The Domestic Violence Offender Gun Ban
Guns are frequently used to threaten, injure, and kill the victims of domestic violence. Most intimate partner homicide in the U.S. involves a gun or firearm. A woman's risk of homicide is five times greater if her abuser has access to a firearm.
Congress passed the Lautenberg Amendment, known as the Domestic Violence Offender Gun Ban, in 1996. It amended the Gun Control Act of 1968 and prohibited the possession of a firearm by anyone convicted of a misdemeanor crime of domestic violence. The Gun Control Act had already banned firearm possession by anyone convicted of a felony. It was also amended to prohibit a person subject to an intimate partner protection order from possessing or using firearms while the protection order is in place.
Federal domestic violence gun laws will take precedence over state laws. State domestic violence gun laws may vary state by state.
The federal Domestic Violence Offender Gun law is found at 18 U.S.C. 922 (d) and (g). It contains key provisions to keep guns out of an abuser's hands:
- When the abuser has a conviction for a felony or a misdemeanor domestic violence offense; or
- When the abuser is subject to a qualifying domestic violence restraining order or protection order and an intimate partner is the protected party
Does the Abuser Have a Domestic Violence Conviction?
The Domestic Violence Offender Gun Ban is a permanent ban on purchasing, owning, or using a firearm or gun. It applies to any abuser who has a felony conviction. It also applies to any abuser with a misdemeanor conviction for domestic violence. A domestic violence misdemeanor crime involves:
- The use or attempted use of physical force (simple assault, assault and battery); or
- The threatened use of a deadly weapon
- An act against a person in a close personal relationship with the abuser (such as a current or former spouse, live-in intimate partner, persons with a child in common, dating partner)
If the victim was a dating partner and the parties never lived together, then the offender has the right to end the ban after 5 years. This only applies if the offender has not had a conviction during the 5 years for any crimes that included the use or attempted use of physical force, the threatened use of a deadly weapon, or any felony.
Is the Abuser Subject to a Qualifying Restraining Order?
- The abuser must be close to you in some way. They may be a current or former spouse. They may be the mother or father of your child. They may be a parent or guardian, a current or former live-in partner, or someone in a dating relationship.
- The abuser must receive notice of the restraining order hearing so they have a chance to attend and participate. So, an ex parte court order, where only one party was present, will not be adequate.
- The domestic violence protection order should specifically prohibit behavior that threatens or creates fear of physical injury. The order should identify the abuser as a threat to the victim's or child's physical safety.
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. A member of the Armed Forces or a police officer may have or use a gun as part of their work duties while under a protection order. They cannot have or use a gun for personal reasons while under a protection order.
What Is the Consequence of Violating the Domestic Violence Gun Ban?
The consequences for maintaining gun ownership once convicted of violating the federal crimes listed here could be severe. Under 18 USC section 924, the court may order anyone convicted of violating the federal domestic violence gun ban to pay a fine or sentence them to prison or both. The maximum prison sentence is 15 years.
How Does the Government Keep Track?
Giffords Law Center to End Gun Violence tracks statewide laws regarding removing guns from the hands of people who are a threat to the safety of others.
Only four states require the entry of misdemeanor domestic violence convictions into the federal database of the National Instant Criminal Background Check System (NICS). If a court convicted your abuser of domestic violence in another state, you can contact the district attorney's office in that state to confirm the conviction.
Neither the Gun Ban law discussed here nor the Violence Against Women Act requires states to establish procedures to ensure that people give up their guns. Only 28 states have laws to remove firearms and ammunition from those with protective orders against them. Only half specify how that should be done. Fourteen states allow police to take guns, some allow a designated third party to receive the gun.
These states do not allow the police to remove a firearm: Alaska, Arizona, Connecticut, Indiana, Maryland, and Vermont.
What Can You Do?
Because of the great variation between states, you may need to contact your local police or attorney general's office. You can inform them of the criminal conviction and explain why you believe the gun ban applies. Local or state law enforcement may notify the person about the federal or state laws that apply. They may take custody of the firearm. They may obtain a search warrant and seize the firearm. Depending on your state and the law enforcement agency, some other procedure may apply. You may want to speak with a local family law attorney to understand the law in your state.
What If Your Abuser Is a Member of the Military, the Police, or a Government Employee?
Police officers are 20-40% more likely to abuse an intimate partner than partners in the general population. While the ban resulting from a protective order does not apply to them, the ban on misdemeanor domestic violence crimes does. The challenge is to ensure that the offender gets prosecuted. Only 42% of domestic violence cases involving police ever go to trial.
If your abuser uses a government-owned gun or other weapons as part of their job, there are two different provisions at play with the gun ban. The Federal Gun Control Act (18 USC 922) covers these two situations:
- The gun ban based on a conviction for a misdemeanor (or felony) crime of domestic violence. This ban does apply to law enforcement, the military and government workers.
- The gun ban based on being the subject of a protective order: This ban does not apply to law enforcement or the military. However, the protective order itself may prohibit gun possession under the authority of state law and the court that issued the protective order.
A member of the military may face different issues based on orders of their commander or a military court. There has been a problem with information sharing between the U.S. military and the civilian law enforcement system. The Uniform Code of Military Justice (UCMJ) does not include any domestic violence-specific offenses. Domestic violence is charged as a "general offense." This may impact accurate reporting to the national crime reporting database. Also, the Armed Forces have not always submitted military protection orders into the NCIS. So, military member convictions for domestic violence may not be visible to civilian authorities.
The Senate Homeland Security and Governmental Affairs Committee has pushed for greater oversight of government employees. The aim is to ensure the screening of all government agents for domestic abuse and obtain domestic violence training.
What Impact Will Recent U.S. Supreme Court Rulings Have On Domestic Violence Gun Bans?
The U.S. Supreme Court has issued major decisions affecting firearms laws in recent years. 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 provides an individual right for citizens to keep and bear arms to defend their homes. It overturned a D.C. law that banned handguns in the city and required safe-keeping regulations for shotguns and rifles. In McDonald v. City of Chicago (2010), the Court extended its ruling in Heller to the states.
In 2022, the Supreme Court overturned a 1911 New York state law that required persons seeking a concealed carry license to show "proper cause" or "special need." In New York State Rifle and Pistol Association v. Bruen (2022), the Court found this type of law violated citizens' rights under the Second Amendment. It found that the plaintiffs had a constitutional right to carry arms for self-defense in public. It ruled that any government restriction must be consistent with our historical regulation of firearms. The court found that the New York law permitted the government too much discretion to decide when to issue a permit. The law's framework also was not consistent with historical regulation of firearms.
The Bruen decision has increased litigation in courts related to both federal and state firearm prohibitions. This includes cases related to the federal Domestic Violence Gun Ban. In United States v. Rahimi (2023), the Fifth Circuit Court of Appeals found the firearm prohibition based on protection orders violated the Second Amendment. It concluded that the gun ban on persons under protection orders was not consistent with historical firearm regulations. At present, this ruling only applies to persons in the Fifth Circuit states of Texas, Louisiana, and Mississippi. The U.S. Department of Justice plans to appeal the case to the U.S. Supreme Court.
Can I Talk to an Attorney About the Domestic Violence Offender Gun Ban?
Whether you are seeking legal protection or you are the subject of a restraining order, you may want the assistance of a lawyer. Contact a local family law attorney today to learn more.
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