Skip to comments.Lautenberg Amendment - advice for a friend needed
Posted on 02/23/2013 2:02:36 PM PST by Jean SEdited on 02/23/2013 2:05:58 PM PST by Admin Moderator. [history]
A very close friend of mine recently discovered that he could not buy a gun, the feds delayed the purchase so long that the gun dealer sold it to him anyway.
He later found out that he cannot own any guns because of the Lautenberg Amendment dated 1996.
It's the first he had heard of it. He had a misdemeanor charge in 2003 for battery. I don't want to go into too many details but his girlfriend was drunk and accused him of stealing her car (with her in it) and battery. They slapped each other. BTW, the are engaged now and living together for 10 years.
My friend has been stocking his freezer with venison and other game since he was 12 years old and now he finds that he cannot own a weapon and is is very upset. The WI DNR has been issuing him hunting licenses for years. He is 54 years old.
Any advice would be appreciated.
There is no remedy here, any conviction for DV ends your 2nd Amendment rights.
He should not have pleaded guilty.
I have a couple of friends that have clean records but "clerical errors" wrongly entered other people's (with similar names) convictions on their records.
Court orders for removal go unheeded, and they still turn up on checks.
I am not a lawyer nor do I practice law. It is always best to get the opinion of a lawyer who practicies law in your state. The Lautenberg Amendment is not universally applied. It only applies if “convicted” and the amendment sets for a spectific condition of convicted:
The definition of ‘convicted’ can be found in the chapter 18 U.S.C. § 921(a)(33)(B)(ii) and has exceptions:
(i) A person shall not be considered to have been convicted of such an offense for purposes of this chapter, unless
(I) the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case; and
(II) in the case of a prosecution for an offense described in this paragraph for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, either
(aa) the case was tried by a jury, or
(bb) the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise.
(ii) A person shall not be considered to have been convicted of such an offense for purposes of this chapter if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.
Therefore, if a person was represented by counsel, waived that right, AND, the person was entitled to a trial by jury, but also waived that right, the person shall not be considered to have been convicted if the conviction was expunged or set aside or had his civil rights (to bear arms) restored, UNLESS the further order of the court permanently revokes that right.
I would advise having an lawyer review the case in question and provide an opinion as to the application of the law to your friend. If the law does apply, then work with the attorny to get the conviction expunged.
Possibly a “no contest” or “nolo contendere” plea may have kept his “2nd Amendment rights intact” in the eyes of the court.
He’s totally screwed. Unless he has a lawyer well placed in the government.
Petition the courts to have the charge and sentence dismissed. Background check may still show the charge, but instead of “guilty” it will say “dismissed”. Will probably take a lawyer and some cash but is possible in many cases. State and judge dependent of course.
My close friend is in charge of constituent services for the Walker Administration. She returned my call within hours when I asked about this.
She pretty much said he was screwed. This makes me sick!
Well, looks like it wouldn’t hurt to smack her around a few more times. Doesn’t matter anymore.
Lie, Lie, Lie
It’s stuff like this that turn us all into criminals one way or another.
I’m not suggesting this to anyone but I can imagine that there are quite a few people around the country that have just gone underground. As for venison in the freezer a good friend shared some from his last hunt.
Your friend needs real legal advice. Talk to a lawyer to see if the charge can be expunged from his record.
Your friend must seek out competent legal advice from the state in which s/he seeks a permit.
There are state and federal prohibitions that need to be dealt with.
The same kinds of issues arise when someone is unable to find work, because of a past conviction, so it is not simply about second amendment rights, either.
There is a growing effort to have the system look at this area of the law because there are so many like this one, and in many cases, no one in the system thinks it is fair, but they feel they have no choice in following the law.
The main thing is to have an attorney that works in the criminal law area that also has a practice that includes efforts to restore second amendment rights through expungement and other procedures possibly available.
In many cases, an expungement is possible. However, due to the Constitutional separation of powers, gaining an expungement in a criminal matter would be a first step. However, in many circumstances, a court does not have jurisdiction to tell non-court branches of the government what to do with their records. For example, a branch of the executive division of government (say, the Department of Motor Vehicles), does not always have to eliminate records of a DUI conviction, even if the court orders the expungement of the records in the criminal court system. The records in the executive branch are often not expunged and the court has ruled in various places that they have no authority to expunge an executive branch record. So what you think is erased is only erased in the courthouse, but not elsewhere.
So, what it means it that a CCW applicant needs to satisfy sometimes many different entities, and the Court is merely the first step in the state and federal courts, in the judiary and in the executive branch.
Your friend should find out all of the steps necessary, and if they all cannot be met, s/he shouldn’t waste the money trying step one.
In some cases, there are separate administrative rules about what to do to ask for the executive division to allow the issuance of a concealed carry permit.
It is complicated because so many entities have some say in this.
Don’t let your friend lose heart, but do have him or her get advice from someone who can talk through the entire process.
The length of time in the past, the severity of the offense, and many, many other factors will affect the outcome. In some cases, the circumstances simply do not allow it.
In most cases, a plea of guilt is the same as a finding of guilt by a jury, even if it is some special kind of plea that purports to not “really” admit the offense. Even there, your friend must seek the advice of counsel so that that is clarified.
God speed to your friend in finding the right help, and getting your rights restored to your friend.
Many people warrant a second chance. It will be difficult in light of the shootings in the news for some prosecutors to want to give anyone a second chance if it is in their discretion, because it is so much safer and easier for them to say “no.”
Was he convicted?
Lautenberg is one of the universal questions on any type of weapons permits, anywhere in the country. It is also one of the things that keeps people out of law enforcement.
However, cops are charged with domestic violence just like anyone else. What normally happens is the victim will recant at the last minute to avoid the guy losing his job. Subsequently, the cop gets to keep his job.
So, if your buddy was convicted of Battery, with the domestic violence attachment, he’s pretty much screwed.
He, with the support of the woman, could try and get the record expunged, but that has a little better chance of a fart in a fan factory.
It depends on the state where he was convicted. I ran in to this many times when I was an FFL. He needs to talk to a criminal attorney in the jurisdiction where he was convicted. In many states a conviction can be set aside or expunged. It usually depends upon time having passed with no other crimes on his record. In Oregon it used to cost about $5,000 dollars.
Good luck to him!
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