Monday, June 30, 2008

An Interesting Problem

Since the Supreme Court has found that the 2nd Amendment is an "individual right" there are a whole series of issues that arise from that decision. Of particular importance to those of us here in Montana, is the need of lower income families who derive the bulk of their protein from wild game procured through hunting. In order to clarify the point, let me set up a couple of scenarios for you.

In case #1, the defendant robs a bank at gun point, is quickly caught, confesses, and is sentenced to 10 years in prison, with no time suspended. At the end of the 10 years, he goes hunting, and is stopped by a federal fish and game warden, who runs his name and finds out that he is a felon. Is the defendant in violation of the Armed Career Criminal Act, in that he is a felon in possession of a weapon?

If you answered that he (or she, no sense being sexist) would not have a problem, you would be correct. Because in Montana, you are automatically restored to your full civil rights after you are through with your prison, or probation, or parole.

Now, let's take another case: A couple go out to the bar and have way too much to drink. Arriving home, one accuses the other of some sort of infraction, and the argument gets louder and more heated. Finally, the man (the larger one of the two) says that he is leaving. The woman gets in his way, unwilling to end the argument without total victory. The man shoves the woman to the side and leaves the house.
She calls 911, and the police arrive, and following the statute, arrest the aggressor, who will not be eligible for bail until he sees the magistrate, which if it happens on a Friday night, means Monday, or Tuesday if Monday is a holiday. At the appearance, he enters a not guilty plea to the charge of domestic violence, is released on $500 bond, and forbidden to contact his wife, or to go to his house until the matter is resolved.
Unfortunately, it is all too typical, that the wife/girlfriend will then pester the court, the prosecutor and the defense counsel to remove the restrictions, because she really loves him and she is not afraid of him. Eventually, the prosecutor realizes that he has a less than willing "victim" and offers a disorderly conduct, the lowest misdemeanor crime that we have with a punishment of no more than 10 days and $100 fine.
Now, two years later, the man is out hunting and runs into the same federal warden. When the warden runs the man's name, what do you think will happen?

If you said that he would be immediately arrested and sentenced to no less than 5 years in a federal prison, you would be correct.

So, what is the difference? Why is the felon restored his rights, but the misdemeanant is not? The answer lies in the fact that in Montana, you don't lose your rights for a misdemeanor conviction. You can vote, sit as a juror, all the full benefit of rights are available to you. But because you were never deprived of your rights, you can never have them restored.
Yes, I know that makes no sense, but the same Supreme Court that found an individual right to keep and bear arms, said that the only logical interpretation of the statute is that you have to lose your rights to have them restored.

The only solution to this problem is to either change the federal statute, (The Violence Against Women Act) or to have Montana law say that you lose your rights when you are convicted of a misdemeanor and have them restored in the same manner as a felon would. Neither of which is politically tenable right now.

Let this be a lesson - Only have a homosexual relationship because they are expressly prohibited from being classified as domestic violence. That way at least, you could still hunt.


Dave Budge said...

Let me quote my Samoan Lawyer; The law's an ass.

Your scenario #2 actually happened to a family member of mine. The female in the relationship called the cops when she (well, they) were both loaded. He held her arms back during an argument so she would hit him. She called the cops and he was arrested for domestic violence.

Two years later, after they married, he bought a hand gun. A month or so after that he got a letter from the DOJ ordering him to dispose of all the guns in his possession.

Now, the question remains, can she possess guns in her own home with him living there?

Dave Budge said...

Oops, s/b "so she wouldn't hit him"

Anonymous said...


Anonymous said...

This is what happens when you let female neurotics run your country. You end up with a bunch of male-hating laws and a dysfunctional legal system.

There will be no end to the waste of public money, broken marriages, and fatherless children until all domestic violence laws are repealed.

Anonymous said...

And repeal still won’t bring back all the cops, judges, lawyers, and husbands who died because of these laws…

Steve said...

A.S.S., Thanks for your comments, but I believe you missed the gist of the post, which is that the law is screwed up based on construction. While I agree that some of the assumptions of the VAWA are incorrect (for instance one study shows that women between 20-40 initiate violence in 71% of the relationships), this does not mean to imply that there are no real abuse cases.
But the way that the law is applied, is far too broad catching many who shouldn't be prosecuted. If you believe that it is better that 9 guilty men go free to prevent 1 innocent from being convicted, you would support reworking these laws.
On the other hand, in deference to your comments, There is the problem that too many who believe that all men are evil and all women are victims.

Anonymous said...

You missed the point. There was never any need for any domestic violence laws. Assault and battery laws were good enough.

What you have now is a gender-biased legal system that imposes huge costs on society by creating a permanent underclass of women called “abused spouses,” who ultimately become “single moms.” Such women need continual supervision and support by the state. And you know who staffs those state agencies. It’s the same neurotic feminists who instigated these laws.

You have a dysfunctional legal system when it comes to so-called domestic violence laws. It not only feeds on itself but also creates insurmountable problems in other areas of the law, what you call screwed-up constructions.