By Karen MacNutt

In the fall of 2001 the Fifth United States Circuit Court of Appeals handed down its decision in the United States v. Emerson case, (270 F. 3d 203, 5th Cir.). Using the customary rules of statutory interpretation, the court wrote that the word “people” in the 2nd Amendment to the Constitution meant the individual people, nor the “states.” The modifying clause, “necessary to a well regulated militia,” the court said, was an explanation of why the people had the right to keep and bear arms, not a limitation on the people. Last, the court explained, only individual citizens have rights, not governments. Although the Court held all these things, it also held that the rights set forth in the Second Amendment were subject to limitations. It upheld the law prohibiting people with domestic relations restraining orders from possessing guns. That law, the court felt, was a reasonable restriction on the right to possess a gun.

The Court noted that before a restraining order is granted, state law required there be a hearing with notice and an opportunity to present a defense. The Court talked about the traditional standards for granting a restraining order. The state court should have found that irreparable harm would occur if a temporary restraining order were not granted and the state court should have found that real harm was likely, not speculative. The Federal Court assumed this would be the case even though the lower court in Emerson did not make express finding as to those issues. Last, although the Federal Court assumed all this would take place in the state court to insure due process, the Federal Court also stated it would not examine the state court proceeding to determine if these standards had actually been met.

The Federal Court system is not, and was never intended to be, a court system of general jurisdiction. It has no experience as a divorce or family court. It only hears certain types of cases that involve matters of Federal law or federally protected rights. Emerson involved the interpretation of Federal law in the Fifth U.S. Circuit where the case was heard.

The Federal Court system is not as uniform as non-lawyers would think. At the lowest level are the Federal District Courts. An appeal from the District Court is to the Circuit Court of Appeals for the District Court’s geographic district. There are eleven different Circuit Courts of Appeal and a Circuit Court for Washington, D. C. Each is capable of making decisions on their own. They are not bound by the decisions of other Circuit Courts. Although the Supreme Court is the highest Federal court, except in very limited cases, it is not required to hear appeals from the lower Federal Courts. Very few cases on appeal are chosen for review by the Supreme Court.

An appeal to the Supreme Court from a lower Federal Court is called a” writ of certiorari.” It is a petition to the high court to review the actions of the lower court based on a claim of error of law. If the Supreme Court declines to take your case, lawyers say that, “Cert. was denied.” Often the Supreme Court makes no comment when it denies certiorari. As the Supreme Court can refuse to take an appeal for any number of reasons unrelated to the merits of a case, the denial of certiorari is not a statement that the high court would have upheld the lower court if it had taken the case. Until the Supreme Court rules on an issue, however, the lower court opinion stands.

It is possible for more than one Circuit Court of Appeals to rule on the same issue in a different manner. If this happens, the application of law stops being uniform throughout the United States because the area within each Circuit will apply the law in accordance with its own rulings.

When that happens, it becomes more likely that the Supreme Court will take a case it feels sets out the issues which different Circuits disagree. The high court will then rule on the issues to once again establish a uniformity in the law throughout the United States.

An example of how this works is the case of Caron v. United States, 524 U.S. 308 (J 999). Caron involved an interpretation of the Federal law which removes the Federal disability to own firearms if a person’s rights have been restored by state law. Caron had been convicted of a disqualifying offense. His right to own a rifle or shotgun was restored by the state but his right to own a handgun was not. Caron obtained a rifle using his state license. He was charged under Federal law for having the gun illegally. Caron argued that his right to own a rifle had been restored by the state so that he should not be disqualified by Federal law. The First Circuit Court supported his position. The Circuits were divided on the issue. Some had ruled that a partial restoration of rights by a state did not remove the Federal disqualification. The U.S. attorney argued that Caron was prohibited from having a rifle under Federal law because the state had only restored part of his rights. The U.S. Supreme Court took the appeal. It ruled that Caron could not have a gun because the state had not restored all his rights to have guns therefore the Federal disqualification was not removed.

Just because you are issued a state license to carry a gun or a hunting license, does not mean you are in compliance with Federal law. If you have a disqualifying offense and your state rights have not been fully restored, you are disqualified under Federal law from possessil1g a gun and you will be prosecuted.

