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?

10 thoughts on “Lautenberg Amendment Strikes Again”

  1. That's crazy. I read the story when it happened. Have you sent the story to SAF? Might be that they could do something about that. Especially if they could get the old girlfriend to put in a good word for him.

  2. This is a recent letter I wrote to the NRA, if anyone reading this can help me please email me at:

    I was just denied my Illinois FOID card due to the Lautenberg Amendment. Which states any Misdemeanor Domestic Violence conviction bans me from my 2nd Amendment right FOREVER. How can this be? I am 32, I own my own business at the Chicago Board of Trade, I've been with my wife 8 years and we are very happy, we help raise my deceased brothers 2 children, I pay all my taxes and vote in every election, and have no other convictions.SO whats is the point? How can I be denied my rights for something that happened 12 years ago? My DV conviction was only because I was 18 and took the Ill-advice of my public defender, never was I made aware of the long term ramifications of my PLEA actions. He said "just do it, it's the easiest way", so I took his word for it. (I was a kid with no money). The sad part is my girlfriend never wanted to press charges, the state picked up the case being that it was in a small college town. I'm a good man I only made ONE mistake, I grabbed my girlfriends arm as the state says in a "aggressive manor" after she threw a bottle at me. The arresting officer said nonchalant "I should of let the bottle hit me!" and I wouldn't be arrested. I just don't get how this can be?? I was so proud when I was waiting for my NRA membership to come, only to get my FOID denial 2 days later! In my member info from the NRA said the greatest benefit of joining the NRA is to know that you will fight for my second amendment rights. So I am ready to fight what should I do? The only 2 options I have are a governors pardon (that won't happen, I live in anti-gun Illinois) and the NRA… Just to be clear with the Launtenburg Amendment I'm banned for life for a MISDEMEANOR, but I can get my rights back after 5 if I was a FELON. Please help me, I'll do what ever it takes…

  3. Your story sounds like mine. In California it's a 10 year ban on owning firearm's, for a Misdemeanor Domestic Violence Conviction. The problem the Federal Gov. has a life time ban on owning a firearm for a MDVC. You mentioned Girlfriend, in California a girlfriend can get you a charge of MDVC. The Federal Gov. domestic violence charge doesn't mention girlfriend. What happens is the Fed's trump California's 10 year ban. A life time ban kicking in after your State time is over is wrong. I am appealing the federal lifetime ban at this time, the victim was a girlfriend.

    1. So what happened with the appeal? I am in the same issue.. I just made a phone call though which violated a protection order. Nothing involving physical force.

    2. I'd like to know the outcome as well. I too had a girlfriend I had problems with 18 years ago that landed me in a DV case. I didn't live with her and I think there is a conflict in the Feds definition where I should be granted rights.

  4. Somthing simalar happend to me exept i had no domestic violence cinviction it was just misdaminor cinviction. For an ounce of pot in ca. And they say u cant own a gun for 5 to 10. Only crime ive ever done.

  5. im 28 years old, when I was 22 I got 2 dui's about 4-5 months apart, I was charged with a first degree misdemeanor because PA grades your DUI by your blood alcohol level. my public defender never asked me any questions about the DUI and told me from the jump that if I didn't plead guilty I would probably get a harsher sentence so I took her advice and pleaded guilty. being that I lost my license and don't live in the greatest neighborhood I figured it was a good idea to buy a gun to carry being that I was going to have to walk everywhere for the next 2 years. found out later that under PA law I am able to own a firearm but federal law says anyone with a class 1 misdemeanor is banned for life from owning a firearm. how the hell is it a LIFETIME ban for a misdemeanor, that's just absurd. as far as I know there is no way to have your rights restored on the federal level, only the state level, but being that Im banned on federal I can never own a firearm for the rest of my life. I found that you can petition the ATF to restore your federal gun rights, but from my research I found that it will get you nowhere because the gov. refuses to fund the ATF to do firearm restoration, you will just get a letter back from the ATF saying "sorry but we cannot process your application at this time". so for a non violent misdemeanor I am banned from owning a firearm for the rest of my life? ridiclous

  6. This law is unconstitutional, I could see 5 years, classes, perhaps an evaluation with a rights restoration process. Lifetime ban is absolutely unconstitutional.

  7. This law is unconstitutional, I could see 5 years, classes, perhaps an evaluation with a rights restoration process. Lifetime ban is absolutely unconstitutional.

Comments are closed.