Supreme Court's First Post-Heller Gun Case Decided, In Favor of Gun Possession Prohibitions

Brian Doherty | February 25, 2009

Except that, while the case involved guns, it wasn't really a gun-rights case, at least not as presented to the Court. We can argue about the real issues that really underlay the whole thing, but courts have to deal with the specific legal issues presented to them by the parties and by lower courts.

Yesterday in the case of United States v. Hayes, the Supreme Court did indeed uphold a wide reading of a federal regulation that prohibits anyone convicted of a domestic violence charge from owning a gun. And that decision will ensure that more people remain legally prohibited from owning guns, with the Second Amendment not applicable.

Basically, what was at issue in Hayes is whether the statute under which you were arrested actually had to specifically state as an element of the crime that you had a domestic relationship with the victim, or was it enough that you actually did have such a relationship?

Most courts have said the latter; in an earlier appeal the 4th Circuit said the former, and overturned Hayes' 2005 conviction for possessing firearms after having been convicted of a misdemeanor crime of domestic violence in 1994 in West Virginia. The Supreme Court has now reversed the 4th Circuit.

From the Los Angeles Times' account:

In 1968, Congress made it illegal for felons to own a gun in the United States. Lawmakers in 1996 extended this ban to include those convicted of "a misdemeanor crime of domestic violence."

Until Tuesday, however, it had been unclear who is covered by this provision. Only about half the states have laws that make domestic violence a crime. Across the nation, prosecutors often charge offenders with an assault or battery.

Two years ago, the U.S. 4th Circuit Court of Appeals ruled that the federal gun ban did not extend to state charges involving assault or battery. Randy Hayes, a West Virginia man, had challenged the federal law after he was convicted of illegal gun possession. He was found with three guns in his house in 2004. Ten years earlier, he had pleaded guilty to misdemeanor battery against his then-wife.

Ruling for Hayes, the appeals court said this "generic battery" conviction did not count as a "misdemeanor crime of domestic violence," and it freed him from the federal charges.

The Supreme Court overturned that ruling Tuesday in United States vs. Hayes and restored the broad view of the federal law. Ginsburg's opinion said the ban on gun ownership extends to any person who has been convicted of any crime involving "physical force or the threatened use of a deadly weapon," so long as there was a "domestic relationship" between the perpetrator and the victim.

Antonin Scalia and Chief Justice Roberts dissented. It's all argued on complicated technicalities of this variety, quoted from Roberts' dissent, and not at all on larger issues of political or legal philosophy. Quoted for truth!

The grammatical rule of the last antecedent indicates that the domestic relationship is a required element of the predicate offense. That rule instructs that “a limiting clause or phrase . . . should ordinarily be read as modifying only the noun or phrase that it immediately follows.” Barnhart v. Thomas, 540 U. S. 20, 26 (2003). Pursuant to that rule, the “committed by” phrase in clause (ii) is best read to modify the preceding phrase “the use or attempted use of physical force, or the threatened use of a deadly weapon.” See 482 F. 3d, at 754–755. By not following the usual grammatical rule, the majority’s reading requires jumping over two line breaks, clause (i), a semicolon, and the first portion of clause (ii) to reach the more distant antecedent (“offense”). Due to the floating “that” after “offense,” if “committed by” modified “offense” the text would read “offense that committed by.”

Now, the Second Amendment and the underlying validity of cutting off an entire class of people from gun possession rights was not on the table in this technical case, though some newspaper headlines are talking about "Supreme Court upholding gun control laws." Kind of, but not really the point of the case. Because it's not at issue, neither the decision nor the dissent mention the Second Amendment or last year's Heller at all--and that's pretty much as it had to be.

It is worth remember that even as Heller defined the Second Amendment right as both existing and applying to individuals, it stated upfront how limited that right might end up being. As Scalia wrote in the Heller decision:

The Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Thus, even if Mr. Hayes' Second Amendment rights had been brought up in this case such that the Court had to consider it, it probably wouldn't have helped him much.

ScotusWiki has a good, but detailed and complicated, explanation of what specifically was at stake in Hayes and its history.

Read the full decision here. And check out Gun Control on Trial, my new book on the history of the Heller case and the Supreme Court's take on the Second Amendment

Comments

|2.25.09 @ 9:47PM|#

antecedant wha!? will I be the only comment on this thread? I think so...

