Domestic Violence Offender Gun Ban
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The Domestic Violence Offender Gun Ban (1996) was an amendment to the Omnibus Consolidated Appropriations Act of 1997 which was passed by the 104th US Congress in the Fall of 1996. Officially known as 'Gun Ban for Individuals Convicted of a Misdemeanor Crime of Domestic Violence' -- 18 U.S.C. § 922(g)(9)'[1], 'Public Law 104-208'[2] and is often referred to as the Lautenberg Amendment after its sponsor, Frank Lautenberg.
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[edit] Summary
This law bans shipment, transport, ownership and use of guns or ammunition by individuals convicted of misdemeanor or felony domestic violence. This law also makes it unlawful to sell or give a firearm or ammunition to such person.
[edit] Court history
This law has been tested in Federal Court with the case United States v. Emerson, (No. 99-10331) (5th Cir. 2001)[3], The case involved a challenge to the Constitutionality of 18 U.S.C. § 922(g)(8)(C)(ii), a federal statute which 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 lautenberg amendment involving conviction for misdemeanor domestic violence. It was initially overturned in 1999 for being unconstitutional, but that case was reversed upon appeal[4] in 2001.
Also, the case Gillespie v. City of Indianapolis, Indiana, 185 F.3d 693 (7th 1999)[5] 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 (2d 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 (2d Cir. 1994)(ex post facto based challenge to a 922(g)(4) conviction).
Both of these challenges were denied.
[edit] Application
For individuals who find their gun rights revoked by this Act, having their misdemeanor record expunged is potentially a viable option to restore legal access to firearms, although it may require a waiting period of several years after the time of the offense.
[edit] Opposition views
Some opponents believe that the law runs contrary to the right to bear arms protected by Second Amendment to the United States Constitution, and that this law has modified the Second Amendment to be more of a revocable privilege than a fundamental protection. Other opponents believe that this is contrary to the Tenth Amendment, making firearm and ammunition possession a federal felony due to a previous state misdemeanor charge. Opponents of this law tend to describe the law by the name 'the Lautenberg Amendment' .
[edit] Proponent views
Proponents of the law lament that the law has been poorly enforced. Also they believe that the law was intended to have been a lifetime ban, expungement has proven to be an escape mechanism available to and exploited by many offenders. Proponents of this law tend to describe the law by the formal name, 'Gun Ban for Individuals Convicted of a Misdemeanor Crime of Domestic Violence', or by 'Domestic Violence Offender Gun Ban'.
