.opencarry.org/forums/sh...-violence-quot

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    Regular Member 2a4all's Avatar
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    Quote Originally Posted by ManofGod View Post
    Okay. Your first mistake was talking to a prosecutor about Virginia gun rights – never do that. You are mistaken and so are they. What was decided in the Castleman case was that an offense such as the Tennessee statue that required keyword required bodily injury will suffice as a barr from owning firearms under the L. amendment. Now if you compare and contrast that with the United States versus white ruling you will find that they are apples to oranges. The record of force required to prove even offensive touching is not there in most Virginia convictions. I can explain it more further but I don't want to come off as condescending. Simply put Castleman does not overrule United States v White. Also Castleman admitted in court to being guilty of causing bodily injury to his wife. United States v White deals with the record of force or lack there of . If you to back to the posts from March you will see Users opinion on the matter. Many consider him as I do the top gun attorney in the state. Perhaps he will chime in. My neighbor purchases from FFL dealers without issue and this is after the Castleman ruling. He was convicted of 18.2-57.2. My purpose in this post is not to debate the Castleman issue. Instead we need to figure out what we can do On a state level to avoid the L amendment altogether. Such as taking one's fire arm rights away for a brief period Such as a year then restoring them.
    Mistaken? Indeed!

    I didn't discuss Virginia gun rights; I asked about the effect of federal law post Castleman on gun ownership. A conviction under Virginia law is not affected; such a person could still run afoul of federal law. Your neighbor's purchases were approved by VSP, which may have chosen to only view his status in light of Virginia law (which they won't reveal). His exposure to federal law may still exist. I haven't talked with any attorney who is of the opinion that there's no problem with people who bought firearms under White and continue to possess them post-Castleman. They all advise caution where federal law may be the predominant issue (i.e. transporting across state lines).

    If there are any apples or oranges in this, it's the distinction between federal and state law.
    A law-abiding citizen should be able to carry his personal protection firearm anywhere that an armed criminal might go.

    Member VCDL, NRA

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    If it can be done for gay marriage why not guns??

    Very simple, the LGTB community was not willing to compromise...
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    Last edited by ManofGod; 10-12-2014 at 09:26 PM.

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    Quote Originally Posted by 2a4all View Post
    Mistaken? Indeed!

    I didn't discuss Virginia gun rights; I asked about the effect of federal law post Castleman on gun ownership. A conviction under Virginia law is not affected; such a person could still run afoul of federal law. Your neighbor's purchases were approved by VSP, which may have chosen to only view his status in light of Virginia law (which they won't reveal). His exposure to federal law may still exist. I haven't talked with any attorney who is of the opinion that there's no problem with people who bought firearms under White and continue to possess them post-Castleman. They all advise caution where federal law may be the predominant issue (i.e. transporting across state lines).

    If there are any apples or oranges in this, it's the distinction between federal and state law.
    So have your attorneys advised to just avoid federal land and crossing state lines etc or to dissolve ownership of guns for someone convicted of 18.2-57.2?

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    Administrator John Pierce's Avatar
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    I really would like to be wrong about this but my analysis of the two cases leads me to believe that Castleman DOES overrule White.

    See my analysis at http://johnpierceesq.com/?p=927

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    Of course, both violate your RKBA. Its simple: if you are a freeman, you have the RKBA.

    WOW...don't need a lawyer to understand that.....

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    Here's my original take on it, which has only been reinforced since that time:

    http://forum.opencarry.org/forums/sh...t-ruling-today

    I'm still working on the issue.
    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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    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by user View Post
    Here's my original take on it, which has only been reinforced since that time:

    http://forum.opencarry.org/forums/sh...t-ruling-today

    I'm still working on the issue.
    As usual Dan....Book worthy!

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