SIV|2.25.09 @ 10:14PM|#

Convicted in 1994
stripped of rights by a law passed in 1996
how do you say ex post facto in Latin?
I assume that wasn't part of the question at issue

We can argue about the real issues that really underlay the whole thing, but courts have to deal with the specific legal issues presented to them by the parties and by lower courts.

I wish Reason editors would point this out more often in posts "analyzing" SCOTUS decisions.Balko in particular focuses on the outcome more than the question of law at hand.

cuernimus|2.25.09 @ 10:14PM|#

indicatesthat...attempteduse...theusual...requiresjumping...distantantecedent

I didn't know that LoneWacko was a transcriptionist by trade. Is there mention of MexicanConspiracies in the full text?

Hogan|2.25.09 @ 10:22PM|#

fuck you cuernimus for preemptively stealing my comment

Brian Doherty|2.25.09 @ 10:27PM|#

I apologize to both of you for going back and fixing the bad line breaks in the Roberts dissent quote and making the above jokes incomprehensible to later readers.

MNG|2.25.09 @ 10:29PM|#

"Convicted in 1994
stripped of rights by a law passed in 1996
how do you say ex post facto in Latin?"

I agree with SIV here, how did that past muster?

|2.25.09 @ 10:31PM|#

I agree with SIV here, how did that past muster?

Because he was caught with the guns in 2004. It sucks, but it's not ex post facto.

cuernimus|2.25.09 @ 10:36PM|#

how do you say ex post facto in Latin?

That decision is base primarily on whether not being able to possess a firearm is considered punishment. The Supremes have allowed for compulsory registration of sex offenders to have someone keep track of their whereabouts because it is "not a punishment." So a conservative court will say yes, a liberal one will say no.

fuck you cuernimus for preemptively stealing my comment

Proper Hit & Run etiquette dictates you phrase your complaint as "Yo, fuck cuernimus for preemptively stealing my comment"

SIV|2.25.09 @ 10:39PM|#

Did it work that way with the 1968 GCA?
Were people convicted of felonies in the 40s and 50s automatically stripped of their gun rights in 1968?

Hogan|2.25.09 @ 10:43PM|#

Yo, fuck BrianDoherty

cuernimus|2.25.09 @ 10:44PM|#

No clue, my reasoning came from here.

SIV|2.25.09 @ 10:47PM|#

Good ol' wikipedia:

Another example is the so-called Lautenberg law where firearms prohibitions were imposed on those convicted of misdemeanor domestic violence offenses and subjects of restraining orders (which do not require a criminal conviction). These individuals can now be sentenced to up to 10 years in a federal prison for possession of a firearm, regardless of whether or not the weapon was legally possessed at the time the law was passed. Among those that it is claimed the law has affected is a father who was convicted of a misdemeanor of child abuse despite claims that he had only spanked his child, since anyone convicted of child abuse now faces a lifetime firearms prohibition. The law has been legally upheld because it is considered regulatory, not punitive - it is a status offense.

Yet another example of why we should be rid of these legislatively enacted "law" things.

Warty|2.25.09 @ 10:49PM|#

Shut the fuck up, Supreme Court.

|2.25.09 @ 10:56PM|#

Good analysis pointing out that the Court does not rule on things that weren't brought up.

So, speaking of gun rights, Obama to Seek New Assault Weapons Ban.

Brian Doherty, do you still stand by your article a month ago approvingly quoting analysis that "People can forget about a new "assault weapon" ban-that one is not getting any traction?"

|2.25.09 @ 11:09PM|#

Let me get this straight... so if you are convicted of a misdemeanor crime of assault, battery or threatening anyone you remotely have a 'domestic' relationship with, then your constitutional right to own a firearm is revoked? that is bunk. who decides what relationships are 'domestic' and which ones are not. the government will try to apply that 'domestic' part to pretty much any 'relationship' between two people, except in the case where the two people are complete strangers. And even then i bet they would try to apply the term. i think ginsberg and the rest who concurred are loosing their damn minds. what crime will they add next? misdemeanor drug possession? economic crimes? the day is coming where the only people able to own firearms are those who have never committed any crime whatsoever. And considering the government is into criminalizing everything, adding hundreds of laws to the books each year, that is going to be a fairly large segment of the american population.

cuernimus|2.25.09 @ 11:16PM|#

So, speaking of gun rights, Obama to Seek New Assault Weapons Ban.

