Guns, Domestic Violence, and Legal Absurdity
There are also a lot of really brutal, nasty, ugly people out there: usually, but not always, guys. Not only should they not be trusted with guns — they shouldn’t be trusted with hands. A recent decision of the United States 4th Circuit Court of Appeals, U.S. v. Chester (2010), perfectly captures this situation. Chester tells us we may be posing the wrong question when we ask whether domestic violence misdemeanors should be lifetime firearms disqualifiers.
Mr. Chester was convicted of domestic violence against his adult daughter in 2004, after a “dispute arose over what Meghan had eaten for lunch that day. In this attack, Chester slammed his daughter on the kitchen table. Meghan attempted to leave but Chester followed her, threatened her, and punched her in the face. Meghan fell to the floor in pain, but Chester continued to attack her. He began kicking her as she lay on the ground [...].”
In 2007, the police again were called to Mr. Chester’s home by the woman who was then his wife. (It appears that she decided to leave his little paradise.) At 5:00 AM, Mrs. Guerrant-Chester (as she is now known) discovered her husband outside their house, receiving oral sex from a prostitute. Mr. Chester responded ungraciously to being caught, using language unfit to repeat. “Once inside, Chester grabbed Guerrant-Chester’s face and throat and strangled her while repeatedly shouting ‘I’m going to kill you!’ Chester’s daughter, Samantha Chester, heard Chester repeatedly threaten to kill Guerrant-Chester and came to the kitchen.” The police found a shotgun and a handgun when they arrived, and Mr. Chester’s fun-filled adventure in 18 USC 922(g)(9) litigation began.
Now, Mr. Chester is making the argument that his Second Amendment rights are being violated by 18 USC 922(g)(9) — and the Court of Appeals agreed that the trial court needed to rehear his case in light of the questions raised by D.C. v. Heller (2008). (The Court of Appeals also pointed out that there is some dispute among scholars about exactly how far such firearms disqualifications can proceed — listing one of my law review articles as one of the dueling scholars.)
People like Mr. Chester, and cases like his, are likely to incline the courts toward upholding what is clearly an absurd law. There is really no originalist basis for making every misdemeanor violence conviction into a lifelong firearms disability. Instead, we should be asking why some of these crimes are only misdemeanors. Brutal crimes such as Mr. Chester’s attack on his daughter deserve serious punishment as felonies. Other domestic violence crimes, such as a wife slapping her husband, or a husband throwing a cup at his wife during an argument, certainly deserve punishment and discouragement — but by throwing all of these into the same kettle, we destroy all useful distinctions.
If the Supreme Court finds the Lautenberg Amendment unconstitutional, the majority must be very clear that there is a fix: a proper division of felonies and misdemeanors. There are many domestic violence crimes that deserve to be treated as felonies — and punished that way. There are others that do not.
“Other domestic violence crimes, such as a wife slapping her husband, or a husband throwing a cup at his wife during an argument, certainly deserve punishment and discouragement.”
If we accept that premise, we might as well be pro Domestic Violence Offender Gun Ban, and every other gun-grabber wet dream.
I’m curious: are you suggesting that discouraging violence is not a proper function of government? Government can get carried away with this idea, as seems to have happened in the pendulum swing from often ignoring domestic violence to turning every dispute into what is effectively a felony, but it seems that for all but the anarchist, discouraging violence through police and courts is a legitimate function of government. Indeed, this is about the only area that everyone but anarchists can agree is a legitimate function.
Mr. Cramer,
I was trying to point out that you too have swallowed the politically correctness hook, line and sinker by accepting that a wife slapping her husband or the husband throwing a mug constitutes a “violent crime”. You’re correct, it does from the point of view of current laws, but it’s as asinine as restrictions to free speech: all our alphabet-words.
We’re all been brain-washed. And calling a wife’s slapping of a husband as violent crime is absurd … IMHO.
I have to agree with Mr. Cramer and the law that “a wife slapping her husband or the husband throwing a mug constitutes a ‘violent crime.’” It’s not just a major violent crime. It’s a low-level misdemeanor, the sort of thing appropriately punished by nothing more severe than a talking-to and a fine.