The Emerson case upheld Emerson’s prosecution for being in possession of a gun while there was a domestic relations restraining order in force against him. This was so even though the order made no mention of his not being able to have a gun. The court in Emerson acknowledged the Second Amendment gave rights to individuals but stated that the right was not absolute. The right was subject to reasonable restrictions. The Court in Emerson made assumptions about the fairness of the process by which such orders are issued. That assumption flies in the face of actual practice in which domestic relations restraining orders are often granted ex parte (only one party being present), with no notice, and on the flimsiest evidence. In some areas, they have become an easy method of eviction.

There are two Federal disqualifications for owning firearms which relate to alleged domestic abuse One disqualification makes it un lawful to be in possession of a gun if there is a domestic relations restraining order outstanding against you. The other makes it illegal for you to possess a gun if you have a misdemeanor criminal conviction for the use of violence or the threatened use of violence against certain household at family members including an intimate partner or child. Domestic relations restraining orders are a creation of state law.

The various states have different definitions as to who might be protected by a domestic relations restraining order. Some expand the orders to include siblings and people with a dating relationship.

The federal law which created the disqualification was passed in 1996 and is commonly called the Lautenberg Act after the senator who drafted it. Unlike most firearms disqualifications, the Lautenberg Act applies to the police and military even while in performance of their official duties. It is also retroactive in that It uses convictions which occurred prior to its passage, as well as those which occurred after its passage, to disqualify people. Police or servicemen or women with this type of conviction generally face the loss of their job.

Lautenberg creates a lifetime disqualification for possession of a gun if you have been convicted of a misdemeanor act of violence against certain members of your family or household. It has been challenged unsuccessfully on a number of grounds.

One of the first challenges was the case of Fraternal Order of Police v United States, 152 F. 3d 998 (D.C. Cir 1998) Rehg granted 159 F. 3d 1362. At first, it gained success by challenging the law on the grounds that the law lacked a rational basis to the legislative purpose. What sense did it make to allow police officers with a more serious felony domestic violence conviction to have a gun while on duty but not officers with the less serious misdemeanor conviction? Initially the Court adopted this argument but on reconsideration, the court overruled itself and found that there was a rational basis for the law.

The “rational basis” test is used by the court to judge laws that do not affect Constitutional rights. The test was also applied in Gillespie v City of Indianapolis, 7th Cir., 185 F. 3d 693, cert. Den. 120 S. Ct. 934 (1999). The Court ruled that the right to own a firearm was not a fundamental right and therefore applied “the rational basis” test to the remaining claims.

Most crimes against the person of another (assault, for example) do not require the government to prove any particular relationship between the perpetrator and the victim. The crime of assault consists of placing another in fear of an unjustified touching.

Those challenging Lautenberg tried to argue that the underlying offense triggering Lautenberg should not count unless that offense required the state to prove the victim was in one of the protected classes. After all, in a criminal case the burden is on the government to prove each element of the crime beyond a reasonable doubt. The U.S. District Court for Massachusetts ruled for the government saying the family or household affiliation required by Lautenberg did not have to be proven at the trial of the underlying offense if the facts of the case showed the relationship. (U.S. v Meade, (D. Mass.) 986 F. Supp. 66, affirmed 175 F. 3d 215 (1st Cir. 1997.)

That is, the Court seemed to be saying that it would accept the allegations of a relationship set out in police records even though those allegations were not required to have been proven in the trial of the underlying offense. This is a sharp departure from the norm of criminal law. The court is assuming an essential element of the offense.

What if the victim were not a family member but someone who was mentally disturbed and fantasized a relationship? That status would be irrelevant to a charge of assault but it is very relevant to the application of the Laurenberg disqualification. In Meade the relationship was clear, but what would happen if the relationship had been seriously contested?

Most states have laws making an assault and battery illegal. Is a person with an assault conviction disqualified by Lautenberg if on the fact of the record it can not be determined that some act of violence had occurred? An assault is simply an unwanted touching, a kiss could be an assault. The language in the Lautenberg Act requires some act or threat of violence.

It was argued that Lautenberg should not apply to a case of simple assault as “violence,” which is called for in the Lautenberg Act, is not an element of the crime of assault.

The Federal District Court of Iowa stated that violence did not have to be an element of the state crime to qualify for a Lautenberg disqualification as long as the facts behind the assault conviction would support a finding that violence occurred. (U.s. v. Smith, (N.D. Iowa 1997) 964 F. Supp. 286, affirmed 171 F. 3d 617.)

The Federal District Court in Kansas stated that Lautenberg was not a violation of the commerce clause. That is, Congress claimed its power to enact the Lautenberg Act arose out of its power to regulate commerce. It was argued that family disputes were not inters rate commerce. The Court, in an opinion that strains the imagination, disagreed saying that domestic disputes affected interstate commerce. (US. v. Boyd, ( D. Kan. 1999) 52 F. Supp. 2d 1233, affirmed 211 F.3rd 1279.)

