Can I Legally Possess a Firearm If I Have Been Convicted of Misdemeanor Battery?
Southern California Criminal Defense Blog
The legality of firearm possession for people who have committed crimes in California is often a difficult issue. If you have been convicted of certain crimes, not only are you subject to California’s laws restricting gun possession, but you are also subject to a strict federal law – the Lautenberg Amendment (18 U.S.C. 922(g)(9)) imposes a lifetime ban on gun ownership by any person who has committed a “misdemeanor crime of domestic violence.”
This is easy to understand if you have a felony conviction: If you are convicted of any felony, regardless of your age or whether the conviction was in California, you are subject to a lifetime ban on gun possession under California Penal Code section 29800.1
However, with misdemeanors, the ban is less clear. California law also applies a lifetime ban on firearm possession to certain misdemeanors involving the use of a firearm, such as misdemeanor domestic violence crimes, assault with a firearm, or having two convictions for brandishing a firearm. This ban is consistent with the federal law.
Adding to the confusion is this: Under California Penal Code section 29805, California has a 10-year ban on firearm possession by anyone convicted of any of 40 different types of misdemeanors.2 Among those is the crime of misdemeanor battery.
While California’s Court of Appeal ruled in 2013 (Shirey v. Los Angeles County Civil Service Commission) that people convicted of misdemeanor battery under California Penal Code section 242 are not prohibited from possessing firearms under the federal law,3 a more recent ruling by the United States Supreme Court has cast doubt on the prospects of gun possession for people convicted of misdemeanor battery.
United States v. Castleman and the Meaning of “Physical Force”
In 2014, the Supreme Court upheld a lifetime ban on firearms for a man who had a misdemeanor conviction under a Tennessee domestic violence law for “intentionally or knowingly cause[d] bodily injury to” the mother of his child. He had successfully argued in lower courts that his conviction for firearm possession was invalid because his prior conviction did not require proving he had violent contact with the victim, which was required under the law.4
The court in Castleman changed course, holding “that the requirement of ‘physical force’ is satisfied, for purposes of §922(g)(9), by the degree of force that supports a common-law battery conviction.”5 The court reasoned that the general policy behind the Lautenberg Amendment supports “grouping domestic abusers convicted of generic assault or battery offenses together with the others whom §922(g) disqualifies from gun ownership.”
Does this now mean that Californians who, like Shirey, were convicted of a lesser charge of misdemeanor battery in a case where the victim was a spouse will be subject to a lifetime ban on firearm possession under the federal law? That seems to be the direction that the Supreme Court intends for this law to go. Though no cases have yet been reported to indicate this is the case, if you have a prior misdemeanor conviction for battery, you should consult with an attorney before you decide to purchase a firearm at the end of your 10-year ban.
Wallin & Klarich’s Criminal Defense Attorneys Are Here to Help
If you were convicted of a crime and are unsure of the status of your Second Amendment right to keep and bear arms, you should work with a criminal defense attorney who is experienced in California’s firearm laws. Our attorneys at Wallin & Klarich have been successfully helping clients fight firearm charges for over 30 years. Our knowledgeable attorneys can help you, too.
With offices in Orange County, Los Angeles, San Bernardino, Riverside, Ventura, Victorville, West Covina, San Diego, Torrance and Sherman Oaks, there is an experienced Wallin & Klarich criminal defense attorney available to help you no matter where you are located.
Contact our offices today at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation. We will be there when you call.
