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Legal Memorandum: Exemption from Lautenberg Amendment's Prohibition

Issue: Does probation completion by a person convicted of a domestic violence misdemeanor exclude him/her from the Lautenberg Amendment’s prohibition against gun possession?

Area of Law: Criminal Law
Keywords: Lautenberg amendment's prohibition; Gun possession; Misdemeanor crime of domestic violence
Jurisdiction: Federal, Wisconsin
Cited Cases: 274 Wis. 2d 513
Cited Statutes: 18 U.S.C. §§ 921-30; 18 U.S.C. § 922(g)(9); 18 U.S.C. § 921(a)(33)(B)(ii); 18 U.S.C. § 924(e)(1); 18 U.S.C. §921(a)(20) (2006), §921(a)(20), § 921(a)(33)(B)(ii);18 U.S.C. § 924(e)(1) (2006), § 921(a)(20); 18 U.S.C. §921(a)(20) (2006); Section §921(a)(20), § 921(a)(33)(B)(ii); 18 U.S.C. §921(a)(20); 18 U.S.C. § 921(a)(33)(B)(ii), § 921(a)(20)
Date: 11/01/2008

The Lautenberg Amendment, added in 1996 to the Gun Control Act of 1968, 18 U.S.C. §§ 921-30 (2006), prohibits gun possession by a person convicted of a “misdemeanor crime of domestic violence” 18 U.S.C. § 922(g)(9)(2005). However that prohibition is limited:

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 for such 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) (2005) (emphasis added).  Until fairly recently, given that convicted one has completed his/her probation, the argument could be made that any civil rights he/she might have lost were restored upon that completion, thereby exempting them from the Lautenberg Amendment’s prohibition.  However, the Supreme Court’s decision in Logan v. United States, 128 S. Ct. 475 (2007), appears to preclude that argument.

In Logan, petitioner was convicted under the Armed Career Criminals Act (“ACCA”), 18 U.S.C. § 924(e)(1) (2006), for possessing firearms and was sentenced to fifteen years’ imprisonment, the minimum under the ACCA.  128 S. Ct. at 478-79.  Logan challenged what would otherwise have been a maximum ten-year sentence for the firearm possession, arguing that the convictions […]

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