The political correctness comes in with making a Federal Case out of it. (And why has that fine old expression gone out of style?)
Mr. Ackerman, if a stranger walked up to on the street and slapped you, would that not be a crime? In every state that I know of, that would be battery–a crime. What makes domestic violence less of a crime? That it is between two people with an intimate relationship?
What is the constitutional authority for Congress to restrict possession of a firearm or ammunition that is not in interstate commerce? Restricting a purchase, that seems to be clearly within the scope of the commerce clause. But whether John Doe may possess a gun for defense of his home or family seems to be beyond the power of Congress.
The answer is the two party one-party system, tom. Actually, the answer is that the authority is us, because we morons elect these jackasses.
> the answer is that the authority is us, because we morons elect these jackasses.
Thread Winner.
You raise an important point. When Congress was flailing about for some justification for GCA68′s prohibition on convicted felons possessing arms, they decided that convicted felons possessing arms threatened the continued survival and existence of the U.S. government. That seems something a factual stretch to me, wouldn’t you agree?
To paraphrase a famous line from “Catch 22″:
That Commerce Clause; is there anything it cannot do?
Just more of the usual no tolerance Police State Alex Jones talks about.
The laws we all realize are now as often as not, I N S A N E.
Of course the big government, or the deranged 68′ers and their feminist wacko counterparts, or the ruling judicial elite and cops, love it.
That’s what we have now – an insane, discombobulated system of insanities.
That’s the truth, and we can’t even admit it.
A “felony” is “worst thing one can think of” in the general sense of the term, but we see, in reality, it also applies to petty and misdemeanor actions that don’t even deserve to be in a court most of the time.
The big government loves it. If they can charge and/or incarcerate the average citizen for anything at all, so long as it is emotionally accepted and allowd to be associated with “henious crime!”, they will, and they do, and everyone plays along like a retard.
Welcome to the newly and thoroughly insane USA, courtesy of the doped out of their minds 68′er generation, who’ve claimed for some time judgment of others is wrong and no one really knows what the truth is, hence the insane unlegal wacked out “rules” and system we now have.
“THAT’S THE WAY IT IS, IT’S THE LAW!” combines with republican right’s law and order stances and the crazed leftist activist victimology and hippyheadedness, and this is what we get !
Yeah, it’s 100% judicial system nutball, probably at least half time, probably a lot more of the time.
Spot-on, SiliconDoc. Demanding our safety and convenience, we shall have neither it or our liberty. And indeed, we can’t even admit it.
WOW! All this time I thought I was alone! You are 100000% right.
“68ers” indeed.
“feminist wackos” indeed.
“discombobulated system of insanities” perfect!
Well put exposé of the altogether broken judicial system in the oldering and broken U.S. Republic.
This by the over-developed cat’s cradles of statutes, laws, ordinances and regulations that favor-seeking politicians have knit for centuries.
AND due to the fact we have endless numbers of judges, but no magistrates — not as the author of the word ‘republic’, Plato, prescribed.
AND due to the rabidly radical feminist movement’s methodical destruction of masculinity and the family.
AND due to FDR/LBJ’s New Deal-Great Society pulverizing of the atomic family.
Ain’t nothin’ can be done, brother.
While the facts presented here are true, there is more to this sordid tale. One can also be convicted of “VERBAL Domestic Abuse”. In such cases NO indication of PHYSICAL contact is even suggested. The State is MORE than happy to prosecute such cases despite the “Victim’s” ADAMANT refusal to participate. It has been suggested that “Mental Abuse”–a vaporous definition at BEST–should also qualify as a prosecutable misdemeanor “offense”. A misdemeanor conviction for “Verbal Domestic Abuse”, AKA “name calling”, also results in a lifetime denial of Second Amendment rights.
Any minute now, Obama will sign into law, a Bill that makes it a felony to disparage any Leftist. And it will also be unlawful to impersonate a Leftist.
Foreign dictators are watching the U.S. very closely, and saying, “Wow! Let’s try that! It’s even more nuts than anything we’ve ever done, but I like it.”
Hu Jintao will leave the U.S. after his visit with cramps in his side from all the laughter.
