Domestic Violence Offender Gun Ban

The Domestic Violence Offender Gun Ban ("Gun Ban for Individuals Convicted of a Misdemeanor Crime of Domestic Violence", Pub. L.Tooltip Public Law (United States) 104–208 (text) (PDF), 18 U.S.C. § 922(g)(9)) 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.

Summary

The act bans shipment, transport, ownership and use of guns or ammunition by individuals convicted of misdemeanor or felony domestic violence, or who is 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 cohabit with a domestic violence offender, and indeed friends can come under very close scrutiny by dealers and law enforcement during the sales process.

Court history

This law has been tested in federal court with the case United States v. Emerson (No. 99-10331) (5th Cir. 2001). The case involved a challenge to the Constitutionality of 18 U.S.C. § 922(g)(8)(C)(ii), a federal statute which 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.

The case Gillespie v. City of Indianapolis, Indiana, 185 F.3d 693 (7th 1999) also challenged this law, and the case was rejected.

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.

Application

For individuals who find their gun rights revoked by this act, having their misdemeanor record expunged is an option to restore legal access to firearms, although it may require a waiting period of several years after the time of the offense.

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.

Proponent views

Proponents of the law lament that the law has been poorly enforced. Also, although they believe that the law was intended to have been a lifetime ban, expungement has proven to be an escape mechanism available to and allegedly exploited by some offenders.

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.

Effects on law enforcement officers

The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) sent a notice to every law enforcement agency when this law went into effect. Police officers with prior misdemeanor charges 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 BATF order at the time.

See also

• Gun Control Act
• Firearm Owners Protection Act

External links

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