second amendment

Editor’s Note: The following article, written by Scott McMahan, was first published by the Lapeer County Tribune on Dec. 21, 2023.

LANSING – When Governor Gretchen Whitmer signed Michigan’s new gun control bills into law on November 20, she created a host of new misdemeanors for which the punishment includes the inability to own, possess, or purchase firearms or ammunition for eight years after conviction.

Democrats and most of the media lauded the signing of these bills as a huge win for public safety and victims of domestic violence. Many republicans argue it will actually make women, in particular, less safe and escalate risk of domestic violence in difficult situations.

Whitmer said in a press release issued about the new laws, “Keeping Michiganders – especially young women – safe and healthy is a top priority, and these bills will take long overdue steps to protect individuals from abuse,” stressing the claim that the bills target abusers.

A careful reading of one of the key bills in the new laws, Senate Bill 528, demonstrates the new laws clearly target many activities that are commonplace in many relationships and do not align with any other legal or clinical definition of abuse. The laws require immediate court ordered confiscation of all guns and ammunition in their possession.

Some of these new misdemeanors include:

  • Using an ice shanty, boat, or hunting or fishing lodge without permission.
  • Intentionally allowing or causing a vulnerable adult under one’s care to do something that poses an “unreasonable risk” – even if no physical harm results.
  • “Maliciously” causing any amount of damage to personal or real property – specifically, even less that $200 in damages with no minimum damage specified in the bill.
  • Appearing within sight of someone who asked not to be contacted again.
  • Using a cell phone or social media to “annoy” or “disturb the peace” of a current or former domestic partner by using vulgar or offensive language.

“This is like throwing fuel on the fire,” Rep. Jaime Greene (R-Richmond) told the Tribune. “What is likely to happen in many cases is the judge will give both partners domestic violence misdemeanors, leaving the woman unarmed and defenseless against the man, who is likely to be very angry that his guns were confiscated.”

“Most men don’t need a gun to severely hurt or kill most women, and most women can’t defend themselves against a man without a gun,” said Greene.

What is likely to happen in many cases is the judge will give both partners domestic violence misdemeanors, leaving the woman unarmed and defenseless against the man, who is likely to be very angry that his guns were confiscated.Rep. Jaime Greene (R-Richmond)

The bills signed by Whitmer determine that when these acts are perpetrated against a current or former domestic partner, the defendant will be guilty of a domestic violence misdemeanor. The required penalty will include immediate confiscation of all guns and ammunition owned or possessed by the defendant and he or she will be unable to purchase, own, or possess firearms or ammunition for eight years after conviction.

Listed below are the sections in the bills along with the provided examples of misdemeanors from those sections of Senate Bill 528.

Breaking and entering or entering without breaking

Section 115 (1): “Breaking and entering or entering without breaking any [structure or place of residence or business], whether occupied or unoccupied, without first obtaining permission to enter from the person having immediate control thereof.”

The only exceptions provided are in Sec. 115 (3): “This section does not apply to entering without breaking, any place which at the time of entry was open to the public, unless the entry was expressly denied.” The section also excludes any entry performed by or under direction of law enforcement.

Examples of potential misdemeanors listed under section 115 include:

  • Using an ice shanty, tent, boat, or hunting or fishing lodge without permission.
  • Entering a dwelling or place of business for any reason once asked to leave.
  • Entering an unlocked shed, outbuilding, or other private property without permission.

Caregiver abuse of domestic partner vulnerable adult

Section 145n (4): “A caregiver or other person with authority over the vulnerable adult is guilty of vulnerable adult abuse in the fourth degree if …[he or she] knowingly or intentionally commits an act that under the circumstances poses an unreasonable risk of harm or injury to a vulnerable adult, regardless of whether physical harm results (emphasis added).”

Destruction of property

Sec 377a (1) (f): “A person who willfully and maliciously destroys or injures the personal property of another person,” even if the damage is less than $200 (f) (emphasis added).

Sec 380 (1): “A person shall not willfully and maliciously destroy or injure another person’s house, barn, or other building or its appurtenances” and (6): “If the amount of destruction or injury is less than $200, a person who violates subsection (1) is guilty of a misdemeanor…(emphasis added)”

These sections provide no minimum amount of damages required to prosecute, so theoretically the damages could be any amount greater than $0.

