FacebookTwitterLinkedInJustiaGoogle+Feed

Published on:

Domestic Violence Conviction and Firearm Possession Likely Impacted by Recent Supreme Court Decision

We have been discussing the impact on the U.S. Supreme Court’s ruling in D.C. v. Heller and how that ruling might negatively impact on various gun regulations. In this installment, we discuss how this ruling might impact on the Lautenberg Act. (18 U.S.C. § 922(g)(9).)

The Lautenberg Act provides that no person who has ever been convicted of a “misdemeanor crime of domestic violence” may ever possess a firearm. (18 U.S.C. § 922(g)(9).) Anyone who violates this law is guilty of a felony and can be imprisoned in a federal prison for up to ten years. (18 U.S.C. § 924(a)(2).) This means that, if you have ever been convicted, at any time in your life, of pushing, shoving, or slapping your spouse or significant other, and you possess a firearm, you are committing a federal offense. Most criminal defense lawyers we have encountered are simply not even aware of this law.

Interestingly, while there is a federal law that permits one to apply for relief from this prohibition, see 18 U.S.C. § 925(c), Congress has enacted legislation expressly prohibiting expenditure of any federal money to allow the government to process any such applications, and, until that ban is lifted, this is, in essence, a “right without a remedy.” (See United States v. Bean (2002) 537 U.S. 71.)

In the similar vein as the “felon in possession” laws we discussed previously, can it really be said that a person who, under great duress, gently pushed her boyfriend many years ago, and caused him no physical harm, and who was charged with misdemeanor battery and convicted, and given probation and no jail time, can, consistent with the Second Amendment and Heller, be deprived forever of her right to possess a firearm? Even where the person has suffered no other criminal convictions? Could you imagine losing your right to freedom of speech, or the right to exercise your religion, also rights expressly guaranteed by the U.S. Constitution, because of similar conduct?

If one is to give any heightened scrutiny to the Lautenberg Act, the issue of whether the Act can be deemed a justifiable government restriction on the individual’s right to “keep and bear arms” becomes even thornier when one considers another provision of the Lautenberg Act that defies all logic.

Under current federal law, as we know from our earlier discussion, a person convicted of a felony cannot possess a firearm; however, there is an exception to that rule that allows convicted felons to possess guns and ammunition for government purposes (military, police, etc.) This means, for instance, that a person in the military, who has been convicted of a felony, can legally possess a firearm in the course of his or her duties in the military. This is known as the “government exception.” (See 18 U.S.C. § 925(a)(1); Hyland v. Fukuda (9th Cir. 1978) 580 F.2d 977 [government exception allows convicted felon to carry gun in course of duties as correction officer].)

Interestingly, while the “government exception” applies to felonies, the same is not true of people convicted of misdemeanor domestic violence crimes. That is, if a soldier, under extreme duress, gently pushes his girlfriend and causes her no physical harm, and is later convicted of misdemeanor domestic violence and receives probation and no jail time, that soldier cannot possess a firearm under any circumstances, even in the course of his duties in the military, meaning he will likely have to be discharged from the military and his career as a soldier will end. On the other hand, if the same soldier, for no reason at all, attacks his girlfriend with a baseball bat and breaks her jaw, and that soldier is prosecuted for felony domestic violence, and convicted, that soldier would not be barred from possessing a firearm in the scope of his duties in the military, because he has not been convicted of a “misdemeanor crime of domestic violence.”

Given the fact that the federal ban is a lifetime ban, and given that there is no way to get the ban lifted, and given the above anomaly in the law, one has to wonder whether the Lautenberg Act could survive any form of constitutional scrutiny.

If you or a loved one has a misdemeanor or felony charge in California, the criminal defense attorneys in California from Wallin & Klarich can help. Call us toll free at 888.280.6839 for your free consultation.

About Wallin & Klarich

partnersfooter

Wallin & Klarich was established in 1981. Over the past 32 years, our law firm has helped tens of thousands of families in their time of legal need. Regardless of whether our clients faced criminal or DUI charges, the loss of their driving privilege, or wanted to clean up their criminal record, we have been there to help them.