The Domestic Violence Offender Gun Ban, often called the "Lautenberg Amendment" ("Gun Ban for Individuals Convicted of a Misdemeanor Crime of Domestic Violence", , ), is an amendment to the Omnibus Consolidated Appropriations Act of 1997, enacted by the

104th United States Congress The 104th United States Congress was a meeting of the legislative branch of the United States federal government, composed of the United States Senate and the United States House of Representatives. It met in Washington, D.C. from January 3, 199 ...

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 Frank Raleigh Lautenberg (; January 23, 1924 June 3, 2013) was an American businessman and Democratic Party politician who served as United States Senator from New Jersey from 1982 to 2001, and again from 2003 until his death in 2013. He was orig ...

(D - NJ). Lautenberg proposed the amendment after a decision from the

United States Court of Appeals for the Ninth Circuit The United States Court of Appeals for the Ninth Circuit (in case citations, 9th Cir.) is the U.S. federal court of appeals that has appellate jurisdiction over the U.S. district courts in the following federal judicial districts: * District ...

, involving underenforcement of domestic violence laws brought under the

Equal Protection Clause The Equal Protection Clause is part of the first section of the Fourteenth Amendment to the United States Constitution. The clause, which took effect in 1868, provides "''nor shall any State ... deny to any person within its jurisdiction the equal ...

of the Fourteenth Amendment to the United States Constitution. President

Bill Clinton William Jefferson Clinton ( né Blythe III; born August 19, 1946) is an American politician who served as the 42nd president of the United States from 1993 to 2001. He previously served as governor of Arkansas from 1979 to 1981 and agai ...

signed the law as part of the Omnibus Appropriations Act of 1997.

Summary

The act bans shipment, transport, possession, ownership, and use of guns or ammunition by individuals convicted of misdemeanor crime of domestic violence. The 1968 Gun Control Act and subsequent amendments had previously prohibited anyone convicted of a

felony A felony is traditionally considered a crime of high seriousness, whereas a misdemeanor is regarded as less serious. The term "felony" originated from English common law (from the French medieval word "félonie") to describe an offense that resu ...

and anyone subject to a domestic violence protective order from possessing a firearm. 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 and has exceptions: :(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.

Restraining order restrictions (preceded the Lautenberg Amendment)

The Violence Against Women Act of 1994 included a provision restricting respondents to final protective orders from possessing, receiving, transporting, or shipping firearms or ammunition. For restrictions arising from a restraining order there are several requirements before the restrictions apply as follows: :Hearing--the defendant must have had the opportunity to be heard at a hearing
Intimate Partner--the defendant and petitioner must be intimate partners
Restrains Future Contact--must restrain the defendant from harassing, stalking, or threatening behavior
Credible Threat or Physical Force--defendant must be deemed a credible threat to the petitioner or be barred from the use of physical force The hearing requirement ensures that the firearms restrictions will not apply after an initial ex parte hearing during which a temporary order is granted, but only after a longer term order is granted following a hearing in which both parties have the opportunity to be heard. The intimate partner requirement says that the relationship must be both sexual and involve cohabitation or a child in common. A Brady indicator trigger is generated when the requirements apply, resulting in the restraining order being noted in a federal database as prohibiting the possession of firearms. However, the state forms used for restraining orders do not always clearly indicate whether the specific federal criteria apply, making it difficult to determine whether the firearms restriction applies without a detailed reading of the order, the petition, and other court records.

Court history

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. ''United States v. Castleman'' (2014) challenged the application of the law to misdemeanor convictions which did not involve "the use or attempted use of physical force". In a 9–0 decision, the

United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...

held that Castleman's conviction of "misdemeanor domestic assault" did qualify as a "misdemeanor crime of domestic violence" under

Tennessee Tennessee ( , ), officially the State of Tennessee, is a landlocked state in the Southeastern region of the United States. Tennessee is the 36th-largest by area and the 15th-most populous of the 50 states. It is bordered by Kentucky to th ...

state law. Specifically holding that the ""physical force" requirement is satisfied by the degree of force that supports a common-law battery conviction — namely, offensive touching", thereby preventing him from possession of firearms.''United States v. Castleman'' (2014)
March 26, 2014. Most recently, the Supreme Court in ''Voisine v. United States'', 579 U.S. ___ (2016), decided that the Domestic Violence Offender Gun Ban in U.S. federal law extends to those convicted of reckless

domestic violence Domestic violence (also known as domestic abuse or family violence) is violence or other abuse that occurs in a domestic setting, such as in a marriage or cohabitation. ''Domestic violence'' is often used as a synonym for ''intimate partner ...

External links

Department of Justice Criminal Resource ManualThe Consumer Law Page Article

References

{{reflist United States federal criminal legislation United States federal firearms legislation Acts of the 104th United States Congress Gun politics in the United States