Congress slides dangerously far from the Constitution

by Alan Korwin

The new federal Gun Ban For Individuals Convicted Of A Misdemeanor Crime Of Domestic Violence removes civil rights for anyone who violates it, or anyone who violated its requirements before it was passed. Congress has exceeded its delegated authority here, even though the intention is a noble one.

The new law increases the list of prohibited possessors people who may not have, ship, transport, or get firearms or ammunition under federal law. Anyone ever convicted of a minor violation involving use or attempted use of physical force, or threatened use of a deadly weapon, among family members (spouse, parent, guardian, cohabiter, etc.), is now prohibited.

This marks the first time in history that a misdemeanor offense denies a constitutional right. The law is retroactive, affecting an unknown number of people, and no provision is made for the firearms such women and men might already possess. Firearms possession by a prohibited possessor is a five year federal felony.

A number of narrow conditions may exempt you from this law, such as whether you were represented by an attorney, the type of trial and plea, an expungement or set aside, or a pardon or restoration of civil rights. Misdemeanors can be handled by courts not-of-record, so some of these determinations may be impossible.

The current congressional practice of placing unrelated laws in larger acts, in order to get them passed without debate (or even unnoticed), has raised concerns among many observers. Politicians who operate by skulking around this way should be shamed from office. This law, sometimes referred to as the Lautenberg amendment, is an extreme example of such a practice, catching firearms-rights advocates and adversaries by surprise.

The law is drafted broadly, affecting sworn police officers nationwide, the armed forces, and agencies such as the FBI, CIA, Secret Service, Forest Service and others, most of whom are accustomed to being exempted from such laws. Many of these groups are currently battling to get themselves exempted from the law. They don t believe they should be prevented from defending themselves or others because of prior minor infractions. Police agencies nationwide have laid off officers who are in violation.

So many problems exist with respect to this legislation that is has raised concerns unlike any recent act of Congress. Indeed, some members reportedly were told before voting that this language had been deleted from the final version, and the vote was held before copies of the 2,000 page act were available for review. Experts close to the issues cite numerous constitutional conflicts.

Eight different guarantees in the Constitution are violated by the Misdemeanor Gun Ban, aka The Lautenberg Amendment:

    1 - it is ex post facto a law passed after the fact to affect your former actions
    (banned by Art. 1, Sec. 9);
    2 - it impacts the right to keep and bear arms (2nd Amendment);
    3 - legally owned property becomes subject to automatic seizure
    (banned by the 4th Amendment);
    4 - it holds people accountable to a felony without a Grand Jury indictment, represents a second punishment for a single offense creating a double jeopardy, and it requires dispossession of personal property without compensation or due process (all prohibited by the 5th Amendment);
    5 - it denies your right to be informed of an accusation, and to counsel and a public jury trial, because an existing misdemeanor now automatically creates a federal felony (prohibited by the 6th Amendment);
    6 - using a misdemeanor (a minor infraction) instead of a felony (a serious crime) to deny civil rights may be cruel and unusual punishment (8th Amendment);
    7 - family conflicts, historically an issue at the state level, becomes federalized (prohibited by the 10th Amendment); and
    8 - it denies due process, abridges the rights of U.S. citizens by state law, and denies equal protection under the law. (violates 14th Amendment guarantees).

Domestic violence does not have a single definition at the state level. Some states laws require the arrest of at least one party if the police respond to an apparent domestic violence report. This raises all the issues of judicial process and plea bargaining after an arrest.

Domestic-violence pleas have been a standard ploy to validate divorces for decades. A parent who pays a small fine rather than endure a long costly trial can now be charged with a federal felony. These charges now deny your right to keep and bear arms, and may stop you from voting, holding office and more.

An analogy to cars crystallizes this law s affects. It is as if a former speeding ticket were now grounds for felony arrest if you own a car or gasoline. When a law is scrutinized for constitutionality it is typically held up to one constitutional provision. The eight constitutional issues in this short piece of legislation may set a record. Our Congress has moved too far from its charter.

Alan Korwin is a full-time free-lance writer and author of seven books on gun law, including Gun Laws of America Every Federal Gun Law on the Books with Plain English Summaries. Permission to reprint this article is granted to non-profit organizations, provided credit is given to Alan Korwin, Bloomfield Press, Phoenix, AZ. All others, just call us.

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