This is a lawyer?

Jay Honohan, whom the Iowa City Press-Citizen alleges is a local attorney, wants him some gun control. Sadly, he’s not very well informed on the subject.

“There is a case holding the government can regulate. It is US v. Miller (1939). In which a unanimous court held against a felon owning a sawed off shotgun. Judge Scalia even cited that case as support for the regulations he mentioned.”

If Honohan is really a lawyer, I fear for his clients’ welfare. Just on MILLER, he is flat wrong on three points.

1. MILLER wasn’t about whether a felon could own any type of firearm. At that time, there was no federal law making felons prohibited persons. That came decades later, with the passage of the Gun Control Act of 1968.

2. MILLER wasn’t about whether any person could possess any type of firearm. At that time, there were no federal firearms bans.

3. MILLER was about whether the government could require that a possessor of a short-barrel shotgun register it and obtain a tax stamp. The Court ruled the government could so regulate short-barrel shotguns because it had not been shown that they were used by the military; military style weapons being protected by the Second Amendment.

Is Honohan any better on state laws?

“Sam, states like Iowa have to get rid of laws like that silly ‘you can shoot someone if he trespasses on your yard’ law. I call that a shoot your neighbor law.”

I am not aware of any state that allows the use of deadly force just for trespassing (if someone does, drop a citation in comments). Typically, some other element must be present, such as unlawful entry into a dwelling.

In fact, Iowa Code CHAPTER 704 seems to be pretty typical. 704.4, Defense of property, allows reasonable force in defense of property. Shooting someone only because he is trespassing is not reasonable. Some other element must be present to justify deadly force (704.2).

A person is justified in the use of reasonable force to prevent or terminate criminal interference with the person’s possession or other right in property. Nothing in this section authorizes the use of any spring gun or trap which is left unattended and unsupervised and

“Reasonable force” is 704.1.

“Reasonable force” is that force and no more which a reasonable person, in like circumstances, would judge to be necessary to prevent an injury or loss and can include deadly force if it is reasonable to believe that such force is necessary to avoid injury or risk to one’s life or safety or the life or safety of another, or it is reasonable to believe that such force is necessary to resist a like force or threat.

So… NO. Iowa does not allow you to shooter trespassers just for trespassing. It may allow you to do so if that person posed a threat to you or someone else.

A real lawyer should know that. If this man is your lawyer, you might want to contact the Iowa Bar Association.

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