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COPYRIGHT 2001 Fordham Urban Law Journal
INTRODUCTION
Imagine a court reducing a domestic violence felony to a misdemeanor because the judge does not want to give a "noncriminal" (1) male a felony conviction merely for attacking his wife. (2) Imagine further that as a result of this judicial reluctance, the court sentences the defendant to serve his time only on weekends. The defendant is then released. Subsequently, he goes home and attacks his wife again. This time he attacks her with a gun. This time he kills her. Now imagine this man is a police officer or soldier who has sworn an oath to protect you, (3) or perhaps a next door neighbor, or a stranger you pass on the street.
When Congress passed the Lautenberg Amendment (4) to the Gun Control Act of 1968 ("Lautenberg Amendment" or "the Amendment") in September 30, 1996, it was with the express purpose of reducing scenarios like this one, of preventing that police officer, soldier, neighbor, or stranger from committing gun-related domestic violence. (5)
The Lautenberg Amendment states that:
it shall be unlawful for any person ... who has been convicted in any court of a misdemeanor crime of domestic violence, to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce. (6)
Citing national domestic violence statistics including the percentage of domestic violence homicides involving firearms each year, (7) Senator Lautenberg intended to close a dangerous loophole in the Gun Control Act enabling domestic violence offenders to evade an additional felony conviction for gun possession by getting domestic violence felony charges reduced to misdemeanors. (8) Senator Lautenberg sought to secure the same protection for the family of a domestic violence misdemeanant as was theoretically provided the family of a domestic violence felon through existing law. (9) The Lautenberg Amendment, therefore, subjects domestic violence misdemeanants to the same restrictions (10) faced by prior convicted felons, making it a felony for domestic violence misdemeanants to ship, transport, or possess a weapon in or affecting interstate commerce. (11)
However, while the Lautenberg Amendment mirrors the Gun Control Act in making gun possession a felony, its scope is broader. The Lautenberg Amendment precludes the Gun Control Act's public interest exception (12) exempting governmental agencies from the Gun Control Act. (13) Therefore, the Amendment applies to, and has great potential to impact both police and the military. (14)
With the Lautenberg Amendment, Congress rightly prioritized the need to reduce gun-related domestic violence nationwide. However, while this underlying idea is fundamental to domestic safety, the Lautenberg Amendment is possibly unconstitutional. (15)
Congress may have impermissibly abused its Commerce Clause authority in passing the Lautenberg Amendment. (16) This conclusion is supported by the United States Supreme Court's recent decision in United States v. Morrison, (17) where the Court struck down the civil remedies provision of the Violence Against Women Act (18) due to an impermissible overstepping by Congress under the Commerce Clause. (19) In light of Morrison, a rebirth of suits challenging the constitutionality of the Lautenberg Amendment could occur.
Due to the definitional vagueness of the terms in the Lautenberg Amendment, the statute may also violate the Due Process Clause of the Constitution. (20) Further, in the military setting, the Lautenberg Amendment possibly constitutes an impermissible ex post facto law because of its solely punitive effects. (21) Even if the Lautenberg Amendment is constitutional, the Amendment's definitional vagueness and inherent structural and implementational flaws render it ineffective. (22)
Part I of this Comment examines the Commerce Clause (and Tenth Amendment) challenges (23) to the Lautenberg Amendment. It provides the history of cases thus far failing to successfully challenge the constitutionality of the Lautenberg Amendment. It then discusses the Supreme Court's decision in Morrison, that struck down the civil remedies provision of the Violence Against Women Act ("VAWA" or "VAWA provision") as a violation of the Commerce Clause. (24) Applying the Morrison rationale to the Lautenberg Amendment, this Comment concludes that Congress may have violated its Commerce Clause authority by passing the Lautenberg Amendment.
Part II examines the Due Process Clause challenge to the Lautenberg Amendment, discussing case law representing both sides of the issue. Although courts have upheld the constitutionality of the Lautenberg Amendment under the Due Process Clause, the Lautenberg Amendment could be characterized as unconstitutionally vague. Further, as Judge Posner noted in his dissent in United States v. Wilson, it may be unjust to convict someone of a crime when that person had no knowledge his actions were wrongful. If this is true, the Lautenberg Amendment violates the Due Process Clause.
Part III of this Comment analyzes the Ex Post Facto Clause challenge to the constitutionality of the Lautenberg Amendment. It examines this challenge in both the civilian and military settings and concludes that while the Lautenberg Amendment may not be characterized as an impermissible ex post facto law in the civilian context, it could be so construed in the military context. Therefore, this Part argues that the Lautenberg Amendment should be amended to except the military from its reach.
Part IV provides the history of cases raising an Equal Protection Clause challenge to the Lautenberg Amendment cases which have thus far failed. Part V examines further weaknesses with respect to the Amendment's implementation and enforcement. This part argues that flaws inherent in the Amendment's language render the Lautenberg Amendment incapable of reducing nationwide gun-related domestic violence in either civilian or military settings.
