Domestic Violence Offender Gun Ban

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The Domestic Violence Offender Gun Ban ("Gun Ban for Individuals Convicted of a Misdemeanor Crime of Domestic Violence", Pub.L. 104-208,^[1] 18 U.S.C. § 922(g)(9)^[2]) was an amendment to the Omnibus Consolidated Appropriations Act of 1997 enacted by the 104th United States Congress in 1996. The act is often referred to as "the Lautenberg Amendment" after its sponsor, Senator Frank Lautenberg.

Contents 1 Summary 2 Court history 3 Application 3.1 Opposition views 3.2 Proponent views 3.3 Effects on the United States military 3.4 Effects on law enforcement officers 4 See also 5 External links 6 References

[edit] Summary

The act bans shipment, transport, ownership and use of guns or ammunition by individuals convicted of misdemeanor domestic violence, or who are under a restraining (protection) order for domestic abuse. The act also makes it unlawful to knowingly sell or give a firearm or ammunition to such person.

Firearms dealers are under ever increasing pressure to avoid straw purchases — a purchase made by a non-prohibited person on behalf of a prohibited person. This means that spouses, people who cohabitate with a domestic violence offender, and indeed friends can come under very close scrutiny by dealers and law enforcement during the sales process.

The definition of 'convicted' can be found in the chapter 18 USC ss 921(a)(33)(B)(ii) and has exceptions:

(33) (B) (i) A person shall not be considered to have been convicted of such an offense for purposes of this chapter, unless— (I) the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case; and (II) in the case of a prosecution for an offense described in this paragraph for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, either (aa) the case was tried by a jury, or (bb) the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise. (ii) A person shall not be considered to have been convicted of such an offense for purposes of this chapter if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

Therefore, if a person was represented by counsel, waived that right, AND, the person was entitled to a trial by jury, but also waived that right, the person shall not be considered to have been convicted if the conviction was expunged or set aside or had his civil rights (to bear arms) restored, UNLESS the further order of the court permanently revokes that right.

[edit] Court history

This law has been tested in federal court with the case United States v. Emerson (No. 99-10331) (5th Cir. 2001).^[3] See also U.S. v. Emerson, 231 Fed. Appx. 349 (5th Cir. 2007) (Same defendant seeking review of judgment). The case involved a challenge to the Constitutionality of 18 U.S.C. § 922(g)(8)(C)(ii), a federal statute that prohibited the transportation of firearms or ammunition in interstate commerce by persons subject to a court order that, by its explicit terms, prohibits the use of physical force against an intimate partner or child. Emerson does not address the portion of the Lautenberg Amendment involving conviction for misdemeanor domestic violence. It was initially overturned in 1999 for being unconstitutional, but that case was reversed upon appeal in 2001.^[4]

The case Gillespie v. City of Indianapolis, Indiana, 185 F.3d 693 (7th 1999) also challenged this law, and the case was rejected.^{[citation needed]} The ex post facto aspects of the law were challenged with:

• United States v. Brady, 26 F.3d 282 (2d Cir.), cert. denied, 115 S.Ct. 246 (1994)(denying ex post facto challenge to a 922(g)(1) conviction) and
• United States v. Waters, 23 F.3d 29 (2d Cir. 1994) (ex post facto based challenge to a 922(g)(4) conviction).

Both of the challenges were denied.

[edit] Application

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For individuals who find their gun rights revoked by the Lautenberg Amendment, having their misdemeanor record expunged or sealed WILL NOT restore legal access to firearms.

[edit] Opposition views

Some opponents believe that the law runs contrary to the right to keep and bear arms protected by Second Amendment to the United States Constitution, and that this law has modified the Second Amendment to be more of a revocable privilege than a fundamental protection. Other opponents believe that this is contrary to the Tenth Amendment, making firearm and ammunition possession a federal felony due to a previous state misdemeanor charge. Most opponents consider this act to be an ex post facto law, and thus, illegal under the U.S. constitution.

[edit] Proponent views

Proponents of this section of federal law rarely use the U.S. constitution to claim its legality. Instead, they usually prefer to use the point of view of "noble intent" to defend its enactment and enforcement upon Americans. Proponents lament that the law has been poorly enforced in their view. Although they believe that the law was intended to have been a lifetime ban, expungement of convictions has proven to be an escape mechanism available to and allegedly exploited by some offenders. Proponents of this law tend to not see this escape mechanism as a restoration of a citizen's right because they tend to not view firearms ownership as a fundamental right. Proponents view the federal government as a type of protector of women in general.

[edit] Effects on the United States military

This law effectively mandated the discharge of service members who had been convicted of domestic violence, and mandates the discharge of all service members who are convicted of domestic violence in the future. This is not explicitly written in the law, but a side effect of servicemembers' access to firearms in the course of their duties. A servicemember discharged this way is said to be Lautenberged.

[edit] Effects on law enforcement officers

The Bureau of Alcohol, Tobacco and Firearms (ATF) sent a notice to every law enforcement agency when this law went into effect. Police officers with prior misdemeanor convictions of domestic violence from years earlier were no longer permitted to possess firearms under the new federal law. Several officers were fired for such past misdemeanor offenses. Several of the gun magazines printed a copy of this new ATF order at the time.

[edit] See also

• Gun Control Act
• Firearm Owners Protection Act

[edit] External links

• Department of Justice Criminal Resource Manual
• The Consumer Law Page Article
• Misdemeanor Crime of Domestic Violence
• The Emerson Case

[edit] References