Legal Issues

Supreme Court to Weigh New Gun Rights Issue in January

Arrested person and gavel

Domestic violence is no joke and those convicted of domestic violence crimes can be banned from ever owning a firearm. For firearm enthusiasts and legal scholars alike, the problem comes not in the crime, but in the definition of the crime. In some states it requires physical contact. In others, if the police show up to a domestic violence call—even if it was for nothing more than raised voices—the law requires that at least one party must be taken into custody and charged. [disclaimer] This law may deter crimes or serious abuse. It can also wrongly result in the suspension of the right to own a firearm based on someone raising nothing more than his or her voice. As is true of most laws, there needs to be a finding of facts and a judgment based on the seriousness of the act. However, this matter concerns a 1996 Federal law that bans shipment, transport, ownership and use of guns or ammunition by individuals convicted of misdemeanor domestic violence, or who are under a restraining (protection) order for domestic abuse in all 50 states.

Arrested person and gavel
The High Court will decided if misdemeanor domestic violations, with varying definitions of the crime, should be cause for an outright ban of firearm ownership.
The law was passed as an amendment to the H.R. 3610 Omnibus Consolidated Appropriations Act of 1997. On September 30, 1997, President Clinton hailed the passing, citing bipartisan support during a speech regarding the signing of the Act. Among the achievements he touted in the Act was the extension of the Brady Bill.

The Achilles’ heel to the bill could be that the states do not have a unified definition of domestic violence. James Castleman from Tennessee pled guilty to one count of misdemeanor domestic violence. In 2009, Castleman was found to be in possession of various guns and was charged with “illegal possession of a firearm by a person convicted of misdemeanor domestic violence.” Then, Castleman challenged the conviction and in September 2012, a U.S. Appeals court in Ohio overturned the conviction, ruling the federal weapons law did not apply in Castleman’s case. The court ruled the standard for conviction in the case was too low. The Tennessee domestic assault law does not require physical force as an element of the crime.

This led to the U.S. Supreme Court agreeing to hear the case next January. If successful, it could open gun ownership to some individuals convicted of domestic violence. Not surprisingly, the Obama administration has vowed to fight the ruling. The administration’s reasoning is that if the Appeals’ court decision were allowed to stand, it would render the law “largely inoperative,” since the definition of domestic violence varies widely between states.

Should there be a blanket law that restricts firearm ownership or possession due to a misdemeanor domestic violence conviction? Should it be handled on a case-by-case basis? Should it be stricken down altogether as an overreach because it is a misdemeanor? Sound off with your thoughts in the comment section.

[dave]

The Mission of Cheaper Than Dirt!'s blog, The Shooter's Log, is to provide information—not opinions—to our customers and the shooting community. We want you, our readers, to be able to make informed decisions. The information provided here does not represent the views of Cheaper Than Dirt!

Comments (23)

  1. This is all just another part of the plan to backdoor more gun confiscation into law. Look at what is happening in California, and the new law proposed in Illinois (everyone in a gun owning house will have to have a FOID card). They’re going to take away our rights one way or the other. And they’ll do it in small “common sense” ways, to keep the fuss and furor to a minimum. That’s why we have to resist every single law they want to pass. Don’t even let them open the door.

  2. I think Comment 1’s Question or Proposal rather is thought provoking about Sunset Clauses and Splits, but I think this should apply only in Aggravated Battery Cases involving actual Weapons… No person should indefinitely lose their 2nd Amendment Freedoms over Misdameanor Crimes ever!!!

    I understand a poster said some States must arrest a spouse who had raised voices in their home if LOE is called for raised voices… That sounds Unconstitutional to me… I guarantee you couldn’t find a single Married Couple in this Country who hasn’t had raised voices at one another at some point in their marriage! Even Deaf Mute Couples can get those Hands going fast and furious with Words…(not meant to be funny, I’ve witnessed this.). So basically this law is meant to grab as many Guns as possible on anyone unlucky enough to have Police called to their home for raised voices!

    I don’t see how this is not blatant Gun Grabbing in disguised in sheeps skin, because that’s what I see it as!

    By the way, I’m still happily married to my original, one and only wife! Neither of us has ever committed a Crime in over 40 years of Living, but God only knows we have had crossed words before on rare occasion… Who hasn’t? This is one more excuse at Gun Grabbing!