This Comment concludes that to successfully reduce domestic violence incidents involving firearms, Congress needs to reexamine and rework the Lautenberg Amendment. Even if the Lautenberg Amendment is constitutional, Congress needs to provide further guidance in how the Amendment should be implemented. In addition, Congress must increase public awareness of the Amendment for it to be effective. If Congress does not take these steps, the Lautenberg Amendment will fail to achieve its intended goals.
I. COMMENCE CLAUSE (AND TENTH AMENDMENT) CHALLENGES TO THE LAUTENBERG AMENDMENT
Under Article I, Section 8, Clause 3 of the United States Constitution, Congress has the authority to "regulate Commerce with foreign Nations, and among the several States." (25) In 1995, in United States v. Lopez, the Supreme Court elaborated on the power of Congress under the Commerce Clause. (26) The Lopez Court identified three categories of activity Congress can permissibly regulate under its commerce power:
First, Congress may regulate the use of the channels of interstate commerce.... Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities.... Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce. (27)
In Lopez, the Court struck down the Gun-Free School Zones Act (the "Act"), (28) finding the Act an impermissible overextension of Congress's Commerce Clause authority. (29) First, the Court concluded the Act was a "criminal statute that ... has nothing to do with `commerce' or any sort of economic enterprise, however broadly one might define those terms." (30) Thus, the "noneconomic, criminal nature" of possessing guns in school zones was key to the Supreme Court's decision to strike the Act down. (31) Second, the statute lacked the requisite "jurisdictional element" (32) necessary to connect possessing firearms in a school zone with interstate commerce. (33)
In Lopez, the Supreme Court rejected the government's attempt to link gun-related violence in school zones with interstate commerce. The Court found the government's "costs of crime" and "national productivity" arguments would "permit Congress to `regulate not only all violent crime, but all activities that might lead to violent crime, regardless of how tenuously they relate to interstate commerce." (34) To allow such arguments, the Court reasoned, would eliminate any limitation on federal power under the Commerce Clause. (35) The Supreme Court thus struck down the Act, concluding that the Act's legislative history and congressional findings were insufficient to demonstrate that possessing guns in a school zone effected interstate commerce. (36)
A. Applying Lopez to The Lautenberg Amendment
In the context of the Lautenberg Amendment, the relevant portion of the Commerce Clause, as in Lopez, relates to Congress's authority to regulate activities having a "substantial relation" to interstate commerce. (37) To prevail in a Commerce Clause challenge, the government need only demonstrate a slight effect of a particular activity on interstate commerce. (38) Therefore, a Lautenberg Amendment convictions will be upheld where the government can show the firearm possessed by a domestic violent misdemeanant at the time of arrest was, at some point, in or affecting interstate commerce. (39)
Opponents of the Lautenberg Amendment have attempted to use Lopez to prove that the Lautenberg Amendment violates the Commerce Clause because there is no substantial relation between firearms possessed by domestic violence misdemeanants and interstate commerce. (40) So far, such challenges have been unsuccessful. (41)
In Gillespie v. Indianapolis, (42) the Seventh Circuit distinguished the Lautenberg Amendment from the Gun-Free School Zones Act struck down in Lopez. The court held the Lautenberg Amendment to be constitutional because, unlike the Gun Free School Zones Act, the Amendment contains a jurisdictional element requiring a domestic violence misdemeanant to have a firearm "in or affecting commerce." (43) Given this requisite jurisdictional element, the court ruled Congress did not violate the Commerce Clause in enacting the Lautenberg Amendment. (44)
The Gillespie Court therefore concluded the defendant's Tenth Amendment claim also failed because Congress had acted within its Commerce Clause authority (45) and the Lautenberg Amendment "works no change upon state laws concerning domestic violence ... [but] simply attaches a new federal consequence to a state conviction with respect to the possession of firearms in or affecting interstate commerce." (46) Similar Tenth Amendment challenges to the Lautenberg Amendment have also failed. (47)
B. Possible Rebirth of the Commerce Clause Challenge to the Lautenberg Amendment Under Morrison
Although the Supreme Court limited Congress's Commerce Clause authority in Lopez, (48) subsequent cases have continued to uphold the Lautenberg Amendment as a permissible use of Commerce Clause authority. (49) However, in 2000, in United States v. Morrison, (50) the Supreme Court once again emphasized the limits of Congressional authority under the Commerce Clause. In Morrison, the Court struck down the civil remedies provision of the Violence Against Women Act. (51) This reemphasis on limiting Congress's Commerce Clause authority may influence courts to reanalyze the constitutionality of the Lautenberg Amendment.
