Federal Gun Rights for Felons and Domestic Violence Cases

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The 1968 Gun Control Act, along with subsequent amendments, has been enshrined in 18 U.S.C. § 921 et seq., making it illegal for anyone convicted of a felony or subject to a domestic violence protective order to possess a firearm. This legislation extended the ban on firearms to individuals convicted of a "misdemeanor crime of domestic violence." If you value your gun rights and find yourself accused of domestic battery, contact a battery criminal defense lawyer immediately so they can advise you in protecting your rights.

The bill received overwhelming support in Congress, reflecting their acknowledgment that "anyone who attempts or threatens violence against a loved one has demonstrated that he or she poses an unacceptable risk and should be prohibited from possessing firearms." (Congressional Record, p. S11878, September 30, 1996). This new provision has three interconnected impacts on law enforcement. Firstly, it helps prevent individuals with a history of domestic violence from obtaining firearms. Secondly, it assists law enforcement by providing a means to remove firearms from potentially explosive domestic situations, thus reducing the risk of deadly violence. Finally, it serves as a federal prosecution tool in certain situations where other options have failed.

Under this statute, a "misdemeanor crime of domestic violence" (MCDV) is defined as any state or federal misdemeanor that involves the use or attempted use of physical force or the threat of using a deadly weapon. The offense must be committed by a current or former spouse, parent, guardian, someone with whom the victim shares a child, or someone cohabiting or previously cohabited with the victim as a spouse, parent, or guardian. This definition encompasses all misdemeanors involving physical force, regardless of whether they are specifically designated as domestic violence misdemeanors. For instance, someone convicted of misdemeanor assault against their spouse would be barred from possessing firearms. It is expected that this definition may be subject to legal challenges, in which case the Terrorism and Violent Crime Section should be notified for assistance.

The prohibition on possessing firearms applies to individuals convicted of such misdemeanors at any time, even if the conviction occurred prior to the enactment of the new law on September 30, 1996. Previous court cases have rejected challenges based on ex post facto claims, affirming the validity of convictions under 18 U.S.C. § 922(g)(1) and § 922(g)(4) (United States v. Brady, 26 F.3d 282 (2d Cir.), cert. denied, 115 S.Ct. 246 (1994), and United States v. Waters, 23 F.3d 29 (2d Cir. 1994)).

There are limitations on previous convictions as outlined in 18 U.S.C. § 921(a)(33)(B). To qualify, the defendant must have been represented by counsel or waived the right to counsel knowingly and intelligently at the time of the previous conviction. If the offense entitled the person to a jury trial, the case must have been tried by a jury, or the person must have knowingly and intelligently waived the right to a jury trial through a guilty plea or other means. Additionally, the conviction cannot have been expunged, set aside, or pardoned unless the pardon, expungement, or restoration of civil rights explicitly prohibits the person from possessing firearms. The issue of the restoration of civil rights must be meticulously researched for each potential defendant. In some cases, individuals may lose their civil rights upon imprisonment, with restoration occurring upon release. However, in states where a sentence of imprisonment is not served, civil rights may not be lost, and this limitation may not apply. Nonetheless, United States v. Indelicato, 97 F.3d 627 (1st Cir. 1996) held that if one group of felons can possess firearms because their rights were automatically taken away and later restored, those who do not have their rights taken away may also possess firearms. For assistance in analyzing specific cases, the Terrorism and Violent Crime Section can provide support.

It is important to note that there is no law enforcement exception. The new statute eliminated the exemption that 18 U.S.C. § 925(a)(1) provided to police officers and military personnel. Therefore, as of the effective date, even on duty, members of the military and police officers with qualifying misdemeanor convictions are unable to possess firearms.