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November 2008
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The Daily Record Reports on WV Gun Case Before US Supreme Court
Court weighs domestic abusers’ gun rights
November 11, 2008 7:16 PM
WASHINGTON — The Supreme Court heard argument Monday in a case that could restore gun-ownership rights to some domestic abusers.
Under an amendment to the Federal Gun Control Act, people who have been convicted of a “misdemeanor domestic violence offense” are barred from gun ownership. However, the 4th U.S. Circuit Court of Appeals held last year that the prohibition does not apply to a man who was convicted of misdemeanor battery, even though the victim was his wife.
That decision, which created a conflict between the 4th Circuit and nine others that have considered the question, was under review by the high court on Monday.
Arguments turned into a painstaking scrutiny of the muddled wording and punctuation of the amendment, which Justice Anthony Kennedy called “a mess.”
Justice Antonin Scalia, meanwhile, cautioned against reading too much into legislative intent.
“People are governed by the law that is passed, not by the law that Congress intended to pass,” Scalia said.
Even so, the attorneys and justices tried as best they could to determine the intent of the amendment’s author, Sen. Frank Lautenberg of New Jersey.
“Sen. Lautenberg specifically said in the legislative record [domestic abusers] are often charged as offenses like assault and battery, and we need to get at these offenses because these people should not have firearms,” said Nicole A. Saharsky, assistant to the solicitor general arguing on behalf of the government. “They should not put their families in that type of powder keg situation.”
But Troy N. Giatras of the Giatras Law Firm in Charleston, W. Va., disagreed. A broader version of the amendment was proposed and rejected by Congress, he noted.
“The government’s reading ignores the legislative compromise that led to the contested language; and, if adopted by this court, would rewrite the statute and hand one side the legislative victory that they were unable to achieve in Congress,” Giatras said.
Commas and clauses
The case stems from the 1993 conviction of Randy Edward Hayes under a West Virginia general battery statute for striking his then-wife.
In 2004, police responding to a domestic violence call involving Hayes and his girlfriend found an unloaded Winchester rifle under his bed.
Hayes pleaded guilty to violating the Federal Gun Control Act but preserved his right to appeal.
The 4th Circuit, which covers Maryland, North Carolina, South Carolina, Virginia and West Virginia, found that the statute did not apply to him. The Justice Department sought review by the high court.
On Monday, oral arguments centered on the language of the so-called Lautenberg Amendment, which defines a “misdemeanor crime of domestic violence” as:
an offense that (i) is a misdemeanor under Federal or State law; and (ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.
Saharsky argued that the most natural reading of the admittedly untidy language is that it includes general misdemeanors if the victim is a domestic partner.
“Nine Courts of Appeals have determined that the text does not require a domestic relationship to be an element to the predicate offense,” Saharsky argued. “That’s because the statute’s text uses only one element — using the singular word “element” — which relates to mode of aggression. It then introduces a new concept related to domestic relationship, using a comma and the word ‘committed.’ The word ‘committed’ naturally modifies the word offense.’ In common usage, a person commits an offense; he doesn’t commit a use or attempted use of physical force.”
The argument wasn’t an easy sell as the justices jumped into the thorny interpretation.
“You have the ‘that,’ and the ‘that’ applies to both (i) and (ii), and [‘committed’] is part of (ii),” Scalia said. “I think you’ve got to either say ‘that committed’ or put in an ‘is’ – ‘that is committed.’ … Yes, it’s not usual to talk about ‘committing a use of force,’ but it happens sometimes.”
Saharsky also argued that, under the 4th Circuit’s reading, the Lautenberg amendment would have no effect in states that don’t separate domestic violence from their criminal laws on assault and battery — including Lautenberg’s home state of New Jersey.
“If a lawyer reading this would not think that it applied, I don’t care what Congress intended,” Scalia said. “If the law doesn’t say that, the person is not governed by it.”
During Giatras’ argument, Justice Stephen Breyer tried to get to the bottom of Lautenberg’s aim.
“[First] Sen. Lautenberg put in the language to say, ‘I’ll tell you a group of people who shouldn’t have guns: the people who commit a crime of domestic violence,’” Breyer said. “Then he says after, ‘I changed that language a little. I’ll tell you why. Because somebody told me misdemeanor crime of violence is too broad. It could include cutting up a credit card.’”
Giatras, though, said Lautenberg’s intent is not necessarily co-equal with Congress’ intent.
“The legislation that the senator introduced was not the legislation that was passed by Congress,” Giatras said, noting “the staunch opposition that was in the House, and the fact that his bill was going nowhere. This may have been his intended purpose with respect to what was introduced, but it was then the will of Congress” to pass the final version with different language from House lawmakers.
On Heller’s heels
Although the case does not turn on the Second Amendment, it does come on the heels of the court’s landmark decision in Heller v. D.C. finding gun ownership to be a personal right protected by the Constitution. Hayes is being closely watched by gun rights groups as well as domestic violence advocacy groups.
A decision is expected later this term.
