Gun Owners Foundation Amicus Brief Filed in United States v. Hayes U.S. Supreme Court

Michael Harless Constitutional Law, Firearms Law, U. S. Supreme Court

On September 26, 2008, we filed on behalf of Gun Owners Foundation an amicus brief in United States v. Hayes.  The GOF brief urged the Supreme Court to affirm a Fourth Circuit court of appeals ruling that, as a matter of statutory interpretation, an individual does not lose the right to own a gun unless the prosecutor in the misdemeanor case  proves beyond a reasonable doubt that the misdemeanor event was, in fact, a domestic one.

Prior to the Fourth Circuit’s decision in Hayes, all the other courts of appeals (which had addressed the question) had decided the case the other way:  that the domestic aspect of the misdemeanor need not be proved in court, but need only appear somewhere, such as on a police report.  Thus, for a dozen years, hundreds, if not thousands, of people have been deprived of their right to purchase or possess a firearm, not on the basis of a proven fact, but on the basis of an uncontested accusation.

The statute being contested was enacted in 1996 as part of a omnibus appropriations bill – the now infamous Lautenberg Amendment, named after its sponsor, New Jersey Senator Frank Lautenberg (D-NJ).   This stealth provision prohibited, for the first time in the history of federal firearms regulation, a person from possessing a firearm if he had been convicted of a  misdemeanor, specifically a “misdemeanor crime of domestic violence.”

One of the defining differences between felonies and misdemeanors is that felons lose civil liberties (e.g., voting, serving on a jury, holding public office, gun ownership), while those who commit misdemeanors do not.  The Lautenberg amendment is a notable exception to this rule.

The GOF brief charges that, by its disregard for the language of the statute and its unjustified reliance upon Senator Lautenberg’s personal opinions, the Government unlawfully jeopardizes firearm ownership, by encouraging inaccurate and incomplete reporting of information on the National Instant Criminal Background Check System, and by creating an impermissible risk of self-incrimination on ATF Form 4473, completion of which is required of all purchasers of firearms from a federally licensed firearms dealer.

Link to brief