The Domestic Violence Offender Gun Ban

Perpetrators of domestic violence frequently use guns to threaten, injure, and even kill their victims. Most intimate partner homicides in the U.S. involve a gun or firearm. In light of this, lawmakers have passed domestic violence offender gun bans that prohibit convicted offenders from owning firearms.

Domestic violence gun bans aim to lower the risk of harm for domestic violence victims and survivors. Of course, these laws cannot wholly prevent domestic abuse. However, they go a long way to protect domestic violence victims.

Here, we’ll discuss federal laws that restrict domestic violence offenders from owning, possessing, or using guns and other firearms.

Laws that Ban Domestic Violence Offenders from Using Guns

In 1996, Congress passed the Lautenberg Amendment, known as the Domestic Violence Offender Gun Ban. This law was an amendment to the Gun Control Act of 1968, which prohibited people with misdemeanor domestic violence convictions from possessing a firearm.

The Gun Control Act already banned firearm possession by people convicted of a felony, but this new law took it a step further and banned DV offenders as well. The Domestic Violence Offender Gun Ban extended the ban to a person subject to an intimate partner protection order.

You can find the federal Domestic Violence Offender Gun Ban at 18 USC 922 (d) and (g). It contains key provisions to keep guns out of an abuser's hands.

Two of these provisions include:

• When the abuser has a conviction for a felony or a misdemeanor domestic violence offense    
• When the abuser is subject to a qualifying domestic violence restraining order or protection order and an intimate partner is the protected party

If a convicted abuser has a firearm, they violate the federal firearms laws and will be subject to criminal prosecution.

Domestic Violence Crimes

The Domestic Violence Offender Gun Ban permanently bans offenders from purchasing, owning, or using a firearm. It applies to any abuser who has a felony conviction. These federal gun laws also apply to any abuser with a misdemeanor conviction for domestic violence.

A domestic violence misdemeanor crime involves:

• Use of physical force
• Threatened use of a deadly weapon
• An act against a person in an intimate or close relationship with the abuser (i.e., current or former spouse, live-in intimate partner, persons with a child in common, cohabitants, dating partner, etc.)

If the victim was a dating partner but was never a cohabitant of the abuser, the offender has the right to end the ban after five years.

Qualifying Restraining Orders

If a DV offender is the subject of a final restraining order or order of protection, they cannot purchase, own, or use a gun for as long as the order lasts.

The restraining order must meet the following requirements:

• The abuser must be close to you in some way. They may be a current or former spouse or the mother or father of your child. They may be a parent or guardian of the victim, a current or former live-in partner, or someone in a dating relationship.
• The court must notify the alleged abuser of the restraining order hearing so they can attend and participate. So, an ex parte court order, where only one party was present, will not be adequate.
• The domestic violence protection order must expressly prohibit the offender from threatening physical injury.

Under 18 USC section 925(a)(1), members of the military and state and local government workers who use a firearm as part of their job are exempt from this prohibition. This includes law enforcement officers.

A member of the Armed Forces or a police officer may use a gun as part of their work duties while under a protection order. However, they cannot have or use a gun for personal reasons.

Remember, state laws vary. The National Network to End Domestic Violence can help you determine whether your restraining order qualifies under the gun ban.

Penalties for Violating the Domestic Violence Gun Ban

The consequences for violating the Domestic Violence Gun Ban are severe. Under 18 USC Section 924, the court may impose fines or a jail sentence of up to 15 years.

How Does the Government Keep Track?

Giffords Law Center to End Gun Violence tracks statewide laws that ban DV offenders from possessing or using firearms. However, only four states report misdemeanor domestic violence convictions to the federal database of the National Instant Criminal Background Check System (NICS).

Neither the gun ban law discussed here nor the Violence Against Women Act requires states to establish procedures to ensure people surrender their guns. Only 28 states allow law enforcement officers to remove firearms and ammunition from people subject to a protective order, and only half of these states specify how police officers should do this.

Fourteen states allow police to seize firearms, while others allow the DV offender to give their guns to a third party.

Can I Report Someone Who Shouldn't Have a Firearm?

Because of the great variation between states, you may need to contact your local law enforcement or attorney general's office to learn about your options. Depending on the circumstances, local or state law enforcement may notify the person about the federal or state laws that apply and take custody of the firearm.

Police officers can obtain a search warrant and seize the firearm.

Some other procedures may apply depending on your state and the law enforcement agency. You can always speak with a local family law attorney to understand the laws in your state.

Members of the Military, Law Enforcement, and Government Employees

Studies show that 20-40% of police officers may abuse an intimate partner. While the gun ban does not apply to them, the ban on misdemeanor domestic violence crimes does. The challenge is ensuring that the State prosecutes the offender. Only 42% of domestic violence cases involving police ever go to trial.

If your abuser uses a government-owned gun or other weapon as part of their job, there are two provisions of the gun ban that may impact your case.

The Federal Gun Control Act (18 USC 922) applies to these situations:

• The gun ban for people with a misdemeanor (or felony) crime of domestic violence conviction applies to members of law enforcement, the military, and government workers.
• While the gun ban for people subject to a protective order does not apply to law enforcement or the military, the protective order itself may prohibit gun possession under state law and the court that issued the order.

If a member of the military commits an act of domestic violence, they may face censure from their commander or the military courts. Unfortunately, historically, there has been a problem with the U.S. military sharing information with the civilian criminal justice system.

The Uniform Code of Military Justice (UCMJ) does not cite any domestic violence-specific offenses. Under UCMJ law, domestic violence is a "general offense." This impacts the accurate reporting of DV among military families to the national crime reporting database.

Furthermore, the Armed Forces have not always submitted military protection orders to the NCIS. Therefore, military personnel’s convictions for domestic violence may not be visible to civilian authorities.

Recent U.S. Supreme Court Rulings and Domestic Violence Gun Bans

In recent years, the U.S. Supreme Court has issued major decisions affecting firearms laws. These decisions have focused on citizens' gun rights under the Second Amendment of the U.S. Constitution.

The Second Amendment states:

“A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

In District of Columbia v. Heller (2008), the Supreme Court held that the Second Amendment gives citizens the right to keep and bear arms to defend their homes. It overturned a D.C. law that banned handguns and required safe-keeping regulations for shotguns and rifles. In McDonald v. City of Chicago (2010), the Court extended its ruling in Heller to all 50 states.

In 2022, the Supreme Court overturned a 1911 New York state law requiring people to show "proper cause" or "special need". for a concealed carry permit. In New York State Rifle and Pistol Association v. Bruen (2022), the Court found that this law violated citizens' rights under the Second Amendment.

According to the court, plaintiffs had a constitutional right to carry arms for self-defense in public. It ruled that any government restriction on the possession and use of firearms must be consistent with our historical regulation of firearms. The court held that the New York law gave the government too much discretion to decide when to issue a permit.

The Bruen decision has increased litigation in courts related to both federal and state firearm prohibitions, including cases related to the federal Domestic Violence Gun Ban. For example, in United States v. Rahimi (2023), the Fifth Circuit Court of Appeals found that firearm prohibitions for people subject to a protection order violated the Second Amendment. However, the U.S. Department of Justice filed an appeal with the U.S. Supreme Court, where the justices reversed the appellate court’s ruling and upheld the law.

Talk to an Attorney About the Domestic Violence Offender Gun Ban

If you're facing domestic violence charges or are the subject of a restraining order, you may want the assistance of a lawyer. Contact a criminal defense attorney near you today.

If you're a victim of domestic violence or wish to file a restraining order, you may also wish to consult an attorney. Contact a local family law attorney to learn more.