We cannot conclude on this record that the government has carried its burden of establishing a reasonable fit between the important object of reducing domestic gun violence and § 922(g)(9)’s permanent disarmament of all domestic violence misdemeanants. The government has offered numerous plausible reasons why the disarmament of domestic violence misdemeanants is substantially related to an important government goal; however, it has not attempted to offer sufficient evidence to establish a substantial relationship between § 922(g)(9) and an important governmental goal. Having established the appropriate standard of review, we think it best to remand this case to afford the government an opportunity to shoulder its burden and Chester an opportunity to respond. Both sides should have an opportunity to present their evidence and their arguments to the district court in the first instance.One judge concurred in the judgment, concluding that “[i]t is ... quite clear that § 922(g)(9) is substantially related to the government’s important interests, as the statute directly prohibits the possession of firearms by those with a demonstrated history of actual or attempted violence,” but agreeing with the remand because he was “content to give Appellant Chester a full opportunity to offer evidence and argument showing the district court how and why he escapes the law’s bite.”
The case involves the Lautenberg Amendment, which makes it a federal crime to possess a firearm if the defendant meets any of several disqualifying conditions, which are alleged to be indicators that the subject is too "dangerous" to be entrusted with a firearm.
These issues are discussed in the law review article Public Safety or Bills of Attainder?, which raises several questions that need to be addressed:
- Is it constitutional to prosecute as a crime the possession of anything?
- Is it constitutional to base a criminal prosecution on being a person for which there was only
- A judicial proceeding in the courts of a different sovereign that did not argue or decide to disable the right to keep and bear arms?
- An administrative determination on an issue not related to firearms?
- Is it due process to disable the right to keep and bear arms when an order doing that is not contained in the final sentencing order, and the disablement was never argued in trial or sentencing?
If someone violates a state order disabling the RKBA, then it is up to the court issuing the order to prosecute for contumacy, not the Union government.
To understand the background for all this, it is important to realize that things like protective orders, parental rights terminations, and juvenile detentions, are all driven by large federal subsidies, divided among prosecutors, medical and social workers, foster caregivers — and judges. Typically as much as $50,000 per case. Judges are not going to turn off their gravy train. The people involved in these legal abuses are raking it in at taxpayers’ expense. That is why there are laws making protective orders so easy or even unavoidable for trivial acts. Until those subsidies are repealed, there will be no hope for justice in such cases.
To verify this for your own state and county (both of which get the money), you need to obtain (which may take an open records act request) the reports of subsidies received (often off-budget) and reports to the federal agencies of expenditures justifying the funds. You can then search through court records, counting the number of instances of things like protective orders, parental rights terminations, and juvenile detentions, and divide the amounts of money by the number of instances (not cases, because there can be multiple instances per case).
Here are a few links, not comprehensive, but just the first few that I spotted in a quick web search:
These programs are also tied to (generally state-level) collection of child support from noncustodial parents, which is also federally subsidized. In Texas, the AG tries to collect, but also obtains additional revenue by getting a lot of parental rights termination orders. Many of these cases are filed in the nearby Williamson County, where rubberstamping is assured.
There are often incomplete records on who gets how much money, but I have unconfirmed reports of judges personally getting as much as $5000 per order, often not directly, but as a kickback from the various local agencies or subsidy recipients. Needless to say, where those judges are elected, they don’t lack for campaign contributions, and woe be it to anyone who dares to run against them, because he will never win another case in that jurisdiction.
Much of the appropriations for such grants are contained in congressional earmarks, so they are not uniform across the country. They represent one of the ways members of Congress buy local supporters.
Have you ever wondered how many judges become millionaires from a judge’s salary? Or why the same few people get all of this kind of work, and retire wealthy?
What led me to investigate all this were reports of child abuse by foster parents in Northern California when I lived there. It seems the International Pedophile Mafia (they actually call themselves that) have infiltrated the judicial system and put themselves first in line to be foster parents of especially attractive children, for whom they place orders, and the “system” then takes them from their parents and delivers them into the clutches of the creeps (sometimes to disappear forever). Even the judges are terrified of those creeps.