A pro-gun control Attorney General saying he wants an assault weapons ban in an article that claims the reason is a result of Mexican cartels using fully automatic weapons and grenades that came from the US, isn't the same as said ban flying through Congress.

cuernimus|2.25.09 @ 11:20PM|#

From said article:

"It's something, as I said, that the president talked about during the campaign," he said. "There are obviously a number of things that are -- that have been taking up a substantial amount of his time, and so, I'm not sure exactly what the sequencing will be." (italics mine)

Seems poor Eric isn't being kept in the loop on what Obama's campaign promises amount to.

¢|2.25.09 @ 11:46PM|#

I remember an "Even if I wanted to take your guns away, I don't have the votes" that was weird, like an infamous rapist denying the existence of rape, then saying "And even if I wanted to rape you, I don't have a boner. See?" and grinding a huge boner in your face.

(Of course, I use this creepy analogy only because he's Irish.)

|2.25.09 @ 11:55PM|#

isn't the same as said ban flying through Congress.

Absolutely, though at the same time I'm not certain what the political reward is for Holder and Obama in bringing it up.

SIV|2.26.09 @ 12:09AM|#

Absolutely, though at the same time I'm not certain what the political reward is for Holder and Obama in bringing it up.

Punishing their enemies?
That always seems to trump "political expediency"

Brian Doherty|2.26.09 @ 12:17AM|#

John T---Yes, I still believe that we won't see a renewed assault weapon ban. It isn't news that Obama wants one; I just don't think Congress is willing to risk giving it to him during his administration. I'll (sadly) admit I was wrong if it turns out I am....

SIV|2.26.09 @ 12:18AM|#

The AR market was calming quite a bit despite huge wait times/backlog for nicer factory rifles and components.Maybe the threat is just "economic stimulus". I don't see how an AWB is compatible with the "in common use" language of Heller, but then I do live in the South.

|2.26.09 @ 12:58AM|#

Because he was caught with the guns in 2004. It sucks, but it's not ex post facto.

Which points up another technical problem - when did he purchase the guns vice just possessing them. The whole Section 922 is based on regulation of federally licensed gun dealers (and who they are prohibited from selling guns to) - except for the Lautenberg Amendment, which pertains to possession. The whole framework of this law is predicated on 'interstate commerce' in firearms; the DV provision is pure police power. A roughly contemporaneous federal law (Violence Against Women Act) was struck down for failure to have a viable connection to interstate commerce. Of course, this quaint notion begs questioning of Raich, in which no scheme of federal law exceeds the infinite reach of regulating interstate commerce.

|2.26.09 @ 1:37AM|#

The more the Supreme Court and Congress ignores the Constitution the less we, as citizens, are bound by their decisions.

wingnutx|2.26.09 @ 1:37AM|#

hang on, this is going to get ugly:

The Obama administration will seek to reinstate the assault weapons ban that expired in 2004 during the Bush administration, Attorney General Eric Holder said today.

"As President Obama indicated during the campaign, there are just a few gun-related changes that we would like to make, and among them would be to reinstitute the ban on the sale of assault weapons," Holder told reporters.

Holder said that putting the ban back in place would not only be a positive move by the United States, it would help cut down on the flow of guns going across the border into Mexico, which is struggling with heavy violence among drug cartels along the border.

"I think that will have a positive impact in Mexico, at a minimum." Holder said at a news conference on the arrest of more than 700 people in a drug enforcement crackdown on Mexican drug cartels operating in the U.S.

http://abcnews.go.com/Politics/story?id=6960824&page=1

ABC|2.26.09 @ 3:56AM|#

You could drive a tank through Heller. Speaking of which, tanks are in pretty common use. So are landmines in Cambodia. What´s good enough for Cambodia ought to be good enough for Merika.

|2.26.09 @ 7:12AM|#

The neat thing about Heller is that it legitimizes the licensing of constitutional rights as a prior condition to their being exercised. Journalism licenses, anyone?

|2.26.09 @ 8:27AM|#

Journalism licenses, anyone?

Nah, they'll just give bailouts to their journalist supporters and let their opponents go under.

alisa|2.26.09 @ 9:02AM|#

"Domestic relationship" is a term that's explicitly defined by states with domestic violence laws. Domestic relationships include spouses, former spouses, persons who share a common child together, persons currently residing together or those that have previously shared a domestic living arrangement together. It's not easily extended to just anyone.

