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I am curious about the case(s) of U.S v. Hayes and Wyoming v. U.S. As I understand it the Hayes case has gone to the SCOTUS where they will review it. As I understand the case of Wyoming v. U.S the circuit court of appeals dismissed the case but they can still appeal to the SCOTUS as well.
1. Any thoughts or predictions on what will happen with the Hayes case?
2. Could the SCOTUS rule that the Lautenberg Amendment is unconsitutional or that it may just be worded vaguely which would require clarification?
3. Do you think that SCOTUS will agree to hear the Wyoming v. U.S case? If so, any predictions on how they will rule there given the courts make up?
So, Hayes was accused of a domestic violence battery charge that, according to Virginia statutes, did not have a "domestic relationship" element (something not present in the original Fourth Circuit Court decision, but is now present since the court reversed itself), and is making the case that the Lautenberg Amendment thus doesn't apply to him? Simplified version, but I think still correct.
Here (http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00000921----000-.html) is the law they're referring to:
(33)(A) Except as provided in subparagraph (C), the term
"misdemeanor crime of domestic violence" means an offense that -
(i) is a misdemeanor under Federal or State law; and
(ii) has, as an element, the use or attempted use of physical
force, or the threatened use of a deadly weapon, committed by a
current or former spouse, parent, or guardian of the victim, by a
person with whom the victim shares a child in common, by a person
who is cohabiting with or has cohabited with the victim as a
spouse, parent, or guardian, or by a person similarly situated to
a spouse, parent, or guardian of the victim.
If this is the case, it sounds to me like a case of judicial activism on the part of the Fourth Circuit Court. They're adding something that just isn't there. I don't see this ruling favorably for Hayes, and I do see the Supreme Court siding with Judge Williams' dissenting opinion that the "element" addressed in Section 921(a)(33)(A) does not refer to a separate element of domestic relationship, and refers instead to the element of "use or attempted use of physical force, or the threatened use of a deadly weapon" as it presently reads. I just don't see how the Lautenberg Amendment is going to be turned over here. I'm of the opinion that if the Courts want to treat certain crimes as felonies, make them felonies, not misdemeanors with felony effects, but that's my opinion and worth what you paid for it.
The Wyoming v. BATF is a lot more juicy. Shown here (http://www.bradycenter.org/xshare/pdf/lap/cases/WY-v-BATF-opinion.pdf).
Jennings' misdemeanor conviction was expunged using the State of Wyoming's 7-13-1501. The BATF is arguing that the Wyoming law does not restore firearm ownership rights because it does not satisfy the criteria described in here (http://www4.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00000921----000-.html) in 921(a)(33)(B)(ii), shown below:
(ii) A person shall not be considered to have been convicted of such an offense for purposes of this chapter if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.
Here's the Wyoming law in question:
7 13 1501. Petition for expungement of records of conviction of misdemeanors; filing fee; notice; objections; hearing; definitions.
(a) A person who has pleaded guilty or nolo contendere to or been convicted of a misdemeanor or misdemeanors arising out of the same occurrence or related course of events may petition the convicting court for an expungement of the records of conviction for the purposes of restoring any firearm rights lost, subject to the following limitations:
(i) At least one (1) year has passed since the expiration of the terms of sentence imposed by the court, including any periods of probation or the completion of any program ordered by the court;
(ii) Other than convictions arising out of the same occurrence or related course of events, the petitioner has not previously pleaded guilty or nolo contendere to or been convicted of a misdemeanor for which firearm rights have been lost;
(iii) The misdemeanor or misdemeanors for which the person is seeking expungement shall not have involved the use or attempted use of a firearm.
When Wyoming first passed the law, the ATF sent them a letter saying only federal, not state, law determined the definition of "expungement", and anyone who through that new law had their criminal records expunged would still be criminally liable via 18 USC 922. They sent another letter a year later saying Wyoming had one of two choices: stop issuing concealed-carry license those who've had their records expunged under Wyoming law or draft a law fixing the disparity between federal and state definitions of "expunge", or else the ATF would run background checks on everyone with Wyoming concealed carry licenses. Wyoming took the issue straight to the district court, who ruled that their law did not comply with the earlier definition. Wyoming is appealing and trying to take this higher.
On this one, I think the ATF is blowing smoke up everyone's ass and would get trounced in court. I really hope the Supreme Court decides to hear this case.
-B
BAC,
In the Hayes case I believe that it is a play in the wording since nowhere does it say "domestic violence" in his original conviction. I read some of the stuff online and it seemed to make sense but I was wondering what others thoughts were.
