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Thread: Supreme Court Hearing Gun Possession Sentencing Case Today

  1. #1

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    This is the first post-Heller casewhere the Supreme Court may explore what a fundamental and individual 2A right means:

    In its brief to the Court, the Second Amendment Foundation explains:




    "That the Government seeks to find an individual’s fundamental, enumerated rights extinguished by a guilty plea is also significant. Like other enumerated fundamental rights, Second Amendment rights may be relinquished only upon a voluntary, knowing, and intelligent waiver. Respondent cannot now be deprived of a fundamental right as a consequence of his voluntary plea, where such loss could not have been contemplated at the time he pled guilty."

    Says the Sentencing Law and Policy blog:

    "Here are the basics from this post at SCOTUSblog:


    In the second grant Monday, the Court agreed to hear a Justice Department appeal in U.S. v. Hayes (07-608), urging it to clarify the federal law that makes it a crime to have a gun after being convicted of a misdemeanor crime of domestic violence. The specific issue is whether the federal ban at issue requires that the convicted individual and the victim in the underlying crime have a domestic relationship — that is, as a spouse, parent or guardian.
    Though it appears that Hayes is only about a technical statutory issue, the case could end up being about a lot more if Heller declares that there is an enforceable individual right to keep a gun. Here are the key facts in Hayes from the Fourth Circuit opinion on which cert was sought by the Justice Department:


    In 1994, [Randy Edward] Hayes pleaded guilty to a misdemeanor battery offense under West Virginia law, in the magistrate court of Marion County, West Virginia (the "1994 State Offense"). The victim of the 1994 State Offense was Hayes's then wife, Mary Ann (now Mary Carnes), with whom he lived and had a child. As a result of the 1994 State Offense, Hayes was sentenced to a year of probation.

    Ten years later, on July 25, 2004, the authorities in Marion County were summoned to Hayes's home in response to a domestic violence 911 call. When police officers arrived at Hayes's home, he consented to a search thereof, and a Winchester rifle was discovered. Hayes was arrested and, on January 4, 2005, indicted in federal court on three charges of possessing firearms after having been convicted of an MCDV, in violation of 18 U.S.C. §§ 922(g)(9) and 924(a)(2).
    This fascinating little case should help everyone understand why Solicitor General Paul Clement is justifiably concerned about a broad pro-gun constitutional ruling in Heller. If the Second Amendment truly protects an individual right to domestic self protection, prosecuting Randy Edward Hayes for having a Winchester in his home seems very constitutionally troublesome. And, at the very least, if Heller says anything nice about the constitution and gun possession, the doctrine of constitutional doubt ought to impact how the statutory issue in Hayes plays out."





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  3. #3
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    Link to 4th Cir. opinion, briefs, oral argument transcript and related documents.
    James M. "Jim" Mullins, Jr., Esq.
    Admitted to practice in West Virginia and Florida.

    Founder, Past President, Treasurer, and General Counsel, West Virginia Citizens Defense League, Inc.
    Life Member, NRA

  4. #4

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    Thanks for the link.

    Interesting argument by the government: claims it will have trouble implementing Brady law if gun possession by certain past offenders is legal in the 4th Circuit, but illegal in all other circuits.

    My gut tells me that the 4th Circuit is right in this case: the plain meaning of the statute governs REGARDLESS of any difficulties it creates for instant check. If Congress wanted a uniform law to govern all DV in all 50 states, it should have worded the statute that way.

    If the Court rules the way I predict, the Heller issues may have to wait for another day. But watch out for the Brady folks to come in and try to "fix" the old law with a new bill -- and oh by the way, there is that loophole matter . . . .

  5. #5
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    I agree on all points except that the plain meaning interpretation adopted by the 4th Circuit actually makes background checks far easier to do since the focus would be on the statute under which the person was convicted rather than a combination of the statute and an examination of the facts of the case, which may not always be there. Many states purge records of old misdemeanor cases and thus it could be impossible to accurately determine the facts of a simple assault or battery case from many years ago.

    BTW, here is a story on yesterday's oral arguments.
    James M. "Jim" Mullins, Jr., Esq.
    Admitted to practice in West Virginia and Florida.

    Founder, Past President, Treasurer, and General Counsel, West Virginia Citizens Defense League, Inc.
    Life Member, NRA

  6. #6
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    The Donkey wrote:
    If the Court rules the way I predict, the Heller issues may have to wait for another day. But watch out for the Brady folks to come in and try to "fix" the old law with a new bill -- and oh by the way, there is that loophole matter . . . .
    If Congress moves to expand this gun disability, we should work to sunset the disability (like maybe 10 years).

  7. #7
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    The Donkey wrote:
    Says the Sentencing Law and Policy blog:

    "This fascinating little case should help everyone understand why Solicitor General Paul Clement is justifiably concerned about a broad pro-gun constitutional ruling in Heller. If the Second Amendment truly protects an individual right to domestic self protection, prosecuting Randy Edward Hayes for having a Winchester in his home seems very constitutionally troublesome. And, at the very least, if Heller says anything nice about the constitution and gun possession, the doctrine of constitutional doubt ought to impact how the statutory issue in Hayes plays out."
    Why, of course, the Solicitor General is "concerned". Why, if Dred Scott v. Sandford is ever overturned, uppity folks who look like Danladi Moore might be able to carry guns! The horror!

    We'd have "that kind" (BMWAG) everywhere!



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