No matter how incredible you might find such reports to be, investigate for yourself. But be careful. These people are dangerous.
There is no substitute for doing your own investigation in your local area. I have pointed you in the direction to take. The rest is up to you. I have done some of this kind of research in a few jurisdictions. When I tried to do it in Sacramento in 1999, I found the records were not available in the Clerk’s office, but a staffer let slip they were being held in the office of the presiding judge, along with records on bonds of office, and other such things. If you tried to do an open records request, they would deny all knowledge. That may not be solid proof of corruption, but when combined with the evidence of the ways judicial decisions are made, and that the judges are living in multimillion-dollar homes, the circumstantial case is overwhelming. Then, of course, there are the statements, off the record, of many people who have inside knowledge, but are afraid to step forward. When so much points in the same direction, a reasonable person would have to find what I have. People are convicted of murder on weaker evidence.
We should be able to agree on a few key principles:
1. Due process requires that for the exercise of a right to be disabled and a defendant deprived of it (two steps, often lumped together), there must be a petition in a court of competent jurisdiction to explicitly do that, and that since the right is about life and liberty, the rule of evidence is proof beyond a reasonable doubt and the defendant has a right to a verdict by a unanimous jury of twelve.
2. Legislative disablement of a right, particularly to keep and bear arms, for persons deemed “dangerous”, based on other than a judicial finding at trial for that right for that person according to (1), is a constitutionally prohibited bill of attainder.
3. There is no authority under the original meaning of the Commerce or Necessary and Proper clauses to authorize Congress to make it a crime to possess anything.
The problem in these cases is that disablement of the right to keep and bear arms has not been explicitly petitioned and that relief granted, by unanimous verdict of a jury of twelve. If someone is convicted of violence or negligence, okay, but let the petition also explicitly demand disablement of that right, and the need to disable that right be separately proved beyond a reasonable doubt. That is the standard of due process demanded in the Constitution and Bill of Rights. Nothing less. If the convict later violates the sentencing order containing the disablement, then let the court that issued that sentence prosecute him for contumacy. Federal courts have no constitutional jurisdiction for that.
As is argued in that law review article linked above, it is a bill of attainder (which can include ex post facto, but is broader).
Consider what is going on in somewhat different terms. In essence the Lautenberg Amendment 18 USC 922 is saying the equivalent of “It is a federal crime to possess a firearm if one once parted his hair on the left.” Now someone who is now parting his hair on the right is prosecuted under this section. What is the basis for the charge? That he once copped a plea to parting his hair on the left, in a different jurisdiction, a state, for a penalty of 30 days, or maybe just a temporary restraining order? But the present federal prosecutor argues, we have jurisdiction because he could have gotten 1 year, or the restraining order was issued, albeit ex parte and without an opportunity to challenge it. The problem is, he didn’t get one year, and almost no one in that state jurisdiction ever does, or the restraining order has been lifted. Nor did that state jurisdiction order suspension of his right to keep and bear arms, even during the restraining order. It could have done so, but it didn’t. Nor was there a state statute doing so, except for when he was actually incarcerated.
In effect, the federal statute is legislatively disabling a fundamental right for a class of persons, and leaving it to an administrative determination that a person is in that class. There is a partial due process involved in prosecution for possession, but without any way to challenge that administrative determination or the original case that established the predicate, which is now beyond appeal.
That is simply not due process. It is a prohibited bill of attainder.
A federal court does not have jurisdiction to enforce an order of a state court, which is what has jurisdiction to issue orders disabling the right to keep and bear arms in the kinds of cases being discussed.
As an aside, I would argue that there is no constitutional power for federal courts to punish for contempt (contumacy). The Supreme Court “granted” them such power as “inherent” in the judicial power (it is not), in United States v. Hudson, 7 Cranch 32 (1812), but I do not find such power to be authorized as “Necessary and Proper”.
The "regulation", with criminal penalties, applies to persons who it is claimed, satisfy certain criteria, most but not all of which are predicated on some kind of (state) court order: a protective order, sentencing for a crime that could have been punished by a year or more in prison, commitment for mental evaluation or drug or alcohol treatment, etc. None of those explicitly disables the right to keep and bear arms.
