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Old July 10, 2012, 11:04 PM   #70
Al Norris
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,550
Let's look at some more quotes from the brief.

Pages 3&4:
The controversy before this Court is caused by the federal government’s untenable interpretation of the LAUTENBERG AMENDMENT’S restoration of rights provisions which goes something like this:
  • The SECOND AMENDMENT rights suspended by the LAUTENBERG AMENDMENT can only be restored if the state misdemeanor conviction suspends civil rights and then the jurisdiction restores those civil rights.
  • The only civil rights recognized by federal law that can be suspended and thus restored is (somewhat arbitrarily) limited to: (1) the right to vote, (2) the right to sit on a jury, and (3) the right to hold public office.
  • Therefore unless the domestic violence misdemeanant lost: (1) the right to vote, (2) the right to sit on a jury, and (3) the right to hold public office – as result of an MCDV conviction; no civil rights were lost, ergo – there are no rights to restore.
  • Therefore the federal government need not honor ANY restoration of rights procedure by any state where a conviction for a MCVD does not result in the loss of: (1) the right to vote, (2) the right to sit on a jury, and (3) the right to hold public office
  • This result begs the question. Since no state suspends these rights upon a misdemeanor conviction for domestic violence – except while the misdemeanant is actually incarcerated (and in most states {including California} not even then) the LAUTENBERG restoration of rights provision that relies upon state restoration of civil rights procedures is rendered a dead letter by the government’s interpretation.
Don goes into the "Alice" dialog at this point.

The main arguments begin on page 18. However, pages 18-22 contain the preliminary arguments of this entire case (of which there are 4). It is much too much to quote here, but it should be required reading for those watching this case. These points really highlight what the law requires and the absurd manner in which the Fed.Gov is interpreting the law.

Page 25:
The plain language of 18 U.S.C. § 921(a)(33)(B)(ii) contemplates some state law procedure for restoration of any civil rights forfeited under state law by a MCDV conviction. Appellee-Defendants keep veering off into familiar pre-Heller/McDonald territory with their mantra that a conviction must result in the loss of the right to vote, to hold public office and to sit on a jury – and that only restoration of those rights resurrects the ‘right to keep and bear arms’ – while ignoring that the ‘right to keep and bear arms’ are also civil rights.
Page 26:
Defendants would have this Court interpret the LAUTENBERG AMENDMENT as imposing a federal mandate requiring that states revoke the right to vote, hold public office or sit on a jury for any MCDV conviction in order to give any effect to the statute’s restoration provision. That interpretation would bring into serious doubt the constitutionality of the LAUTENBERG AMENDMENT.
In short, the main arguments, are that in order to avoid assessing the constitutionality of the statutes, the court should have simply followed CA law as to the restoration of rights, not the convoluted reasoning of the Fed.Gov.

In part IV of the brief (the shortest part), should the court recognize that there is no method of restoring the 2A rights, Don writes (pages 32-34):
The Supreme Court in District of Columbia v. Heller, 554 U.S. 570 (2008) gave assurances that “[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Heller at 626-27.

As noted earlier, the LAUTENBERG AMENDMENT is a recent creature of statute having been attached to an appropriations bill during the 104th Congress in September of 1996. Therefore it is not a longstanding doctrine of American jurisprudence that a MCDV should disqualify someone from exercising a fundamental, enumerated right under our Constitution.

It is only the federal government’s insistence on an obtuse reading of 18 U.S.C. § 921(a)(33) et seq., that propels this Court toward a constitutional analysis of the LAUTENBERG AMENDMENT in light of District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. Chicago 561 US ___, 130 S Ct 3020 (2010).

Because the trial court dismissed this action pursuant to Defendant-Appellees’ FRCP 12 Motion, they never filed an answer, or submitted evidence that LAUTENBERG serves a compelling or even important state interest. There certainly was no analysis of any means/ends testing to make sure this policy would address that interest.

If this Court pursues a constitutional analysis of LAUTENBERG in the shadow of the SECOND AMENDMENT, it will be required to classify Plaintiff-Appellants as ‘law-abiding’ citizens. Therefore it should adopt (almost) strict scrutiny and require the government to bear the burden of producing evidence that forbidding rehabilitated misdemeanants with a 10-year (or more) history of law-abiding conduct from exercising SECOND AMENDMENT rights serves a compelling government interest, and that the means used (a complete lifetime ban on exercising the right is necessary to achieve that interest. See: U.S. v. Chester (4th Cir. 2010) 628 F.3d 673 and Ezell v. City of Chicago (7th Cir. 2011) 651 F.3d
Don then concludes his arguments with an epic tautology from "Alice's Adventures in Wonderland."
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