The Problems with the Lautenberg Amendment | Nebraska Criminal Defense Lawyers
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The Problems with the Lautenberg Amendment | Nebraska Criminal Defense Lawyers


Hi. This is Matt Aerni from Berry Law here in
Lincoln, Nebraska. With me today is one of our other attorneys, it’s Chris Ferdico,
and we’re gonna spend some time talking with you today about the Lautenberg
Amendment to the Gun Control Act of 1968, how the Lautenberg Amendment affects
your ability to possess a firearm. Chris can you tell us some things about the
Lautenberg Amendment and and how it can create some problems for persons that
possess firearms under certain situations. Certainly. For those that
aren’t familiar with the Lautenberg Amendment, that was the amendment that
was passed with regard to the Gun Control Act that makes it illegal for
any person who has been convicted of a crime, a misdemeanor crime of domestic
violence, from owning, possessing, or transferring any firearm or ammunition.
What’s unique about the Lautenberg Amendment is it is essentially the
only misdemeanor crime that is a lifetime prohibition to the ownership,
possession, and transfer of firearms. What’s also unique about the Lautenberg
Amendment is that one of the things that catches people, as we all know gun laws
tend to be minefields — they’re gotcha laws in that a lot of people
unsuspectingly, people who may not be intending to violate the law but they
step on the landmine and it goes off, and they find themselves on the wrong side
of the law. Lautenberg is very much like that because a lot of people are
charged with crimes that may start out as domestic violence, but as they work
themselves through the court system they end up getting amended or dismissed and
refiled as disturbing the peace or something under a city ordinance that doesn’t sound like domestic violence. But
what the courts have ruled is that if the factual basis involves an act or attempted act against a
domestic partner or somebody similarly-situated, excuse me, then you’re
gonna fall under the prohibition of the act and that can turn you into a felon.
Yeah, and that’s a horrendous situation for a person to find
themselves in. Another land mine is the Lautenberg Amendment actually applies to
convictions that were obtained even before the amendment was put in place.
That’s been tested in court and we’ve found that as it still applies. So, if
your conviction was, let’s say from the late 1980s, the Lautenberg Amendment
comes along in the mid 1990s, you can still be in violation of the Gun Control
Act through the Lautenberg Amendment even though your conviction was before
that amendment was added. So, if you’re looking to possess a firearm and
you know you have one of these convictions out there, it would be really wise to
speak with an attorney about getting a pardon or somehow otherwise getting your
civil rights restored so that you can potentially possess a firearm
without running afoul of the law and turning yourself, unwittingly, into a
felon. One of the, what I think the saving graces of the Lautenberg
Amendment is, is that specifically under the federal law there’s a provision that
a conviction applies unless that conviction has been set aside, pardoned
expunged, or you have otherwise had your civil rights restored
through a state process. In Nebraska, getting a case set aside, specifically in
the statute, restores your civil rights. Thus, if you get a set-aside, which is a
lot easier in many jurisdictions an expungement or a set-aside of a
misdemeanor, is often much easier than going through the pardon process. If you can get that misdemeanor set aside in Nebraska,
that will re-qualify you under the second amendment. So, that is
one remedy that’s available that’s a little easier under Lautenberg, that may
not be under other aspects or prohibitions under the Gun Control Act.
But this brings up an interesting point and this is the point of the
intersection between Federal law and State law. Matt, talk about the
differences between the federal Lautenberg Act, and whether or not States
have passed their own Lautenbergs.s That’s a really interesting intersection. For
example, even persons that are subject to certain protection orders can be in
violation of the law if they are in possession of a firearm. One of the
differences between federal law and state law is under federal law you can,
in certain situations, not be in violation of the law, even though you’re
subject to a protection order, if you did not participate in a hearing that was
held in order to determine whether that protection order should go into place or
not. However, for example under Nebraska state law, it does not matter whether you
participated in the hearing or not. If you’re subject to a certain types of
protection orders, you can be in violation of gun control laws. So,
that’s one intersection where the federal and state law is kind of, don’t
really meet, and you really want to get an attorney if you’re subject to a
protection order and you’re thinking about possessing a firearm. This
is true with all gun control issues or all gun firearm cases. That is, there are
always three levels of law that you have to look at. 1.You have to know the federal law. The federal law is always going to control. 2. You have to look at your State law. 3. You may have to look at the local city
ordinances that you’re in because sometimes the city ordinances are the
most strict between the Federal and the State law. That’s certainly how it is in
two jurisdictions in Nebraska, Lincoln and Omaha. So, that’s where the
minefield is. You think you’re out of one minefield only to walk into two others,
and that’s why navigating the area of firearms without an attorney,
especially given the fact that we’re talking about a fundamental civil right,
is extremely hazardous. As advocates and ardent protectors and
and sportsmen as we are at Berry Law Firm, we don’t like to see people’s rights to
be given up unless they’re deserved. A lot of these laws, again you can
accidentally step into the situation and and find yourself losing a fundamental
right that we think is important, and becoming a felon without doing
anything that should be considered wrong. That’s
what we’re talking about today folks. We thank you for joining us and we hope
if you find yourself in one of these situations, if you’re if you’re thinking about
possessing a firearm or purchasing a firearm and you know you have one of
these convictions in your past or you’re subject to a protection order and you
want some questions answered, you need some legal advice. Please reach out to us
here at Berry Law. 402-466-8444 We’re very happy to assist you and take a look at your case and see what we can do to help you out and avoid those landmines. Thanks for joining us today Chris, and we
look forward to speaking to you guys again. Thank you.

One Comment

  • O Lord

    Lautenberg Amendment in it self is against the law of the 2 Amendment. Why wont any lawyer try to get rid of it? Because they don't want to. They make money defending you to get your rights back. Nothing but a money racket.

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