TriggerFinger


SCOTUS takes new gun case ... is this a Heller tea leaf?


It seems the Supreme Court has decided to take another case relating to gun rights.  It's an interesting choice.  The underlying question is whether someone convicted of a misdemeanor battery charge -- basically punching someone -- is allowed to possess firearms. 

This normally wouldn't be a bar to gun ownership, since it's a misdemeanor; federal law bars gun possession for those convicted of felonies.  However, there's another section of the law, termed the Lautenberg amendment, which bars gun possession for those convicted of domestic violence misdemeanors.  Although the law under which the defendent was convicted was not specific to  domestic violence, the victim was his then-wife.

Later, the police arrested him in a domestic-violence incident and found that he had firearms, which triggered the charge for firearms possession as a prohibited person.

The question thus is, does the nature of the relationship make the conviction a domestic violence crime, or does the law have to be specifically written to include the domestic-violence criteria?  The West Virginia court seems to have arrived at a different answer than other courts, hence the appeal to the Supreme Court (by the Justice Department). 

In light of Heller, I have got to believe that the DoJ specifically picked this case to appeal in an effort to ensure that they have a "favorable" case before the Supreme Court before gun-rights advocates have the chance to take another bite at the Emerson apple.  (Emerson was a 5th-circuit domestic violence case that famously found for an individual 2nd Amendment right but nonetheless upheld the domestic-violence statute as "minimally" passing due-process muster).

What attributes of the domestic violence case make it good for the anti-gun side?  Well, let's see.  It's a federal law, so they can avoid the incorporation question and any interference from state Constitutions.  They got lucky in getting a result here that creates a circuit split with an unfavorable plaintiff. 

If I had to guess, I'd say that the four votes necessary to grant cert in this case came from the "liberal wing" of the court, seeking to follow the Heller ruling with another case that will limit any damage Heller does to gun control laws. 

This is not the case we want leading the charge after Heller.

The only bright spot is that the question presented to the Supreme Court doesn't address the 2nd Amendment directly, but I rather suspect it will be addressed in the opinion nonetheless.

This entry was published Wed Mar 26 12:04:33 CDT 2008 by TriggerFinger and last updated 2008-03-26 12:04:33.0. [Tweet]

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