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Old January 12, 2012, 12:54 PM   #57
Al Norris
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,524
Yesterday, the defendants filed their brief in opposition to plaintiffs MSJ. You can read it here.

My take on the brief:

1. The Only Proper Defendant Under 18 U.S.C. § 925A Is The United States
Which is true if you are trying to overturn the law in question. However, if you are trying trying to overturn the DOJ's interpretation of the law, then the defendants are the proper defendants.

2. Plaintiffs Have Not Had Their “Civil Rights Restored” Within The Meaning of 18 U.S.C. § 921(a)(33)(B)(ii)

The test for whether one’s civil rights have been restored is whether the individual has lost and regained his right to vote, to sit on a jury, and to hold public office. See United States v. Andaverde, 64 F.3d 1305, 1309 (9th Cir. 1995) (stating that in considering whether an individual’s civil rights have been restored, “the Ninth Circuit considers whether the felon has been restored the right to vote, sit on a jury, and hold public office.”) ...
The brief goes on to quote several other pre-Heller cases, as to what constitutes "civil rights."

Here the defendants are regurgitating the same defense that they (successfully) used earlier at the district court: The RKBA is not a civil right.

3. Plaintiffs’ Claim That They Were Not Convicted Of Misdemeanor Crimes Of Domestic Violence Because They Did Not Knowingly and Intelligently Waive Their Right To A Jury Trial Lacks Merit
This is another method that the Defendants have used to downplay the post-Heller/McDonald rulings. The loss of the ability to possess firearms is a mere "collateral consequence" and not the loss of a fundamental right that the plaintiffs contend it is.

All in all, the entire brief is a distillation of the defense arguments previously made at the district court. They were successful earlier, why not now?

The differences between this case and the Skoien and Smith cases (cited as binding precedent by the defense), is that these plaintiffs have not repeated the offenses and are not before the court as criminal defendants.

This gives lie to the Court in Smith, which said: In Congress’s judgment and as demonstrated by social scientists, domestic violence misdemeanants are prone to repeated acts of intrafamily violence. Past domestic violence is an indicator of future crimes of violence, and Congress legislated with that trend in mind. As these plaintiffs have shown no proclivity to repeat the offense(s) they were convicted of.

The plaintiffs have a tough fight to separate their non-criminal action from the weight of precedence in the form of prior criminal cases.
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