    Founding Fathers made many distinctions between Felonies and Misdemeanors… Founding Fathers also recognized the inextricable link between the right to bear Arms and the Survival of our Nation, and the Right to Bear Arms and an Individual’s ability to survive by hunting or for their certain protection from potential violent threats to their person or persons, and/or their property…

    Felons, and Dishonorable Discharges, that’s cut and dry when it comes to restrictions on Firearms, I won’t argue that initially! But at some point, even for them, the non violent or non treasonous felons and dishonorably discharged, I say with a 7 to 14 year clean record, and with Court Review they should have an opportunity to ask Society for voting rights and rights to seek ownership again of firearms for Hunting and Home Defense. I admit it makes me apprehensive, but I see it necessary for Society to give select people second chances too. For after all, what is Justice without Mercy?

  3. you need to know your true enemy and what they are actually doing.

    arguing this from merely a standpoint of “domestic violence” will fail,
    because the creators of these laws never did care about “domestic violence” at all,

    does anyone here still think chicago gun laws were aimed at stopping crime?
    isn’t it obvious most if not maybe ALL of gun laws have nothing to do with stopping crime and are instead 100% about controlling humans who aren’t in the elite power group? do you not yet understand this?

    why would any gun laws apply to YOU but not to police? are they of more value than you?

    100% of this law from ’96/97 never were about domestic violence, it was about controlling you, it was about sweeping as many of you into their locked-down system as they utterly possibly can.

    just like in 1776 we are not “represented” by anyone in the feds whatsoever, so why does everyone keep obeying these tyrants? they are all fired, act like it. live like it. disobey, ALL of what they do is in violation of the Constitution, they should all be jailed. They aren’t following “their” laws, why are you?

    own a gun, carry a gun, and if someone pokes a stick at a bear won’t the bear react by taking a swipe with it’s claws? are you of LESS value than an animal? respond to lethal attacks with lethal force, period. no man is your god – quit trying to appease them, it is a form of taking the mark of the beast. no false gods before the real God. will you be jailed? i won’t, God knows who the aggressor is and it is not me; i’m ready for Judgement, are they?

  4. I never liked this law and I think it should be repealed. I hope the SCOTUS sees the wisdom in shooting it down. A misdemeanor conviction is just that, it is NOT a felony and should not impact the 2nd. Amendment rights at all.

  5. The founding fathers did not care if someone had a criminal record, they wrote “shall not be infringed”. If there were no rules about gun ownership the US would be a much safer place and yes I include any and all firearms. “What if I wanted a tank????” asked the democrier “Well what if I had an anti-tank missile” The places where the citizens are armed are much safer than where they are not. The government drives tanks around and do you trust every tank driver that the government has? That is because they know with certainty that death awaits those who fark up with their weapon. Also stop giving everyone brain changing meds for being crazy and lock them up, it worked for years.

  6. Is domestic violence a problem? YES
    Are anty Gun politicians using domestic violence to whip up emotions? YES

    In todays paper our City District Attorney proclaimed we have a Doestic Violnce Crisis because the number of Domestic Violence Homicides DOUBLED from last year.
    – The rest of the story: Number of Domestic Violence Homicides rose from 2 the previous year to 4. This is in a city with a population of 672,538 as of the census last year. In other words from 0.0003% to 0.0006%.
    – Is that too many Domestic Violence Homicides? YES
    – it that a Crisis? NO

    He went on to say the number of Domestic Violence incidents had almost double over the previous year, ignoring the fact they the pervious year had shown almost a 40% devrease from the yere prior. That was buried deep in the story.
    AND the percentage of Domestic Violenece cased based on the population came to 0.3866%.
    – Again too many
    – but that is a percentage many cities would love to be able to boast they got dowen to.

  7. “You can be arrested for just a shouting match with just about anyone who is living in your residence. There is no process to mediate out of your record. It is inconsistent from state to state.

    Your simplistic view has no basis in reality.

    Comment by Jim P. — October 12, 2013 @ 9:00 am”

    Again Jim, my point was that the standard of “domestic violence” (your example a shouting match in some states) is not significant as a convicted felony to deny a citizen their civil rights. And even when convicted, at the fulfillment of your sentence, you have a right to get your full civil rights restored. we do not have two tiers of legal citizenship in the US, you’re either in or out. The fact that in reality this is not the case today in America just shows you how far from constitutional our corporatist partyrepresentatives have attempted to take us. I’d suggest you and everyone else fly right until you wish to fly no longer, then fly constitutionally (which is not to say domestic violence, or any violence, is acceptable other than in self defense). I’m taking a simplistic view here because that’s all that necessary. Don’t commit domestic violence, which is good for everyone- golden rule stuff – and you shouldn’t have this possibility even enter your world.