Not being a lawyer -- just applying logic -- this makes sense. The law says you can't own a gun if you have been "convicted of a misdemeanor crime of domestic violence." Would it make sense for this federal law to apply to wife-beaters in some states but not to wife-beaters in others?

|2.26.09 @ 10:09AM|#

Since domestic violence is routinely charged at almost every divorce hearing, and restarining orders applied for as a routine matter of custody battles (you don't need evidence to prove the man is a danger) this is the first step to extending gun prohibitions against any man who's been divorced. That's a hell of a lot.

|2.26.09 @ 10:09AM|#

Well, technically, SCOTUS has to decide the issues framed for them by the lower courts, but nothing prevents them from deciding other issues/on other grounds sua sponte. My vague recollection is that the seminal Marbury case was decided that way.

A thought experiment: If this case had come exactly the way it did, only the prohibition was on, say, exercising First Amendment rights in some way, that the Court wouldn't have found a way to decide on First Amendment grounds.

Really, though, this just demonstrates that this Court has no real commitment to strong reading of the 2A. Its tattooed all over Heller's ass, and this will be the first in a long line of cases upholding just about every restriction on the right to keep and bear arms imaginable.

Including the assault weapons ban.

T|2.26.09 @ 10:30AM|#

Would it make sense for this federal law to apply to wife-beaters in some states but not to wife-beaters in others?

Does it make sense for a federal law on gun possession by those convicted of misdemeanor charges to exist in the first place? I'd say no.

|2.26.09 @ 11:18AM|#

I say we repeal the second amendment. That would shut you gun fetishists up.

Think about the wife beaters!

|2.26.09 @ 12:09PM|#

IANAL, so I'll refrain from discussing the legal minutiae of the decision.

When a person exits the justice system, he or she is morally entitled to all of the rights of free citizens

|2.26.09 @ 12:10PM|#

including the rights to vote and bear arms.

(danged HTML errors)

alisa|2.26.09 @ 12:52PM|#

T: oh, yes, that's true. I'm alert to that. I'm with J sub D -- the man has presumably been punished once, and now he has the same rights as anyone else, including the right to his gun. Maybe things like this will get struck down someday. I can hope. But it requires us to defend the rights of unsavory individuals, which is always politically difficult.

Stagman|2.26.09 @ 1:35PM|#

As someone who worked in a misdemeanor prosecution office, I can say that who gets convicted of a domestic violence crime is very arbitrary. Often the worst cases of misdemeanor domestic violence result in the case being dismissed because the victim, who is the defendant's wife/girlfriend/babymomma, will not show up to testify because they are still with the domestic abuser. They've been around the block enough to know that because misdemeanors as so low level, the court will never bother to enforce the subpoena against the wife. So the defendant walks away scott free while the victim is watching Jerry Springer in their apartment. On the other hand, the ones where the neighbors called about a drunken fight between college roommates (which technically counts as domestic violence) usually get convicted. The defendant roommate either takes the plea bargain or the "victim" roommate shows up for the trial because, being a good citizen, he respects an order by the court to show up.

So this law basically is very ineffective in achieving it's goals and tramples on the rights of people who it was not intended to effect.

|2.26.09 @ 2:12PM|#

So this law basically is very ineffective in achieving it's goals and tramples on the rights of people who it was not intended to effect.

If the real goal is the expansion of the Total State, then this law is working perfectly; by failing to achieve its stated goal, it lays the groundwork for its own expansion.

|2.26.09 @ 3:20PM|#

I don't see how you can possibly state this is not Ex Post Facto. The man in question was convicted in 1994, two years before this dreadful law saw the light of day. Then he is arrested in 2004 for possession of firearms. Sorry, this is Ex Post Facto no matter how you slice it, otherwise he would have had to have been convicted in 1996 or later for this "law" to apply.

|2.26.09 @ 9:12PM|#

PersonFromPorlock | February 26, 2009, 7:12am | # wrote:

"The neat thing about Heller is that it legitimizes the licensing of constitutional rights as a prior condition to their being exercised. Journalism licenses, anyone?"

It really didn't. The case said gun licensing laws were O.K., as long as they didn't amount to taking away your right to a gun. They did NOT address licenses regarding any other constitutional rights, and it's incorrect to expand their holding beyond what they said. The court treats different amendments differently - always has.

Michael Ejercito|2.26.09 @ 11:20PM|#

When a person exits the justice system, he or she is morally entitled to all of the rights of free citizens

Why?

What would be wrong with rebuilding and reopening Manzanar and requiring people convicted of domestic violence to live there, no matter how long ago the conviction was?