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.
There are also a lot of really brutal, nasty, ugly people out there: usually, but not always, guys. Not only should they not be trusted with guns — they shouldn’t be trusted with hands. A recent decision of the United States 4th Circuit Court of Appeals, U.S. v. Chester (2010), perfectly captures this situation. Chester tells us we may be posing the wrong question when we ask whether domestic violence misdemeanors should be lifetime firearms disqualifiers.
Mr. Chester was convicted of domestic violence against his adult daughter in 2004, after a “dispute arose over what Meghan had eaten for lunch that day. In this attack, Chester slammed his daughter on the kitchen table. Meghan attempted to leave but Chester followed her, threatened her, and punched her in the face. Meghan fell to the floor in pain, but Chester continued to attack her. He began kicking her as she lay on the ground [...].”
In 2007, the police again were called to Mr. Chester’s home by the woman who was then his wife. (It appears that she decided to leave his little paradise.) At 5:00 AM, Mrs. Guerrant-Chester (as she is now known) discovered her husband outside their house, receiving oral sex from a prostitute. Mr. Chester responded ungraciously to being caught, using language unfit to repeat. “Once inside, Chester grabbed Guerrant-Chester’s face and throat and strangled her while repeatedly shouting ‘I’m going to kill you!’ Chester’s daughter, Samantha Chester, heard Chester repeatedly threaten to kill Guerrant-Chester and came to the kitchen.” The police found a shotgun and a handgun when they arrived, and Mr. Chester’s fun-filled adventure in 18 USC 922(g)(9) litigation began.
Now, Mr. Chester is making the argument that his Second Amendment rights are being violated by 18 USC 922(g)(9) — and the Court of Appeals agreed that the trial court needed to rehear his case in light of the questions raised by D.C. v. Heller (2008). (The Court of Appeals also pointed out that there is some dispute among scholars about exactly how far such firearms disqualifications can proceed — listing one of my law review articles as one of the dueling scholars.)
People like Mr. Chester, and cases like his, are likely to incline the courts toward upholding what is clearly an absurd law. There is really no originalist basis for making every misdemeanor violence conviction into a lifelong firearms disability. Instead, we should be asking why some of these crimes are only misdemeanors. Brutal crimes such as Mr. Chester’s attack on his daughter deserve serious punishment as felonies. Other domestic violence crimes, such as a wife slapping her husband, or a husband throwing a cup at his wife during an argument, certainly deserve punishment and discouragement — but by throwing all of these into the same kettle, we destroy all useful distinctions.
If the Supreme Court finds the Lautenberg Amendment unconstitutional, the majority must be very clear that there is a fix: a proper division of felonies and misdemeanors. There are many domestic violence crimes that deserve to be treated as felonies — and punished that way. There are others that do not.