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Can I own a gun after a domestic assault conviction?

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Q:

Can I own a gun after a domestic assault conviction?

A:

Domestic assault is a very serious criminal offense, which generally includes a systematic pattern of behaviors used to assert power and control against a family member.

Unfortunately, abusive and controlling behavior is found in every community, regardless of the gender, race, religion, age or nationality of the people involved. Identifying those likely to become abusers can also be difficult. Often, abusers seem pleasant and kind but become more manipulative and controlling as the relationship progresses, with their actions often culminating in threats and violence.

Although domestic assault actions can vary and can include physical, verbal or sexual violence, some of the most common actions include:

  • Forced sexual contact
  • Punching, kicking and biting
  • Threatening actions of intimidation
  • Shooting, stabbing or choking a family member
  • Forcing a partner to use drugs

Domestic Assault: Misdemeanor vs. Felony

Whether a domestic assault charge will be considered a misdemeanor or felony depends on the action. For example, misdemeanor charges may include charges of battery, verbal threats or simple assault. Felony domestic assault charges, however, can include charges for injuries caused by a deadly weapon, charges against a minor child, serious physical harm or death.

Can I own a gun after a domestic assault conviction?

In 1968, U.S. Congress passed the Federal Gun Control Act (GCA). This law eliminated the rights of certain groups of individuals to own or possess a firearm. Specifically, the GCA banned firearm ownership and possession of “anyone convicted of a crime punishable by imprisonment for a term exceeding a year, fugitives, drug addicts, mental incompetents, illegal aliens, those dishonorably discharged from the armed services, and those who have renounced their United States citizenship.”

After the passage of the GCA, however, public opinion began to shift with more focus on the seriousness of domestic violence and the importance of protecting victims. U.S. Congress responded in 1996 by amending the GCA (Title 18, United States Code, Section 922(g)(9)), often referred to as the Lautenberg Amendment, to include an additional provision that would make it illegal for domestic abuse offenders to “own, ship, receive, or possess firearms or ammunition affecting interstate commerce.”

Under this new amendment, not only were those accused of felony domestic assaults banned from possessing a firearm, but the law also extended to those convicted of misdemeanor crimes of domestic violence as well.

Who is barred from owning a firearm?

The statute specifically identifies offenses that will eliminate an offender’s right to possess a firearm. For example, the law now eliminates the right of any person convicted of any type of domestic violence that "has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim."

Why was the Lautenberg Amendment passed?

The Lautenberg Amendment, which is now considered a controversial piece of legislation, was unanimously supported by Congress. In fact, at the time of its passage, supporters argued that this bill represented Congress's recognition that "anyone who attempts or threatens violence against a loved one has demonstrated that he or she poses an unacceptable risk, and should be prohibited from possessing firearms." (Congressional Record, p. S11878, September 30, 1996.)

Supporters argued that the passage would not only prevent domestic abusers from getting a firearm, it would also help police confiscate weapons, and act as an additional “federal prosecution tool” where other options had failed.

Military and Police Officers Lack of Exemptions

Although the Lautenberg Amendment has been in place for the last 20 years, opponents of the law argue that it is much too broad, applying not only to felony domestic violence offenders, but also to misdemeanor domestic violence offenders.

Critics of the Amendment also argue that the law should be amended to allow for governmental law enforcement officers, as well as military personnel who have been charged with misdemeanor domestic assault charges, to be allowed to carry a firearm while on duty.

Other critics argue that the law violates a number of other clauses in the Constitution, including the Equal Protection Clause and the Ex Post Facto Clause. Others argue that it violates the Commerce Clause.

More recently, given the vague language and interpretation of the law by the lower courts, the U.S. Supreme Court has agreed to review the applicability of the law and whether it violates the Second Amendment, specifically the right of citizens to bear arms.

Bottom Line: Generally, if you have been charged with felony or misdemeanor domestic assault, or if the victim has a restraining order against you, you will not have the right to possess a firearm. With that said, however, if you are not sure whether you have the right to possess a firearm, it’s important to discuss your case with a criminal defense lawyer.

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