The Wyoming case is definitely interesting and I think that it highlights how the wording in federal and state legislation can be similar but yet different enough that people interpret stuff differently.
In the Hayes case that might be true; admittedly I haven't found the original conviction. I hate cases where a lawyer wants to play on words instead of on the intent/spirit of the law, which in this case is pretty obvious. Hayes is trying to use a technicality to get around the fact that he committed a crime and doesn't like the punishment. If I got to see the original conviction and some credible sources for evidence, maybe I'd change my mind. Maybe. ;)
Still, whether or not the Lautenberg Amendment ought to be overturned is a question that warrants some thought. I think it comes down to what is believed to be appropriate punishment for certain crimes; if this misdemeanor results in you losing your firearms rights, why doesn't that misdemeanor? What makes this misdemeanor different than that one? Personally I don't see this as a decision to be made by the federal government (you know, 10th Amendment and all), but obviously that's not going to be challenged. I think the only case I've heard of the US Gov't giving up power is in Prohibition, and they still have most of those laws still in place.
On the Wyoming case, I really want to see that go to court. The wording really isn't so different, and I would never have thought they were different if the ATF hadn't made that claim. Reading the claim, I still don't buy it. I don't think they ATF wants this going higher, because I don't think they want the attention; it's why they tried strong-arming the State of Wyoming in the first place, and it didn't work (historically, Western states, minus California, tend to put up with very little crap from the US Gov't). We'll see, won't we?
-B
BAC,
My real issue with Lautenberg is the fact that it is also applied retroactively and though I am no legal scholar I fail to see how this isn't considered a violation of Ex Post Facto type laws. If a person was fully aware of the consequences prior to any plea or finding of guilt then I would say fair game. But, for someone to have their rights stripped away based on something that happened 10, 15 or 20 years before Lautenberg passed.
As for the Wyoming case I agree that BATFE took a gamble and thought that they state would cave in and it's too bad that other states couldn't somehow get involved.
In the Hayes case that might be true; admittedly I haven't found the original conviction. I hate cases where a lawyer wants to play on words instead of on the intent/spirit of the law, which in this case is pretty obvious. Hayes is trying to use a technicality to get around the fact that he committed a crime and doesn't like the punishment. If I got to see the original conviction and some credible sources for evidence, maybe I'd change my mind. Maybe. ;)
Still, whether or not the Lautenberg Amendment ought to be overturned is a question that warrants some thought. I think it comes down to what is believed to be appropriate punishment for certain crimes; if this misdemeanor results in you losing your firearms rights, why doesn't that misdemeanor? What makes this misdemeanor different than that one? Personally I don't see this as a decision to be made by the federal government (you know, 10th Amendment and all), but obviously that's not going to be challenged. I think the only case I've heard of the US Gov't giving up power is in Prohibition, and they still have most of those laws still in place.
On the Wyoming case, I really want to see that go to court. The wording really isn't so different, and I would never have thought they were different if the ATF hadn't made that claim. Reading the claim, I still don't buy it. I don't think they ATF wants this going higher, because I don't think they want the attention; it's why they tried strong-arming the State of Wyoming in the first place, and it didn't work (historically, Western states, minus California, tend to put up with very little crap from the US Gov't). We'll see, won't we?
-B
BAC,
My real issue with Lautenberg is the fact that it is also applied retroactively and though I am no legal scholar I fail to see how this isn't considered a violation of Ex Post Facto type laws. If a person was fully aware of the consequences prior to any plea or finding of guilt then I would say fair game. But, for someone to have their rights stripped away based on something that happened 10, 15 or 20 years before Lautenberg passed.
If Lautenberg is being applied retroactively, then you're correct, that is illegal. I hadn't noticed that it was, thinking it was in effect when Hayes committed his crime. THAT I hope will be addressed, though I'm afraid it probably won't be since it's not within the scope of that case's argument, given that the primary function of SCOTUS is to yes/no the lower decision and not to create a new one. :(
-B
BAC,
When Lautenberg went into effect it applied retroactively to any and everyone who has been convicted of a crime of domestic violence. Unfortunately, I don't think that the SCOTUS is addressing that issuse though I believe that someone really should.
If Lautenberg is being applied retroactively, then you're correct, that is illegal. I hadn't noticed that it was, thinking it was in effect when Hayes committed his crime. THAT I hope will be addressed, though I'm afraid it probably won't be since it's not within the scope of that case's argument, given that the primary function of SCOTUS is to yes/no the lower decision and not to create a new one. :(
-B
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