2nd Amendment and Right to Bear Arms/Disorderly Conduct

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Question
Are there any new regulations being considered to properly formulate the question on the Federal Background Check application dealing with a Domestic Violence conviction amended to Disorderly Conduct?  When reading the question one would have to be a lawyer to understand that a Disorderly Conduct conviction also applies here.

Many people (law abiding citizens)would not proceed with the application if they knew this was the case.

Further what are the remedies if any for a person denied that was completely unaware this was an issue?  I.e at adjudication was never informed of the consequences of a DC conviction and loss of second amendment rights. And yes, waived the right to an attorney, didn't understand that something that carried a $50.00 court cost fine would have such a huge impact on a persons freedom!

I mean is this even constitutional, one is NOT convicted of DV in any way shape or form yet the Fed decides one is guilty what gives?

Any information would be greatly appreciated.

Answer
I am not aware of "any new regulations" regarding changes to the question on the 4473 form regarding a domestic violence misdemeanor conviction.

I do not understand what is meant by "a Domestic Violence conviction amended to Disorderly Conduct." A conviction is a conviction, and while it may be pardoned or expunged, I am not aware of a conviction being "amended" to a different offense. Some charges are plea-bargained or otherwise reduced to lower offenses, but whatever the plea that is taken is the conviction of record.

I think what may be at the heart of the question being asked is the fact that one not need be convicted of a crime that has domestic violence as an element in order to be a prohibited person under federal law for purposes of possessing firearms and ammunition. There was at one time a question as to whether the Gun Ban for Individuals Convicted of a Misdemeanor Crime of Domestic Violence (also known as the Domestic Violence Offender Gun Ban or the Lautenberg Amendment), which makes those convicted of domestic violence misdemeanors prohibited persons, applied only to persons convicted of a misdemeanor that explicitly contains a domestic relationship element. That issue has been finally resolved by the federal courts.

The law applies to anybody "convicted in any court of a misdemeanor crime of domestic violence." [18 U.S.C. 922(g)(9)]. Such a crime is a misdemeanor that "has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by" a person who falls within certain specified categories of relationships to the victim. [18 U.S.C. 921(a)(33)]. The question arose whether the law imposing the misdemeanor had to specifically refer to the victim having some domestic relationship to the person charged, or whether it is sufficient that a person was convicted of any statute involving violence when the victim was somebody within the specified domestic relationships.

In United States v. Hayes, 129 S.Ct. 1079 (2009), the United States Supreme Court ruled that the Domestic Violence Offender Gun Ban applies to somebody convicted of a violent misdemeanor where the victim is one of the specified domestic relations, even where the predicate offense does not have violence against a domestic relation as an element. In other words, somebody convicted of the misdemeanor crime of "simple battery" against his or her spouse (and not the different, more specific crime of "battery against a spouse") becomes a prohibited person under the Domestic Violence Offender Gun Ban.

To fall within the ban, the person convicted had to have been "represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case" [18 U.S.C. 921(a)(33)(B)(i)(I))]. Also, if the person was entitled to a jury trial, the case had to have either been tried by a jury, or "the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise." [18 U.S.C. 921(a)(33)(B)(i)(II))].

There have been several constitutional challenges to this law, none of which have been successful. The only remedies for somebody convicted of a violent misdemeanor against a domestic relation is to seek a pardon, or to seek an expungement of the conviction or restoration of rights:

"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." [18 U.S.C. 921(a)(33)(B)(ii))]

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2nd Amendment and Right to Bear Arms

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Robert P. Firriolo

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General constitutional (Second Amendment) and federal firearm law inquiries. New York State and New York City laws and regulations on firearms. Use of force in self-defense. DISCLAIMER: While this site is called AllExperts and this field is captioned "Expertise," this individual is not holding himself out as an "expert" in any legal area of practice. Some jurisdictions require certain qualifications and/or certifications in order to use the label "expert" in connection with a law practice. Participation in this online service is not intended to state or imply "expert" qualifications in any jurisdiction.

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Practicing firearms law attorney, including representation of individuals, gun clubs, sportsmen's organizations, shooting ranges, and businesses. Over 20 years of grassroots activism, including involvement in campaigns and elections; writing and editing articles, letters, press-releases, policy papers, and op-ed columns; interaction with firearm regulatory agencies; former board member and current legal advisor to the board of sportsmen's and firearm civil rights organizations; pro-bono counsel on select firearms-related legal cases; debated leaders of the gun-control lobby on national television. Lecturer on lawful use of deadly physical force and crime prevention.

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Attorney at law. Extensive practice, independent study and research in this field. NRA-certified firearms instructor (rifle, pistol, shotgun, home firearm safety, personal protection) and Chief Range Safety Officer.

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Martindale-Hubbell "AV" Peer-Review Rating.

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