The key point is that for someone to be prosecuted for a crime, the right to commit the act must first be disabled. A person may be charged with murder (in state court) because that right is first disabled, for everyone. So how did the RKBA get disabled for the persons to be prosecuted under 18 USC 922? It wasn’t disabled for everyone. If it is to be considered disabled, it is disabled only for a subset of persons that satisfy certain criteria, none of which is a federal court order following a due process proceeding. That makes it a bill of attainder. It may also be ex post facto, but it is still constitutionally prohibited even if it is not retroactive.
To constitutionally prosecute someone for a crime of possessing something, the same court system, federal or state, must have first criminally tried him, with him having a right to a unanimous jury verdict of twelve, and ordered the disablement of the right to possess that thing in the final sentencing order. Anything less is a violation of due process, as required by the Fifth Amendment.
The only constitutional federal crimes on state territory are:
- Piracy and felony on the high seas.
- Offenses against the law of nations.
- Deprivation of rights by a state agent.
- Denial of voting on certain grounds, such as race, gender, age 18 or above, failure to pay a tax, etc.
Despite the (wrongly decided) Wickard v. Filburn, the Commerce and Necessary and Proper clauses do not confer penal powers.
A state court of competent jurisdiction may disable the exercise of any right, including life, liberty, and property, through a proper trial, either for a crime, or on a petition to declare the defendant incompetent. I argue that for either, the process and protections need to be that of a criminal trial for disablement of life or liberty, and of a civil trial for property.
It has been argued by some that the Lautenberg Amendment is a ex post facto law. That is not correct. It would be ex post facto if the state did it, but when the feds do it, that is something completely different. Two different legal systems. Despite the intermingling, state and federal (Union) are different legislative jurisdictions, each deriving its authority from a different constitution.
The federal courts have no basis for applying its own statutes to people differently, depending on what a state court may have done, except that property rights are defined under state law, not federal, so a federal claim against someone’s property may get involved in state court decisions on that basis.
The two jurisdictions are completely separate for life and liberty issues, which means criminal cases. Each may prosecute the same person for the same act under its own statutes, without there being double jeopardy (although the Framers did not anticipate there could ever be overlapping jurisdictions).
The problem is that what the feds are doing is not conducting a due process proceeding to determine whether the RKBA for a person should be disabled. They wouldn’t have the subject matter jurisdiction to do that anyway. They are just saying, “We think some of these guys are too dangerous to possess firearms”, based on nothing that has ever taken place in our courts, but only as an administrative finding. That is equivalent to saying, “It is a felony to possess a firearm if one of our administrators thinks one is dangerous”. And if you ask what is the basis for considering anyone “dangerous”, you get “We use these clues, and we’ll even tell you what they are. That is public notice, so those of you who are disqualified had better not keep your guns.”
Obviously, that is making uit a crime to be “dangerous” and have a firearm, but leaving it to some clerk to identify who is “dangerous”, even retroactively, without anyone having positive notice of his disablement, or the opportunity to challenge it in court. He has to accept the disablement, and if prosecuted, the only issue is whether he possessed a firearm, not whether the federal prosecutor had jurisdiction to prosecute him in the first place.
To the argument that in the 21st century it is no longer necessary for officers enforcing a warrant to carry one with an original signature, I answer that we may be in the 21st century, but the Constitution is an 18th century Supreme Law, and the purpose of a warrant is not to prove authority to law enforcement insiders, who may be satisfied with computer entries. It is to prove authority to any person on the scene who challenges the authority, and for that it not only has to be in writing, but have an original signature, and anyone challenging needs to have an opportunity to verify it independently. The official on the scene may be satisfied he has authority, but it cannot be assumed that anyone else knows who he is or that he has authority. He could be an imposter, or a officer working for the mob, on a hit contract. He might just have the wrong address. It has to be verifiable by anyone, because anyone has arrest authority, as part of militia duty, which predates constitutions, and the duty to protect others from those who act without authority.
What is happening is that the predicates for "armed" and "dangerous" are being separated, the first accorded due process, but not the second.