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Old March 18, 2013, 07:23 AM   #92
Frank Ettin
Join Date: November 23, 2005
Location: California - San Francisco
Posts: 8,749
Originally Posted by jimpeel
Does not the Lautenberg Act increase the penalty for the crime of domestic abuse after it has already been adjudicated and the punishment meted out? Lautenberg adds a penalty, after the fact, for a crime in which the penalty has already been served or the fine paid.
The disqualification from possessing firearms effected by the Lautenberg Amendment, a federal law, is not a penalty for a state crime of domestic violence. It is not the province of one jurisdiction or sovereignty to punish for the crime of another jurisdiction. And the crime punished under the Lautenberg Amendment is not domestic violence; it is possession of a gun by a person prohibited under federal law from possessing a gun. That is a separate crime, requiring a separate indictment, separate trial and separate conviction.

In the case of the Lautenberg Amendment the prohibiting condition is a state conviction for a misdemeanor of domestic violence, just as under 18 USC 922(g)(1) it's a conviction of a felony, under 18 USC 922(g)(2) it's being a fugitive from justice, under 18 USC 922(g)(3) it includes the unlawful use of a controlled substance, under 18 USC 922(g)(7) it's having renounced United States citizenship, etc. But the crime that might be punished is not the act of domestic violence, or the prior act resulting in the felony conviction, or the renunciation of citizenship. It's the possession of a gun by such a person.

As you and others have noted, Don Kilmer, a well known, experienced, skilled and knowledgeable lawyer, did not raise ex post facto as part of his challenge, on behalf of several plaintiffs, of the Lautenberg Amendment. If that would have been a fruitful basis for challenge, he no doubt would have used it as a basis for a claim for relief in addition to the nine claims for relief he sets out in the initial complaint.

The Lautenberg Amendment has been challenged in other litigation and upheld at the Circuit Court level (see U.S. v. Hartsock, 347 F.3d 1 (1st Cir., 2003); U.S. v. Chester, 628 F.3d 673 (4th Cir., 2010); U.S. v. Skoien, 587 F.3d 803 (7th Cir., 2009); and U.S. v. Booker, 644 F.3d 12 (1st Cir., 2011)). In none of those cases was ex post facto raised. Are we to conclude that the plaintiff's lawyer in each of those cases was so incompetent as to ignore a potentially meritorious line of attack on the federal law?
"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper
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