  8. It is not justice to have a Bill that condemns all who have suffered the personal trauma of a “Domestic Violence” charge. They aren’t all caused by the same reason or circumstance. A person for instance could just say that you threatened them & w/o proof. Your word/their word, there you go-Take away his/her gun rights. It’s a great way to get back @ someone isn’t it?
    The states have the right & obligation to make their laws fitted for their people. It also has the right to bring to trial anyone who breaks those laws/I however do think that each case should be tried on an individual basis.

  9. I’d suggest people just don’t commit domestic violence and you won’t have to defend yourself against this attack by authorities acting improperly. — dave — October 12, 2013

    Did you actually read any of what was written? You can be arrested for just a shouting match with just about anyone who is living in your residence. There is no process to mediate out of your record. It is inconsistent from state to state.

    Your simplistic view has no basis in reality.

  10. “and those convicted of domestic violence crimes can be banned from ever owning a firearm.” – But not legally, not constitutionally. I’d suggest people just don’t commit domestic violence and you won’t have to defend yourself against this attack by authorities acting improperly.

  11. Here in the People’s Republic Of Massachusetts anyone against whom a Domestic Restraining Order is issued (G.L. Ch. 209A) is forever banned from owning or possessing a firearm or ever having any type of firearm license. This is a far lower legal threshold than being CONVICTED of domestic violence. With an RO one is sanctioned just in case there MIGHT be some type of domestic violence in the future.

    Here is the worse news, anyone seeking an RO during non-Court business hours (any time other than 9-5, M-F, and holidays, etc.)has the RO routinely granted by an after-hours, “emergency” Judge. Even if the next day (in any event no later than 3 days after issuance) and upon review, the hearing Court determines the RO has absolutely no basis in fact, nevertheless an RO was technically issued, even for a few hours. Even it is totally bullshit and used for spite/revenge purposes, it does not matter. This is all the local Police Chiefs need to permanently deny a resident’s application as a person “unsuitable” to own/carry/use firearms and to have any type of a firearms permit. This has been upheld by the Massachusetts Supreme Judicial Court.Since the “local licensing authority” ( Police Chief) has virtually complete discretion in these matters (also upheld by the SJC), the poor bastard falsely accused is S.O.L.-forever. An RO database, just like a criminal record information history (CORI here in Mass.) database, is kept FOREVER.

    FYI, it is routine practice for many divorce family/law lawyers to use RO’s to get the husband/male occupant out of the house. It is quicker, cheaper, and more certain than due process. Sorry honest ladies, but this is true. Further, in order to obtain an RO, an applicant has to give a written affidavit signed and sworn under the pains and penalties of perjury. To date, no person filing a perjurious RO affidavit has ever been prosecuted by any Massachusetts District Attorney. How about that?

    Further, there are 53 new proposed firearms laws ready for enactment by the legislature. Some are so vague they contradict each other, some are jut plain idiotic. One even wants to classify paintball and BB guns as firearms. Folks from Sandy Hook came to all of the Massachusetts public hearings on the gun control bills ans wailed incessantly. What the hell standing do out-of-state citizens have in Massachusetts? The answer, legally and constitutionally, is NONE. Nevertheless,the hearing committee members thanked them heartily for their testimony. Pro-second amendment speakers were tolerated and limited to 3 minutes. The gun haters rambled on with virtually no limitation. What a travesty! The handwriting is on the wall….

    No wonder I’m looking for land in Wyoming. The Constitution here in Mass. is not healthy, and it is getting worse by the day for Patriots and Americans.

  12. If a person asks you, “have you stopped beating your whoever” How would your answer be worded as not to make you appear anything but guilty? The only thing you can do is hope the jury or judge (if he’s the adjudicator) will let you tell your side as well as the other party to tell theirs. So, the federal government isn’t the answer. Making blanket laws for a whole country is what gets us into all this trouble in the first place.
    Let the states handle their own laws and the way the people of that state want to live.
    Let the states run their schools
    Let the states alone.
    Let businesses do business making money and the jobs that go with it.
    Then, if the people want a change the people can change it in the voting booth in their state.
    Gun laws number nationwide in the thousands already to deal with bad people. Enforce them.
    Bad people don’t care about CCW permits, state or federal law.

  13. Actually no “crime” should ever be allowed to ban one from owning a firearm. The whole idea that someone may have a “history” of behavior, and that it is statistically likely to develop into future behavior (and that behavior might involve a firearm) is an overreach of personal liberty by taking away a right that no entity may take away by the stroke of a pen. The laws in the country of the “free” are harsher, more radical, unjustified, and more encroaching than that of some communist countries. When you have a government that can determine what you may buy or sell, how it may be bought or sold, to whom, when, how much of a “cut” (tax) they recieve etc… You have tyranny. It’s time the sheeple wake up and realize what true liberty is. I can do whatever I please so long as I do not disallow you from doing the same. And until I encroach on your liberty there is no crime, and as such should be no intervention on the part of any entity, government or otherwise.