Kimberly Atkins writes for Lawyers USA, a sister publication of The Daily Record. Questions or comments can be directed to the writer at [email protected]
Under an amendment to the Federal Gun Control Act, people who have been convicted of a “misdemeanor domestic violence offense” are barred from gun ownership. However, the 4th U.S. Circuit Court of Appeals held last year that the prohibition does not apply to a man who was convicted of misdemeanor battery, even though the victim was his wife.
That decision, which created a conflict between the 4th Circuit and nine others that have considered the question, was under review by the high court on Monday.
Arguments turned into a painstaking scrutiny of the muddled wording and punctuation of the amendment, which Justice Anthony Kennedy called “a mess.”
Justice Antonin Scalia, meanwhile, cautioned against reading too much into legislative intent.
“People are governed by the law that is passed, not by the law that Congress intended to pass,” Scalia said.
Even so, the attorneys and justices tried as best they could to determine the intent of the amendment’s author, Sen. Frank Lautenberg of New Jersey.
“Sen. Lautenberg specifically said in the legislative record [domestic abusers] are often charged as offenses like assault and battery, and we need to get at these offenses because these people should not have firearms,” said Nicole A. Saharsky, assistant to the solicitor general arguing on behalf of the government. “They should not put their families in that type of powder keg situation.”
But Troy N. Giatras of the Giatras Law Firm in Charleston, W. Va., disagreed. A broader version of the amendment was proposed and rejected by Congress, he noted.
“The government’s reading ignores the legislative compromise that led to the contested language; and, if adopted by this court, would rewrite the statute and hand one side the legislative victory that they were unable to achieve in Congress,” Giatras said.
Commas and clauses
The case stems from the 1993 conviction of Randy Edward Hayes under a West Virginia general battery statute for striking his then-wife.
In 2004, police responding to a domestic violence call involving Hayes and his girlfriend found an unloaded Winchester rifle under his bed.
Hayes pleaded guilty to violating the Federal Gun Control Act but preserved his right to appeal.
The 4th Circuit, which covers Maryland, North Carolina, South Carolina, Virginia and West Virginia, found that the statute did not apply to him. The Justice Department sought review by the high court.
On Monday, oral arguments centered on the language of the so-called Lautenberg Amendment, which defines a “misdemeanor crime of domestic violence” as:
an offense that (i) is a misdemeanor under Federal or State law; and (ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.
Saharsky argued that the most natural reading of the admittedly untidy language is that it includes general misdemeanors if the victim is a domestic partner.
“Nine Courts of Appeals have determined that the text does not require a domestic relationship to be an element to the predicate offense,” Saharsky argued. “That’s because the statute’s text uses only one element — using the singular word “element” — which relates to mode of aggression. It then introduces a new concept related to domestic relationship, using a comma and the word ‘committed.’ The word ‘committed’ naturally modifies the word offense.’ In common usage, a person commits an offense; he doesn’t commit a use or attempted use of physical force.”
The argument wasn’t an easy sell as the justices jumped into the thorny interpretation.
“You have the ‘that,’ and the ‘that’ applies to both (i) and (ii), and [‘committed’] is part of (ii),” Scalia said. “I think you’ve got to either say ‘that committed’ or put in an ‘is’ – ‘that is committed.’ … Yes, it’s not usual to talk about ‘committing a use of force,’ but it happens sometimes.”
Saharsky also argued that, under the 4th Circuit’s reading, the Lautenberg amendment would have no effect in states that don’t separate domestic violence from their criminal laws on assault and battery — including Lautenberg’s home state of New Jersey.
“If a lawyer reading this would not think that it applied, I don’t care what Congress intended,” Scalia said. “If the law doesn’t say that, the person is not governed by it.”
During Giatras’ argument, Justice Stephen Breyer tried to get to the bottom of Lautenberg’s aim.
“[First] Sen. Lautenberg put in the language to say, ‘I’ll tell you a group of people who shouldn’t have guns: the people who commit a crime of domestic violence,’” Breyer said. “Then he says after, ‘I changed that language a little. I’ll tell you why. Because somebody told me misdemeanor crime of violence is too broad. It could include cutting up a credit card.’”
Giatras, though, said Lautenberg’s intent is not necessarily co-equal with Congress’ intent.
“The legislation that the senator introduced was not the legislation that was passed by Congress,” Giatras said, noting “the staunch opposition that was in the House, and the fact that his bill was going nowhere. This may have been his intended purpose with respect to what was introduced, but it was then the will of Congress” to pass the final version with different language from House lawmakers.
On Heller’s heels
Although the case does not turn on the Second Amendment, it does come on the heels of the court’s landmark decision in Heller v. D.C. finding gun ownership to be a personal right protected by the Constitution. Hayes is being closely watched by gun rights groups as well as domestic violence advocacy groups.
A decision is expected later this term.
Kimberly Atkins writes for Lawyers USA, a sister publication of The Daily Record. Questions or comments can be directed to the writer at [email protected]
