August 2008

Story here.

Reduced to a nutshell: federal law says a conviction does not count if it has been “expunged,” or firearm rights have been restored. Under Wyoming law (and that of a lot of other States), a misdemeanor domestic violence conviction can be “expunged,” with a ruling say that it is so, even tho the record is not physically destroyed and can be used, if the person offends again, to enhance the sentence.

Is that “expunged” or not? Wyoming argues it is — the purpose was to let state law control the question of whether a person is convicted, and here’s a state court order saying the record is “expunged,” using the very word of the statute. ATF argued, and the 10th Circuit agreed, that something isn’t “expunged” if it’s still sitting in court or government files and has future legal effect.

I wasn’t involved in the case, but thought the key would be to look at what expungement schemes looked like in 1986, when the Firearm Owners’ Protection Act, which inserted the expungement language, was adopted. My memory is foggy, but as I recall there was the federal Youth Corrections Act, which I think did destroy records, and some early State laws. Congress was acting against the background of that legislation … what did it provide?

She’s an NRA lifer, which is good, and a hunter. Gotta say, she adds more to his ticket than Biden adds to Obama’s.

District Court ruling, in pdf, here. Defendant, a reservist, has two handguns (one a semiauto, one a registered full auto) and two shoulder stocks that would fit either. The shoulder stocks double as holsters, and he has one handgun in each when ATF raids him (on other grounds, which turn out to be a legal mistake). Government argument is that the semiauto plus the stock in which it was holstered equal an unregistered short-barreled rifle. The District Court says no — using the Thompson Arms test, the two stocks had a purpose other than an illicit one, namely being fitted legally to the full auto.

The government has appealed, but it looks like a sound ruling to me. What saved him was having a registered full auto that took the stocks. What might put him in danger is having the semi-auto holstered in one of them (even tho under Thompson Arms, that should make no difference).