<< SCOTUS's Roads Not Taken | Main | So Much for the FBI's Independence >>


Federal Gun Law and Misdemeanor Domestic Violence

| 3 Comments
One of the oddities of federal gun law is that the right to bear arms is generally taken away only for felonies, but domestic violence is treated specially, and the right to own a gun can be taken away for a misdemeanor.

A recurring problem in both gun possession law and recidivist sentencing is dealing with the wide variety of ways that crimes are defined in the 50 states and handful of almost-states that make up our federal republic.  Yesterday, the U.S. Supreme Court took up the "misdemeanor crime of domestic violence" question in Voisine v. United States, No. 14-10154.  Amy Howe has this post at SCOTUSblog.

Counsel for the defendants asked the Court to take two questions:

1. Does a misdemeanor crime with the mens rea of recklessness qualify as a "misdemeanor crime of domestic violence" as defined by 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9)?

2. Are 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9) unconstitutional under the Second, Fifth, and Sixth Amendments and the Ex Post Facto Clause of the United States Constitution?
Mens rea means guilty mental state, an issue we discussed last term in relation to the Elonis case.  See, e.g., this post.

The high court took the statutory question, number 1, but said "fuggetaboutit" to the constitutional question, number 2.  No treat for Second Amendment fans this Halloween.

3 Comments

Since guns are part of an inherent right to self-defense, there should be no disability for misdemeanants who serve their sentences. Additionally, even felony offenders should, in most cases, have their rights automatically restored. The real punishment should come when people use guns to commit crime or possess them during crime.

Just curious, federalist: if someone sells pot in his kitchen while having a gun in his bedroom, do you think this should count as an extra (and serious) crime? Federal law provides for a mandatory 5 year imprisonment if a jury concludes that the gun facilitated the drug crime. Is that fine by you?

How about if someone hits his wife (a clear violent assault) in the bedroom while having a gun on his person?

I raise these points because just what it means to possess a gun during a crime is often in the eye of the beholder (and Weldon Angelos is serving 55 years in federal prison based on the facts somewhat comparable to those suggested above).

Doug, I think a lot of these things have to do with the facts and circumstances of the particular crime. Did Angelos get a raw deal? Perhaps he did---but remember, there are a ton of things that go into a sentence--was there a plea, how strong was the evidence, is the issue a hot button for a particular prosecutor--whatever one may think about the proprieties of all this--the fact is that cannot be eliminated from the system. But you seem to think that outlier outcomes like Angelos' fundamentally undercut MMs, and that case, it seems to me, has hardly been made. Certainly, legislatures have the right to think that guns and drug deals don't mix and that any possible unfairness is a price to be paid for dealing with that issue, given, as you indicate, use of a gun in connection with a deal is somewhat a nebulous concept.

Ultimately, Doug, there is going to be discretion in many places in a criminal justice system, and sometimes, the hammer drops where maybe it would have been better dropped elsewhere, but if we take too light an approach (from a law standpoint), there are predictably bad consequences.

As for assaulting a wife while armed---i don't know if a slap always deserves 5 years. I guess I'd have to know a little more.

Keep in mind, too, Doug, when setting punishments, legislatures can take into account the fact that serious dealers using guns in drug deals probably have a significant history of uncharged misconduct. And while that cannot impact guilt/innocence, it can be the basis of a legislative determination on a MM.

Leave a comment

Monthly Archives