1. [See Cal. Pen. Code § 29800..]↩
2. [See Cal. Pen. Code § 29805]↩
3. [Shirey v. Los Angeles County Civil Service Commission, (2013) 216 Cal.App.4th 1 [156 Cal.Rptr.3d 517]. See our article on this case Lautenberg Amendment, 18 U.S.C. § 922(g)(9), located at http://www.southerncaliforniadefenseblog.com/2013/09/battery_convicts_firearm_possession.html]↩
4. [Johnson v. United States, 559 U.S. 133 (2010).]↩
5. [United States v. Castleman, 572 U.S. ___ (2014)]↩
By Wallin & Klarich, A Law Corporation
Source: http://www.southerncaliforniadefenseblog.com/2016/01/can-i-legally-possess-firearm.html
Felons and Disabled’s Rights to Guns
It is a right of defense against that government, or any other person who might violate your rights to Life, Liberty, Property, or the right to defend the above. By allowing criminals to be defind out of rights are secure, as it is the goveerment… who defines crimes.
Citizenship is the right to have rights and not subject to good behavvior of the citizen.
(Trop v. Dulles). In 1866, the rights were extended to all persons in the United States under the 14th amendement, and 1871 civil rights act. (Currentley under title 28, section 1343 USC, title 18 sections 241-245 USC, title 42, sections 1981-1985 USC
As a vested protected property interest, it is not subject to forfeiture by later congress, without becoming a bill of attainder. it was not limited to the lawful citizen, even in the beginning.
All of our”founding fathers” were traitors by definition, and subject to execution. Yet we now define “felonies as anything subject to more than a year in jail, even though the original definition required hard labor for infamous crimes, and even then, it was only capable of being accomplished by awrit of attainder, (Blackstone’s commentaries on Laws of England)
The only means by which to make rights secure, was to secure them for all, and to punish the lawbreaker, by imprisonment or execution, not to deprive them of the rights that were common, and belong to all citizens equally.
Under the 1871 civil rights act, it was recognized that the states would try to deprive rights under the color of law by declairing felonies, and the punisment for those felonies (often involving curfews or other restrictions) was a deprivation of rights. it was made afelony act for a reason, and one of the rights involved was particulary mentioned in the Congressional records as the right to keep and bear arms for self-defence, including against their own government… for no other could engage in acts under the color of law, statute, ordinance, regulation, or custom to deprive them of their rights. It included officers both federal and state, judical and executive.
And was so rarely enforced it was near forgotten about. See Mcdonald v, chicago, 2010.
To be quite frank, if they are citizens, they retain ALL their rights of citizenship. The citizenship is the rights, not the title. If they are not citizens, the governments have transgressed, as stripping citizenship for a crime is unconstitutioal (Trop v. Dulles) as an 8th amenedment issue.
Futher, stripping the rights from any person, under the color of any law, statute, ordinance, regulation, or custom in any state, territory, district, or possession, is a felony act, punishable up to and including life in prison, or the death penality under title 18, section 242 of the US code.
The supreme court has already found that this code ( under the 1866 civil rights act) was the reason for the establishment of the 14th amendment, and that the 1871 civil rights act reestablished it, and placed all states on notice. ( McDonald v. Chicago) that the second amendment was fully enforeable against the states.
The objective of the act ( Under Monroe v. Pape) was to prevent any group from depriving the rights of the minority, under any semblance of any law, regardless of the color or other statutes.
Felons Rights to Guns, and Yes even the Disabled.
It is a right of defense against that government, or any other person who might violate your rights to Life, Liberty, Property, or the right
to defend the above. By allowing criminals to be defined out of rights are secure, as it is the government… who defines crimes.
Citizenship is the right to have rights and not subject to good behavior of the citizen.
(Trop v. Dulles). In 1866, the rights were extended to all persons in the United States under the 14th amendment, and 1871 civil rights
act. (Currently under title 28, section 1343 USC, title 18 sections 241-245 USC, title 42, sections 1981-1985 USC
As a vested protected property interest, it is not subject to forfeiture by later congress, without becoming a bill of attainder. it was not
limited to the lawful citizen, even in the beginning.
All of our”founding fathers” were traitors by definition, and subject to execution. Yet we now define “felonies as anything subject to more
than a year in jail, even though the original definition required hard labor for infamous crimes, and even then, it was only capable of
being accomplished by a writ of attainder, (Blackstone’s commentaries on Laws of England)
The only means by which to make rights secure, was to secure them for all, and to punish the lawbreaker, by imprisonment or execution, not
to deprive them of the rights that were common, and belong to all citizens equally.