People have argued that they did not know they were disqualified from owning guns under Lautenberg. Ignorance of the law is not a defense. All a person needs to know is that they were in possession of a gun and that they either had an outstanding restraining order or a conviction. That is, they did not have to know that the restraining order or conviction was disqualifying to be convicted under Lautenberg.

There is some case law, however, that holds that a person must have had an opportunity to be heard and must know that, in the case of a restraining order, the restraining order had issued. The restraining order does not have to state that the person’s right to have a gun has been suspended. It is not clear what would happen if the restraining order specifically stated that it was not to result in a firearms disqualification. Considering the tenor of the prosecutions under Lautenberg, it is likely the Federal prosecutors would ignore the state court’s order allowing possession.

The Lautenberg Act was challenged by people who said that they had bought their gun prior to the passage of the act and their conviction predated the act. That is, at the time they bought their gun it was perfectly legal. They had two claims. First, they said that the act, as applied to them, was an ex post facto (making the thing illegal after the fact) act which is prohibited by the Constitution. Not so said the 4th Circuit Court of Appeals. (US. v. Mitchell, 209 F. 3rd 319 (4th Cir. 200?). To be ex post facto, the act must apply to events which occurred prior to the passage of the act. This act, said the Court, applies to the continued possession of a gun after the passage of the act. The court also found the other two prongs of the ex post facto test did not apply. That is, the act did not increase the penalty of the prior conviction nor did it disadvantage the offender by altering the definition of the criminal conduct.

The U.S. District Court in Nebraska disagreed, Us. v Fiske, (D. Neb. 1999) 58 F. Supp 2d 1071.

Any person who values the ownership of a gun would have a hard time agreeing with the 4th Circuit on its last two points. Clearly the nature of the crime has been altered after the fact as the Courts are now required to find additional elements in the crimes of assault and battery; that is, violence and a family or intimate relationship. Those additional elements act as an aggravation of the underlying crime which results in a lifetime disqualification that would not otherwise occur. Certainly a lifetime banishment from an activity is a punishment.

This is especially the case when the authorities who originally considered the case could have charged a more serious offense, such as assault with a deadly weapon or assault with intent to do grievous harm, which would have converted the offense into a felony. Felony convictions result in a lifetime disqualification. Indeed, the primary difference between felonies and misdemeanors is that felonies have civil disqualifications (exclusions from voting, juries, certain jobs, firearms ownership etc.) and misdemeanors do not have disqualifications. Lautenberg now makes certain misdemeanors look like felonies. The results of a conviction will cause a lifetime disqualification for firearms ownership. It also causes a lifetime exclusion from certain other rights and privileges of citizenship including the right to serve in the armed forces, the right to apply for certain public jobs, and the privilege of hunting.

The disqualification is mandatory.

Even if the judge who heard the case felt the disqualification was not justified, the Federal law requires the result.

There are many who in the past agreed to plead guilty to a simple assault and paid a small fine after being told by competent lawyers that such a plea would not result in a disqualification. There are undoubtedly many who would not have entered a plea but who would have fought the accusations if they had known that a severe civil disqualification would result. Clearly this is a change to the disadvantage of the defendant.

For the most part, the Courts looking at the challenges to Lautenberg have applied the so-called “rational basis” test. That is, does the law have some rational basis to the ills trying to be addressed by Congress? This is the standard applied when no Constitutional right is involved.

If the statements in the Emerson case hold on appeal to the US Supreme Court, that the right to own a gun is a personal right recognized by the Constitution, then the rational basis test is the wrong standard. When Constitutional rights are involved, the courts should apply a strict scrutiny test. They should look to see if the government has a compelling interest in achieving its goals using the means set out in the legislation under question. They will consider whether or not there is a less intrusive way to accomplish the same goals.

The protection of all people from violence is a worthy goal. But the automatic lifetime legislative banishment of someone from a valued Constitutional right for a transgression that may be very minor, is not right. Broad-brush application of mandatory penalties are fashionable at this point in time, but they are as wrong as the limp policies that put hardened criminals back onto our streets.

Law without justice is oppression.

To establish justice, we must be flexible in our response and we must be fair.

This article was reprinted from Women&Guns July-Aug, 2002, Copyright © 2002, Karen MacNutt