  14. Domestic Violence is a problem in all countries, but as was stated there are circumstances that cause such. I personally think the Law Enforcement investigation needs to be more in debt when being done because it is not always as cut and dry as it seems. Men and Women are doing these type of crimes, Yet you hear more about the men being convicted then you do about women! I believe that no man or woman should ever lose their right to bear arms for making a mistake that did not involve a firearm!!!!!!!!! To be honest you can kill with your bear hands! What are they going to do next ban us from using or hands? I wish our Law makers would use common sense, but that is asking to much!!!!!! In closing I would like to point out that our founding fathers were considered criminals at one time or another and they went on to found a great nation for all of us to proudly call home!!!!!! No I do not believe anyone should lose their right over a misdemeanor domestic dispute or disagreement!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

  15. Comment #3, let us know how that works out for you! All kidding aside, everyone makes the right point, the 2nd should not be infringed upon. Criminals will always find a weapon to use wether it be a gun, knife or baseball bat.
    Anyone that has gone through a divorce has had some form of a restraining order against them, during that time they have lost their ability to posses a firearm, just think how many people that has affected.

  16. Each case should be judged on it own merit as to one fist all answer. Too many time there are circumstances to each case that many times changes the outcome of that case. So yes it should be tried on each individual case before the judge.

  17. How much of a problem is it if you are banned from owning a firearm because of prior domestic violence conviction to simply use a knife on your spouse?

  18. What happen to the day that a wife and husband could have a disagreement without the police getting involved? If there is no gun involved it should not even be considered in the case. If someone does a robbery without a weapon it is just plain robbery, if they use a weapon it is aggravated robbery two different crimes. The state and federal gov. is to big and think they need to be able to tell people how to talk, how to dress, what to eat, if they can use tobacco, or drink. It is time for these people to live their life and stay out of the citizen life. There are to standards one for the government and one for the citizens which is much higher that even the people that work for the government could not abide by. They can shoot an innocent person and get away with it because it was an honest mistake, but the law abiding can not make this mistake they have to practice and study the state laws more than any police officer to keep from going to jail. Like California guns laws they decide who has a right on who lives or dies, is the citizen life just not as important as someone who wears a badge.
    The citizens put their life on the more than most police officer because the crime happens to the citizen not the police, when was the last time a criminal walked up to a police car and car jacked it, or held an police man at gun or knife point to rob them? Police job is to investigate after the crime has happen not stop the crime.Police has no duty to protect and law abiding citizen. They do not have to show up for a 911 call. I give my up-most to respect to our true law enforcement that do put their life on the line for the citizen when they have no obligation to do so. The badge should not make a difference on who lives or dies or go to prison for the rest of their life.Should have the same standard for all.

  19. I know a someone that is now in his late twenties and a fairly reasonable guy. He got into a knock down fight with his brother in his front yard. At the time he was eighteen and his brother was seventeen. The cops showed up and he was charged with misdemeanor DV. He now gets along with his brother with no problems.

    So now he can’t own a firearm.

    I can see the good idea behind the law but the lifetime ban should go away. Just like the lifetime ban on felons owning. There are people that did something stupid at 18 and are now in there fifties They have no further incidents since then, but still can’t own a firearm. The idea is good, the implementation is bad.

  20. Thankfully this has never been an issue in my life but for one argument to take away the 2nd Amendment right is just plain wrong. I’ve seen a woman attack a man where the man had to defend himself. What if in the process of defending himself she got an elbow to the eye causing a black eye but he didn’t get any outward injury? He loses his rights and she doesn’t even though she was the attacker. I think there should be a sunset clause on these type of things. Either a certain amount of time with no further or a split with the person involved.

    How many LEO’s would lose their right to carry permanently if they used domestic violence so loosely as to lose their 2nd Amendment rights. It would obviously cost the LEO his or her job.

    Not an easy issue to preside over for sure but the way it is… isn’t good.

Your email address will not be published. Required fields are marked *

Time limit exceeded. Please click the reload button and complete the captcha once again.

Your discussions, feedback and comments are welcome here as long as they are relevant and insightful. Please be respectful of others. We reserve the right to edit as appropriate, delete profane, harassing, abusive and spam comments or posts, and block repeat offenders. All comments are held for moderation and will appear after approval.