Domestic Violence Offender Gun Ban
The Domestic Violence Offender Gun Ban often called “the Lautenberg Amendment“(“Gun Ban for Individuals Convicted of a Misdemeanor Crime of Domestic Violence”, Pub.L. 104–208, 18 U.S.C. § 922(g)(9)) is an amendment to the Omnibus Consolidated Appropriations Act of 1997 enacted by the 104th United States Congress in 1996, which bans access to firearms by people convicted of crimes of domestic violence. The act is often referred to as “the Lautenberg Amendment” after its sponsor, Senator Frank Lautenberg (D – NJ).
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 in all 50 states. The act also makes it unlawful to knowingly sell or give a firearm or ammunition to such persons.
The definition of ‘convicted’ can be found in the chapter 18 U.S.C. § 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.
This law has been tested in federal court with the case United States v. Emerson (No. 99-10331) (5th Cir. 2001). 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.
The case Gillespie v. City of Indianapolis, Indiana, 185 F.3d 693 (7th Cir. 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 (2nd 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 (2nd Cir. 1994) (ex post facto based challenge to a 922(g)(4) conviction).
Both of the challenges were denied.
Likewise this law was invoked in United States v. Jardee  where it was ruled that the threat of being subjected to the gun ban did not turn an otherwise “petty” crime into a “serious” one requiring a jury trial.
||This section possibly contains original research. (July 2012)|
Arguments that have been advanced against the law include opinions that the law:
- violates the right to keep and bear arms guaranteed by the Second Amendment to the Constitution;
- is contrary to the Tenth Amendment, making firearm and ammunition possession a federal felony due to a previous state misdemeanor charge;
- is an ex post facto law, and thus, unconstitutional.
No United States Court of Appeals has accepted these arguments.
Supporting the law is that the Supreme Court has consistently ruled that Congress, under the interstate commerce clause, has the authority to regulate items that enter, or could enter, interstate commerce; guns can easily be transported across state lines. Courts have upheld the authority of the government to restrict the gun rights of categories of people, including criminals, the mentally ill, etc., ruling that prohibiting a narrow category of people from owning firearms does not violate the Second Amendment.
Application to members of the military and police
Under the federal law governing possession of firearms by police or military while on duty (18 U.S.C. § 925(a)(1)), an officer under a current protection order, or even one who has a conviction for murdering a spouse, may legally be in possession of a service firearm, but a person convicted of one of the misdemeanor violations listed in the Lautenberg Amendment (18 U.S.C. § 922(g)(9)) is prohibited from possessing any firearms or ammunition at any time under any circumstances.
As a result, a number of police officers and military personnel have been dismissed as a result of domestic violence crimes, some of which were committed before the law was passed. This is not due to the letter of the law, but is a side effect of their loss of access to the firearms needed to carry out their duties.
- Department of Justice Criminal Resource Manual
- The Consumer Law Page Article
- Misdemeanor Crime of Domestic Violence archive
- The Emerson Case
- “PUBLIC LAW 104-208”.
- “Criminal Resource Manual 1117 Restrictions on the Possession of Firearms by Individuals Convicted of a Misdemeanor Crime of Domestic Violence”.
- “FindLaw for Legal Professionals – Case Law, Federal and State Resources, Forms, and Code”.
- “Order striking jury trial”. Retrieved 2010-03-13.
- United States v. Skoien, 614 F.3d 638 (7th Cir. 2010).
- United States v. White, 593 F.3d 1199 (11th Cir. 2010).
- Criminal Resource Manual 1117 Restrictions on the Possession of Firearms by Individuals Convicted of a Misdemeanor Crime of Domestic Violence: “We now have the anomalous situation that 18 U.S.C. § 925(a)(1) still exempts felony convictions for these two groups.”