Monty Python has nuttin’ on us.
I am being redundant as I’ve commented on this topic before on this site, but hey.
I own a Surety Bonding Company (Bail Bonds and Bounty Hunting). We bond lots and lots of folks on Domestic Violence. This law is often, too often, used as a weapon against neighbors, relatives, loved ones?, children against parents. From my experience most of these cases are NOT physical or a shove, but usually a shouting match. Not saying that’s OK, but when a scolding could have been useful it is not used by law enforcement, as they really have no choice in the matter any more. Someone is going to jail, usually a male, often with the victim begging the officer not to take him. Usually we hear “It was a misunderstanding they didn’t mean to call, the neighbor called, the child calls(the child was being reprimanded by Dad for doing something stupid, as all youth do at one time or another), in-law who doesn’t like son-in-law calls or vice versa, etc. Alcohol is often involved.
This is also a bread and buttter Zero tolerance law enforcement staple of the legal system(keeps them busy). It is also the staple of our business. We do lots of Domestics and for that matter lots of second and third offense Domestics with the same defendant (Usually on 3rd or 4th offense your talking months in jail). According to the law the defendant can’t, talk, e-mail, visit, walk by, drive by, be at Wal-Mart, MacDonalds, etc. and accidently run into them until the judge and prosecutor say so (Any number of people can and do call and report a bond violation and whoosh back to jail they go). It oftenis very hard for the defendant to stay away when they live in the same town and frequent the same places and often the defendant has no place to go (Very Common) except back to their residence where all their ‘stuff’ is located.
Anyway this is only one of many laws that make no sense in terms of the degree that they load up our legal system and jails for often minor, and more often than you would probably believe, often questionable offenses.
But it keeps law enforcement, judges, court staff, prosecutors, defense attorneys and of course, our company in business.
Not saying there aren’t the real deal in Domestics, just saying that many are a waste of time for everybody.
P.S. for those uninitiated you better believe that you are absolutely guilty in the U.S.A until proven innocent and anyone who believes differently hasn’t a clue about how it really works.
P.S.P.S. Prosecutors are more powerful than God and judges and work overtime to plea bargain for a conviction and usually get it.
NEXT…..
Not to mention that Federal prosecutors can flagrantly break the law with impunity in their attempt to get a conviction while effectively completely denying the defendant any means to defend themselves (such as freezing assets that could be used to hire a decent attorney).
Also like to point out the the law in question in this article was passed or allowed to become law by a Republican Congress.
I would second the reminder, that this law was passed by Republicans. It’s important to remember that many of our government problems aren’t “Democrat-caused” but rather “Representative-caused”. For too long, we’ve been willing to decry what one party does, but then look the other way when the other party–”our” party–does it as well!
Both Republicans and Democrats, over the last few decades, have been complicit in destroying our liberties.
I believe you would be hard pressed to find many women ever being arrested for domestic violence. In order for that to happen the man would have to be bleeding and unconscious when the police showed up, and they would probably still arrest the man.
Most “domestic abuse” claims involve divorce. It’s simple charge abuse and gain instant possession of the family home, but wait there’s more you also get instant custody and a legal baseball bat to use whenever instant capitulation on any subject is not granted.
“I believe you would be hard pressed to find many women ever being arrested for domestic violence.”
Nope. I know someone who runs a domestic violence treatment program, and about 1/3 of those assigned to the program as part of their sentence are women–and often for the kind of minor actions that I alluded to above.
It seems that we need some gradations, maybe first, second, and third degree domestic abuse, each with separate sentences and consequences. But no matter what we change, trying to sort through he said/she said (and what each said later) issues requires a Solomon, and you get far too many examples of murders when nothing or not enough was done to protect someone and also many gross abuses of the supposed victim’s power.
Do we want to go to the Founders on this one?
“But no matter what we change, trying to sort through he said/she said (and what each said later) issues requires a Solomon, and you get far too many examples of murders when nothing or not enough was done to protect someone and also many gross abuses of the supposed victim’s power.”
There are no perfect systems because they involve imperfect people. I understand the reasoning in taking away the authority of victims to decide whether to press charges or not. The effects were destructive in a different manner than the old system, where victims refused to press charges out of fear of revenge when they got back together.
