Lautenberg Amendment Strikes Again

Delmar Polite was asleep at home when someone kicked in his door at 2:30am early Monday morning. Fortunately, he had a .357 revolver. While he had never fired it in the 9 years that he owned it, he still had it when it was needed.

Scott Sexton of the Winston-Salem Journal takes up the story from here:

Frightened or not, Polite did what a lot of us would do. He grabbed his pistol and went downstairs to defend himself and his home. He got off a couple of rounds — Polite didn't hit a blessed thing — but managed to ward off the home invaders.

Polite called police and, when they showed up, they confiscated his gun — standard practice, nothing out of the ordinary — until they finished their investigation. Thanks to a 13-year-old misdemeanor conviction, Polite might not get his gun back at all.

Polite was not perfect in his younger days as he had three misdemeanor convictions. Unfortunately, one of them was for Misdemeanor Assault on a Female in 1998.

According to the story, Polite had gotten into an argument with his then girlfriend which escalated into pushing and shoving. The police were called and he was arrested. When he went to court, he represented himself and was told that he'd get no jail time if he'd just plead guilty to the misdemeanor which he did. Nothing was ever mentioned about Federal gun laws and misdemeanor domestic violence convictions.

While much of the story deals with the question of whether or not Delmar Polite gets his gun back, I think the untold story is whether he will face Federal charges for even having the firearm in the first place. From a Fact Sheet on Federal domestic violence laws:

Possession of Firearm After Conviction of Misdemeanor Crime of Domestic Violence, 18 U.S.C. §922(g)(9)

As of September 30, 1996, it is illegal to possess a firearm after conviction of a misdemeanor crime of domestic violence. This prohibition applies to persons convicted of such misdemeanors at any time, even if the conviction occurred prior to the new law's effective date. A qualifying misdemeanor domestic violence crime must have as an element the use or attempted use of physical force or the threatened use of a deadly weapon. For example, a conviction for a misdemeanor violation of a protection order will not qualify, even if the violation was committed by a violent act, if the statute does not require the use or attempted use of physical force or the threatened use of a deadly weapon. The U. S. Attorney's Office can determine which misdemeanor convictions qualify.

In addition, the statute contains due process requirements regarding counsel and jury trials. Absent compliance with these due process requirements, the misdemeanor conviction will not qualify as a domestic violence conviction for purposes of Section 922(g)(9). Moreover, a person may be able to possess a firearm if the conviction has been expunged or set aside.

The maximum penalty for violation of Sect 922(g)(9) is 10 years.

As columnist Scott Sexton notes, it is never OK to get into a physical altercation with your spouse or girlfriend. That said, when is your debt to society considered paid?

"That follows you for the rest of your life," Polite said....

Whether Polite should get his gun back isn't an easy question. At a minimum, he shouldn't be charged with having it. Perhaps the best prism to look through belongs to Delmar Polite and the terror he suffered Monday.

"I don't know what would have happened if I didn't have that gun," he said.

And you know, I think Delmar Polite is right - what would happened if he didn't have a firearm with which to protect himself from a home invasion. The supporters of the Lautenberg Amendment would say that he gave up that right when he pushed his girlfriend in 1998 but should such a conviction for domestic violence then become a death sentence 13 years later?