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Old July 14, 2010, 07:46 AM   #9
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Join Date: November 16, 2008
Posts: 1,180
The dissent makes a great point that the majority fails to make the government carry it's burden and that the proper forum for making the government do that is the district court.

Skoein being a less than sympathetic character is not the basis for upholding the law. Many criminals, whose crimes are far worse than domestic violence, have been let go on 4th amendment grounds. If the 4th amendment were examined in a way similar to the majorities opinion we could say that even though the 4th amendment protects a person from unreasonable and warrantless search and siezure this guy is clearly a bad guy so a search even though warrantless and unreasonable is ok.

I don't think the lautenberg amendment would withstand strict scrutiny. However, the prohibition on those with DV restraining orders probably will. In most cases DV orders are temporary, imposed after due process is given, and involve those offenders who have most recently committed the crimes.

The government has a compelling interest in stopping domestic violence. Prohibiting those convicted of misdemeanor DV assault is a very broad brush and does not take into account a persons actual dangerousness or propensity to committ the acts the government has an interest to prevent. The DV order subset invovles a much narrower set of offenders and usually involves those who have most recently committed DV Assault.

Now if congress changed the lautenberg amendment to only a 5 year ban I am certain it would be considered consitutional under any standard.
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