Rep. Kathy Schmotlz (R-Oakland) referred to this section when she spoke into the House record prior to the vote on this bill, “HB 4945, SB 471 and SB 528 treat non-violent offenses far too harshly, undermining the principles of fairness and proportional punishment in our criminal justice system. For example, a woman in a tumultuous relationship who keys her boyfriend’s car would lose access to firearms for eight years under these bills. Obviously, that’s wrong, but these bills take a misdemeanor crime assign it a penalty normally reserved for felonies. These bills would take away a woman’s ability to protect herself in this situation.”

For example, a woman in a tumultuous relationship who keys her boyfriend’s car would lose access to firearms for eight years under these bills.Rep. Kathy Schmoltz (R-Oakland)

Stalking, harassment, and unconsented contact

Sec 411h (1)(d) defines harassment as a misdemeanor when it “would cause a reasonable individual to suffer emotional distress” and defines emotional distress as “significant mental suffering or distress that may, but does not necessarily, require medical or other professional treatment or counseling(1)(c).”

Examples of misdemeanor harassment could therefore include any behavior that the other party claims to have caused emotional distress, even if no counseling or treatment was ever required or received.

Sec 411h (1)(f) defines “unconsented contact” as a misdemeanor when “any contact with another individual that is initiated or continued without that individual’s consent or in disregard of that individual’s expressed desire that the contact be avoided or discontinued.”

Examples of misdemeanor “unconsented contact” listed in this section of the bill include:

  • Anyone attempting to contact someone after being told, “no.”
  • Leaving any sort of object, including flowers or a gift, to someone who asked not to be contacted again.
  • Appearing within sight of an individual who asked not to be contacted again.
  • Calling, texting, emailing, writing a letter, or leaving a note for someone who asked not to be contacted again.

Malicious use of telecommunications service or device

Sec. 540E (1): “A person who maliciously uses any service provided by a telecommunications service provider with intent to terrorize, frighten, intimidate, threaten, harass, molest, or annoy another person, or to disturb the peace and quiet of another person…”

Examples of misdemeanors listed under Sec. 540E include:

  • Threatening to harm not just a person but their property.
  • Falsely reporting on any website or social media that a person has been injured, is ill, has died, or is the victim of a crime or accident.
  • Deliberately refusing another’s connection to a telecommunications service.
  • Using vulgar, indecent, obscene, or offensive language on a phone call, social media, or text message.
  • Repeatedly calling and hanging up without speaking.
  • Providing your partner’s or ex’s phone number to companies that make unsolicited phone calls between 9pm and 9am.

Whitmer said, “I am proud to sign this bipartisan legislation…” Every democrat in the state House and Senate voted in support of the bills. Every republican except for just two in each chamber voted to reject them. The republicans who supported these bills are: Rep. Thomas Kuhn (R-Troy), Rep. Mark Tisdel (R-Port Huron), Sen. Mark Huizenga (R-Grand Rapids), and Sen. Michael Webber (R-Rochester Hills).

Numerous Second Amendment legal advocacy groups are reportedly preparing to file legal challenges against these laws. The success of legal challenges being prepared against these new laws will likely hinge on the outcome of U.S. v. Rahimi, a case heard by the U.S. Supreme Court in November, on the constitutionality of state laws that confiscate guns from people who have received personal protection orders in domestic abuse situations even without a conviction.

If the Supreme Court upholds similar laws in other states, it is very unlikely the brewing appeal efforts in Michigan will be successful. On the other hand, if the Court strikes the laws on the grounds that they violate the 2nd Amendment, it will breathe life into the challenges.

The New York Times and others reported after those hearings that many legal observers believed the Court was likely to rule in U.S. v. Rahimi to uphold these state laws, which would provide a nearly insurmountable barrier to any appeal efforts against these new Michigan laws.

Regardless of the eventual outcome of these legal challenges, which could take years, the laws Whitmer signed will take effect on February 13, 2024

The complete text of Senate Bill 528 can be found here.

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