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Harley v Garland - Lifetime 2A prohibition


Euler
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Docket

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Can there be a personal, individual as-applied challenge under the Second Amendment to a prohibition on the possession of a firearm for the protection of hearth and home which contends that the statutory ban at issue ... is constitutional, but that it is not constitutional when applied specifically to the individual person raising the challenge, because of their unique and individual circumstances?

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In 1993, now 28 years ago, [Robert Timothy Harley] was convicted of misdemeanor domestic assault ... He and his then wife had an altercation during which he was outside of a Ford Bronco and she was behind the wheel with the engine on. When the vehicle rolled forward and stopped, he stepped up on the running board to reach in and turn off the ignition switch. She apparently pushed him. He grabbed to hold on and, in the process, grabbed her arm. According to her affidavit, filed on his behalf with his civil suit, she went to a local Fairfax County Police Station where she presented herself to a magistrate, and obtained a warrant to arrest him for misdemeanor assault. He pled guilty in July 1993, and received a minimal fine of $75.00, with no other penalty from the court. His then wife, in her affidavit for this case, said that this one time event did not involve either of them having punched, slapped, or hit the other. In Virginia, any "offensive touching" constitutes common law assault and battery.

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Harley isn't contesting the constitutionality of the law banning misdemeanor domestic abusers from possessing firearms. He is contesting that the law should be applied to him, so that he can keep a firearm in his home for self-protection.

Edited by Euler
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IL Supreme Court ruled in favor of plaintiff in the case of Johnson vs Illinois State Police. I hope the US Supreme Court does likewise in this case.

So I looked up Johnson v ISP, even though it wasn't that long ago.

... The circuit court held that ... the federal Gun Control Act of 1968 ... and several provisions of the FOID Card Act, which incorporate that federal statute, were unconstitutional as applied to Johnson. ... The Illinois Supreme Court affirmed the judgment on different grounds ... Illinois's regulatory scheme ... sufficiently fulfills Congress's intent to "defer to a State's dispensation relieving an offender from disabling effects of a conviction." ...

The cert petition doesn't mention any Virginia regulatory scheme designed to grant relief to misdemeanor convicts, only that the Federal district and circuit courts refused to do any as-applied analysis. One thing that works in an individual's favor in Illinois, but not in Virginia, is that CA7 has previously decided that as-applied challenges to federal prohibitions (not necessarily 2A prohibitions) are allowed by federal law. Thus the IL Supreme Court can grant relief from a federal prohibition. CA4 has not allowed as-applied challenges, including the challenge in this case.

 

Personally, I think the cert petition leans too heavily on how Harley is a well-respected electrician and volunteer fire fighter, which I think is the wrong argument, but ultimately comes down to the circuit split and to how the 2A should not be a second class civil liberty, given that as-applied challenges to 1A prohibitions have been allowed, which I think are the right arguments.

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