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The Domestic Violence Offender Gun Ban ("Gun Ban for Individuals Convicted of a Misdemeanor Crime of Domestic Violence", Pub.L. 104-208,[1] 18 U.S.C. § 922(g)(9)[2]) is 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.
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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.
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 cohabitate with a domestic violence offender, and indeed friends can come under very close scrutiny by dealers and law enforcement during the sales process.
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.
Therefore, if a person was represented by counsel, waived that right, AND, the person was entitled to a trial by jury, but also waived that right, the person shall not be considered to have been convicted if the conviction was expunged or set aside or had his civil rights (to bear arms) restored, UNLESS the further order of the court permanently revokes that right.
This law has been tested in federal court with the case United States v. Emerson (No. 99-10331) (5th Cir. 2001).[3] 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:
Both of the challenges were denied.
Likewise this law was invoked in United States v. Jardee [4] where it was ruled that the threat of being subjected to the gun ban did not turn a otherwise "petty" crime into a "serious" one requiring a jury trial.
For individuals who find their gun rights revoked by the Lautenberg Amendment, having their misdemeanor record expunged, pardoned or their civil rights restored will regain legal access to firearms. (18 U.S.C. § 921(a)(33)(B)(ii))
Opponents point out 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. Opponents consider this act to be an ex post facto law, and thus, illegal under the U.S. constitution.
Proponents of this section of federal law attempt to use the U.S. constitution to defend its legality. The Supreme Court has consistently ruled that Congress, under the interstate commerce clause, has the authority to regulate items that enter, or could enter, the stream of commerce. Since guns can easily be transported across state lines, this justifies federal regulation. Furthermore, courts have also upheld the ability 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.
This law effectively mandated the discharge of service members who had been convicted of domestic violence and implicitly 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 is a side effect of service members' loss of access to the firearms needed for the course of their duties. A service member discharged this way is said to be "Lautenberged."
The Bureau of Alcohol, Tobacco and Firearms (ATF) sent a notice to every law enforcement agency when this law went into effect. Police officers with prior misdemeanor convictions of domestic violence from years earlier were no longer permitted to possess firearms under the new federal law. Several officers were fired for such misdemeanor offenses committed before the law was passed. Several of the gun magazines printed a copy of this new ATF order at the time. In Speller vs. VA, Cpl. Dontae Speller of the Hampton University Police Department plead guilty to domestic assault and received anger management with 2 years of probation. Cpl. D. Speller was allowed to return to work carrying his firearm during the 2 year probationary period.
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 convicted of murdering a spouse in the past, may legally possess a service firearm, but an officer 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.[5]