Under the 1871 civil rights act, it was recognized that the states would try to deprive rights under the color of law by declaring
felonies, and the punishment for those felonies (often involving curfews or other restrictions) was a deprivation of rights. it was made
a felony act for a reason, and one of the rights involved was particular mentioned in the Congressional records as the right to keep and
bear arms for self-defense, including against their own government… for no other could engage in acts under the color of law, statute,
ordinance, regulation, or custom to deprive them of their rights. It included officers both federal and state, judicial and executive.
And was so rarely enforced it was near forgotten about. See McDonald v, Chicago, 2010.
To be quite frank, if they are citizens, they retain ALL their rights of citizenship. The citizenship is the rights, not the title. If they
are not citizens, the governments have transgressed, as stripping citizenship for a crime is unconstitutional (Trop v. Dulles) as an 8th
amendment issue.
Further, stripping the rights from any person, under the color of any law, statute, ordinance, regulation, or custom in any state, territory,
district, or possession, is a felony act, punishable up to and including life in prison, or the death penalty under title 18, section 242
of the US code.
The supreme court has already found that this code ( under the 1866 civil rights act) was the reason for the establishment of the 14th
amendment, and that the 1871 civil rights act reestablished it, and placed all states on notice. ( McDonald v. Chicago) that the second
amendment was fully enforceable against the states.
The objective of the act ( Under Monroe v. Pape) was to prevent any group from depriving the rights of the minority, under any semblance of
any law, regardless of the color or other statutes.
Cooper v. Aaron, 358 U.S.
1, 78 S. Ct. 1401 (1958)
Note: Any judge who does not comply
with his oath to the Constitution of the
United States wars against that
Constitution and engages in acts in violation
of the supreme law of the land. The
judge (is engaged in acts of treason.)
The U.S. Supreme Court has stated
that (no state legislator or executive ) or
(judicial officer) can war against
the Constitution without violating his undertaking
to support it.
See also In Re Sawyer,
124 U.S. 200 (188); U.S. v. Will, 449 U.S.
200, 216,
101 S. Ct. 471, 66 L. Ed. 2d 392, 406 (1980); Cohens v. Virginia,
19 U.S. (6 Wheat) 264, 404, 5 L.
Ed 257 (1821).
Hoffsomer v. Hayes, 92 Okla 32, 227 F. 417
“The courts are not bound by an officer’s interpretation
of the law under which he presumes to act.”
Marbury v. Madison, 5 U.S. (2 Cranch) 137,
180 (1803)
“… the particular phraseology of the constitution of the
United States confirms
and strengthens the principle, supposed to be essential to all
written constitutions, that a law repugnant to the constitution is
void, and that courts,as well as other departments, are bound by that
instrument.” “In declaring what shall be the supreme
law of the land, the Constitution itself is first mentioned; and not
the laws of the United States generally, but those only which shall
be made in pursuance of the Constitution, have that rank”. “All
law (rules and practices) which are repugnant to the Constitution are
VOID”. Since the 14th Amendment to the Constitution states “NO
State (Jurisdiction) shall make or enforce any law which shall
abridge the rights, privileges, or immunities of citizens of the
United States nor deprive any citizens of life, liberty, or property,
without due process of law, … or equal protection under the law”,
this renders judicial immunity unconstitutional.
Davis v. Wechsler , 263 US 22, 24.
“Where rights secured by the Constitution are involved, there can
be no rule making or legislation which would abrogate them.”
Miranda v. Arizona, 384 US 436, 491.
“The claim and exercise of a constitutional right cannot be
converted into a crime.”
Miller v. US, 230 F 486, 489.
“There can be no sanction or penalty imposed upon one because of
this exercise of constitutional rights.”