At the core, we need a more moral population. John Adams observed that the constitution (of Massachusetts) was made for a religious people, and would be of no use to any other. I think there is some merit to that argument.
One account I read of frontier Indiana described what happened when one woman kept showing up for church with signs of physical abuse by her husband (a hard-drinking sort who did not much show up for church). After a few attempts by the menfolk of the community to talk him into improving his treatment of his wife failed to accomplish the desired ends, the men of the community showed up, turned the split rail fence into makeshift stocks, and left the guy there for a few hours. There were no subsequent domestic abuse problems. Until our society makes it clear that this is not acceptable, not just through government, but through the values being very widely held, it is going to continue.
“At the core, we need a more moral population.”
But stubborn humanity seems to get better and worse simultaneously on the two ends of the spectrum. Apparently abuse is getting worse and worse and we also have more people speaking out against it and trying to support the victims. So, essentially I agree with your statement: “There are no perfect systems because they involve imperfect people.”
Dwight: “Do we want to go to the Founders on this one?’
You know, D, sometimes you make sense as one reads, but often there is a seeming goofyness in the last line of your comment, like the one above. Are you saying we need to pass unconstitutional laws? Somebody, you, me, Mary or Al wants a law passed that is unconstitutional and we should go along because we feel it is the “right” thing to do. You oppose the rule of law in favor of the rule of whomever? Is that what you are implying? If not, what the hell ARE you implying?
I’ve been over at the new gun-love thread, so I missed this.
What am I implying? That the Founders could not conceive much about court cases which involved domestic violence. Women had no vote and almost always did not own property unless they were widows. Therefore, if one is a strict constructionist, no laws can be made without amendments regarding such issues, because the Founders were silent on the matter. That is the conservative core of strict constructionism; if the Founders did not address it, then we may not either without a Constitutional Convention. The beautiful thing is that strict constructionist judges can make the Constitution live, when they happen to come across a case in which their own political beliefs can be affirmed by going into new ground and affirming something odd like Kelo.
As for my goofiness; mea culpa. One needs some sense of humor or the absurd to breathe in and breathe out at PJM, whether through the nose or the mouth.
I’ve gone from supporting laws that prohibit felons from legally owning guns to opposing them. More generally I’ve come to believe that it is neither just nor wise to keep a person from exercising various rights unless that person is under custody of one sort or another (minor children, prisoners, persons on parole/probation, mentally deficient with a legal guardian, etc.)
But even if imposing a gun ban as a punishment is Consitutional, there is still the problem of the current gun bans for felons being applied as something other than a punishment – and therefore bypassing issues of Constitutionality and basic justice such as the prohibition against ex post facto laws. Also, there is the Federalism issue raised when the Federal government slaps a prohibition on someone convicted of violating State law.
Also, if it’s acceptable to strip gun rights from convicted felons, what about other rights? A good case could be made that Congress ought to also strip 4th Amendment rights from convicted felons as well. It would be an enormously effective crime-fighting tool, it would remove some seriously headache-inducing tangles from the court system, and compared to being executed, a lifetime of being subject to arbitrary searches is a pretty mild punishment.
But I’d still oppose Congress doing that.
A while ago I came to this basic conclusion: If we cannot trust someone with a gun, we should not trust that person with liberty. We have this stupid idea that we can somehow release violent felons from prison, or schizophrenics from the hospital, put their names is some magical database, and poof: they can’t get guns!
Besides the ease of getting them via stealing, or the black market, or straw purchases, there are *so many* other weapons out there, available to anyone who wishes to do harm: cars, baseball bats, knives, rope, brute strength–the list can go on and on. Why are we pretending that a ban on felons from owning weapons means anything, so long as they are free to roam about?
Well, there are people we do trust with limited liberty – children under 18 is a large and obvious example. I just think that there should be a bright-line rule of “does this person have a legal guardian or custodian assigned?” If so, then the custodian can allow or veto various activities, and can be held responsible for the results. If not, then there really isn’t anyone who can properly tell the person “No, unlike an ordinary person, you are not allowed to do that.”