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Guns, Domestic Violence, and Legal Absurdity

How the Supreme Court has a chance to restore sanity.

by
Clayton E. Cramer

Bio

January 2, 2010 - 8:13 pm
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Let me engage in an act of heresy: not all domestic violence misdemeanors are equivalent.

I know someone who works in a program for domestic violence perpetrators and victims. She tells me something that I have figured out from talking to police officers and from observing the seamy side of life of some of my relatives: There are people getting convicted of domestic violence misdemeanors who should not be getting anything more than a tongue-lashing and a fine. One guy I know (and not someone I either respect or like) defended himself from a crazy, baseball bat-wielding wife. The police arrested him; he ended up with a domestic violence misdemeanor conviction. There are women getting convicted for pushing their husband out of the way so that they could leave the house during a screaming match. We seem to have moved from a society where police would ignore domestic disputes until someone got killed to a society where even relatively mild use of force during an argument turns into a conviction. The consequences of this shift should give us pause.

As you already know, a felony conviction is a lifetime disqualifier for possessing guns or ammunition.  If you have a felony conviction from any U.S. court, even one .22 shell rattling about in your car is enough to get you up to ten years in federal prison under 18 USC 922(g). That’s any felony conviction, even a non-violent felony, as long as it was handed down by a court in the U.S. (Yet in Small v. U.S. (2005), persons convicted of felonies in foreign courts were exempted from this rule on fairly nonsensical grounds. As Justice Thomas’s dissent pointed out, “the majority’s interpretation permits those convicted overseas of murder, rape, assault, kidnapping, terrorism, and other dangerous crimes to possess firearms freely in the United States [...]. Meanwhile, a person convicted domestically of tampering with a vehicle identification number, 18 U.S.C. §511(a)(1), is barred from possessing firearms.”)

For a felony, even a non-violent felony, there is a plausible argument that a lifetime ban on gun ownership is constitutional. Felonies in 1789 were very serious crimes. You could be (and many were) executed for a felony conviction.  There are executions into the early years of the republic for not just murder, robbery, and rape, but also counterfeiting, forgery, and “buggery” (a catch-all term that included bestiality, oral sex, and anal sex). The Framers found execution acceptable for more than 160 different felonies (as was the case under English law at the time of the Revolution). By comparison to being executed, a lifelong gun ban is a pretty mild punishment.

What about misdemeanors? Many people still don’t know about the Lautenberg Amendment to the Gun Control Act of 1968, 18 USC 922(g)(9). Passed in 1996, it prohibits any person convicted of a misdemeanor crime of domestic violence from possessing a gun. It has no exemption for police officers or military personnel — even when they’re on duty. To repeat: A soldier or police officer with a domestic violence conviction — even one that was twenty years before the new law was passed — can no longer be armed, even on duty.

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