Domestic Violence: Firearms

Los Alamos
In a politically charged climate, such as the one which envelops the country at the present time, any mention of “gun control” or “gun laws” is likely to evoke lively reactions, pro and con.
Nevertheless, in an era of ever increasing numbers of incidents of domestic violence, such discussions are essential to addressing the connections between domestic violence and firearms. According to the Law Center to Prevent Gun Violence, guns increase the probability of death in incidents of domestic violence, and abused women are five times more likely to be killed by their abuser if the abuser owns a firearm. In practice, many existing gun laws are poorly defined and poorly enforced, with predictably devastating results.
The Lautenberg Amendment to the Omnibus Consolidated Appropriations Act of 1997 bans access to firearms by people convicted of crimes of domestic violence. The act applies to individuals convicted of misdemeanor domestic violence or who are under a protective (restraining) order for domestic abuse.
This federal gun ban has been upheld by the United States Supreme Court, with justices rejecting arguments that the law only covers “intentional or knowing acts of abuse and not those committed recklessly—where a person is aware of the risk that an act will cause injury, but not certain it will.” Gun-rights groups argued that perpetrators should not lose their ”constitutional right to bear arms.” The judges chose to rule otherwise, despite the argument that the ban could “trigger a lifetime ban on gun ownership.”
Unfortunately, domestic abusers frequently get to retain their guns. There are a number of reasons why this is the case:
  • Federal law does not outline a procedure for gun surrender, so states have to craft their own. Some, but not all, states have closed this gap, and these actions have proved to be successful in addressing domestic violence.
  • Even where relinquishment laws do exist, some judges don’t order abusers to surrender their guns, perhaps because they don’t see domestic violence as “a real type of violence.”
  • Some police departments aren’t familiar with relinquishment laws, or don’t have the resources to enforce them.
  • It can take weeks for protective orders to come through. A gun prohibition may become effective only when a permanent protective order is issued, providing a window during which an abuser can retain access to these weapons.
  • The so-called “boyfriend loophole” can limit the definition of domestic abuse. This gap in legal protection results in the assumption that if a couple have no children together and were never married, the appropriate charge is “simple assault,” rather than “domestic violence,” and the gun ban does not apply.
  • Domestic violence records may not appear in the federal background check data base. Absent the additional investigation that would trigger a ban on firearms, an abuser is free to retain or purchase firearms without restrictions. The National Rifle Association has consistently fought legislation to strengthen protective laws, citing due process issues that may or may not apply, while ignoring the risk to the lives of domestic violence victims.
While the National Rifle Association has not done an about-face, the organization has recently softened its opposition to certain state laws regarding the possession of firearms by abusers convicted of misdemeanor domestic abuse, served with protective orders, or deemed by a court to pose significant threats to their families. The timing of the willingness of the NRA to work with lawmakers in addressing these issues may be related to the political climate in which recent polling by the Wall Street Journal showed that 65 percent of women favor stricter gun laws, compared to 44 percent of men.
Victims of domestic abuse are almost certain to be aware of ownership of firearms by the abuser. Here are important questions for the victim to address:
Did the abuser commit a domestic violence misdemeanor? A permanent domestic violence ban must fit the legal definitions, including the use or attempted use of physical violence or force against a person who is in a close personal relationship with the abuser (spouse, parent, girlfriend or boyfriend, for example).
Did you get a restraining order? If you have gotten a final restraining order or an order of protection, you may be able to prevent the abuser from purchasing, owning, or using a gun for as long as the order remains in effect. State laws vary, and it is important that you be informed of the various legal technicalities that may exist.
What to do if you think the abuser has a gun: Once you have determined that the preceding requirements have been met, notify local law enforcement and let them know the reasons you believe the gun ban applies. An investigation will be initiated and the police will sort out the details.
Contacting an attorney who specializes in domestic violence issues is a good option.
There are numerous sources of information, including the following:
Being informed may well be the best defense!