1. The Facts of Morrison
The Morrison case involved a college student, Christy Brzonkala, who attended Virginia Polytechnic Institute ("VPI" or the "University"), beginning in September 1994. (52) During her first semester, she met two members of the football team, Antonio Morrison and James Crawford. (53) Brzonkala alleged that within thirty minutes of meeting her, the two men assaulted and repeatedly raped her. (54) Brzonkala consequently suffered from severe emotional trauma, stopped attending classes, and withdrew from the University. (55) In 1995, Brzonkala filed a complaint against Morrison and Crawford under the Sexual Assault Policy of the University. (56) The judicial committee found Morrison guilty of sexual assault, but lacked sufficient evidence to punish Crawford. (57)
In July, 1995, Morrison planned to appeal the conviction in a court challenge of the school's sexual harassment policy. (58) The University then held a second hearing under its policy, which at the time of the first hearing had not been widely disseminated to the students. (59) The judicial committee again found Morrison guilty, and he again received a two month suspension from the University. (60) At this second sentencing, however, Morrison was not found guilty of "sexual assault," but only of "using abusive language." (61)
Morrison again appealed, (62) and on August 21, 1995, the University set aside the conviction, finding it excessive in comparison to prior cases prosecuted under the policy. (63) In December 1995, Brzonkala sued Morrison, Crawford, and the University in the United States District Court for the Western District of Virginia. (64) She alleged that the attack on her by Morrison and Crawford violated the Violence Against Women Act. (65) Morrison and Crawford moved to dismiss, arguing that the VAWA civil remedies provision was unconstitutional. The United States intervened to argue that the VAWA civil remedies provision was constitutional. (66)
The district court dismissed Brzonkala's case, finding that although Brzonkala had successfully stated a claim against the defendants under VAWA, Congress lacked the authority to enact VAWA's civil remedy provision under the Commerce Clause or Fourteenth Amendment. (67) The United States Court of Appeals for the Fourth Circuit affirmed the Lautenberg district court's conclusion that Congress lacked constitutional authority to enact the VAWA provision, and reversed the district court's decision, recognizing the validity of Brzonkala's VAWA claim. (68) On a rehearing en banc, the United States Court of Appeals for the Fourth Circuit vacated its earlier decision and reaffirmed the district court. (69) Brzonkala appealed and the Supreme Court granted certiorari. (70)
2. The Supreme Court's Reasoning in Morrison: Reaffirming Lopez
As the Supreme Court stated in Lopez, to strike down congressional legislation, there must be a plain showing that Congress exceeded its constitutional bounds. (71) A presumption of constitutionality exists for Congressional legislation. (72) Nevertheless, Congress's regulatory authority under the Commerce Clause is not unlimited. (73)
In challenging the VAWA provision's constitutionality, the defendants in Morrison used Lopez to argue that Congress failed to demonstrate the substantial jurisdictional tie between violent gender-motivated crime and interstate commerce. (74) The Morrison court agreed, finding that "gender-motivated crimes of violence are not, in any sense of the phrase, economic activity." (75) Therefore, though the Court was satisfied by the congressional findings showing the serious impact of gender-motivated violence on victims, such findings were not sufficient to "sustain the constitutionality [of the VAWA provision as] Commerce Clause legislation." (76) The Court concluded that in passing VAWA, Congress had not limited itself to regulating economic activities. (77) Therefore, Congress overstepped its authority in enacting the VAWA civil remedies provision. (78)
In Morrison, the Court thus reemphasized its conclusion in Lopez that "[s]imply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so." (79) If the Court upheld the VAWA provision, Congress could "regulate any crime as long as the nationwide, aggregated impact of that crime has substantial effects on employment, production, transit, or consumption." (80) The Court was rightly not willing to accept this overbroad delineation of Congressional authority under the Commerce Clause.
3. Applying Morrison in the Lautenberg Amendment Context
A notable case applying Morrison to the Lautenberg debate is United States v. Bunnell. (81) In Bunnell, the defendant used Morrison to argue, among other unsuccessful claims, that the Lautenberg Amendment is an unconstitutional overreaching of Congressional power under the Commerce Clause. (82) He argued that the Morrison decision extended Lopez, thus invalidating the statute. (83)
However, the Bunnell Court noted that in Morrison, the Supreme Court did not address the criminal penalties in VAWA, but only the civil remedies provision. (84) Therefore, the court held, under Morrison, the "exten[sion]" (85) of Lopez does not apply in a criminal context. (86) Looking to earlier Lautenberg Amendment cases for guidance, the Bunnell court concluded the Lautenberg Amendment has "both a specific jurisdictional element as well as a substantial effect on interstate commerce" and therefore is a "constitutional exercise of Congress' power under the Commerce Clause." (87)
As the Bunnell court recognized, courts have not, thus far, specifically addressed the "exten[sion]" (88) of Lopez in the criminal context. (89) Although the Bunnell court found Morrison does not apply in the criminal context, (90) this is only one decision from a district court in Maine. Further, the court did not...
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