Should Domestic Violence Abusers Own Guns?

Randy Hayes of West Virginia pleaded guilty in 1994 to abusing his then-wife, with whom he had a child. He was convicted of misdemeanor battery and sentenced to one year of probation. Ten years later, police responded to another domestic violence call from his now ex-wife. Police arrived at Hayes’ home, where they found a rifle under his bed.

Hayes was subsequently indicted for violating something known as the Lautenberg Amendment of 1996, which prohibits abusers convicted of misdemeanor domestic violence from possessing firearms. In 2007, the U.S. Court of Appeals for the Fourth District in Richmond, Virginia, agreed with Hayes and dismissed the case. The government asked the Supreme Court for review and the Court agreed to hear the case in March. Last month the Supreme Court heard arguments in the case and a decision is expected next June.

In United States v. Hayes the Court will interpret the Lautenberg Amendment, a law passed following the federal Gun Control Act of 1968, a ban on convicted felons possessing firearms. The Court will either decide that the Lautenberg Amendment applies to batterers across the country, creating a total gun ban for domestic violence abusers, or it will decide that the amendment applies only in those states with specific domestic violence laws, allowing thousands of convicted batterers to own guns.

Depending on which way the ruling goes, it could result in thousands of convicted domestic violence abusers being given new access to guns. There are two main issues in this case: First, at the moment domestic violence isn’t considered a felony in all 50 states; second, gun ownership and sales are difficult to regulate, despite what the National Rifle Association might lead you to believe.

The law was rarely applied to domestic violence cases because most of those cases were treated as misdemeanors rather than felonies. So the Lautenberg Amendment, named after Sen. Frank Lautenberg, a New Jersey Democrat, was meant to close that loophole. However, at the time the amendment passed, only 17 states had specific laws criminalizing “domestic violence” misdemeanors. As a result, the law didn’t apply to most states.

“The real danger is that they’ll decide to relax the ban on guns,” said Michael Runner, Director of Legal Programs of the Family Violence Prevention Fund. “It’s going to be a disaster.” Legal Momentum, formerly NOW Legal Defense and Education Fund, estimates that between 1,000 and 1,600 women die every year at the hands of their male partners; and domestic violence abusers are 12 times more likely to kill their victims if they have a gun.

“It would be extremely dangerous for families and police officers,” said Daniel Vice, Senior Attorney at the Brady Center to Prevent Gun Violence, the group that filed a brief with the Supreme Court. On average, more than three people are killed by intimate partners every day in this country. Intimate partner homicides account for up to one-half of all homicides of females, and 14 percent of all police officer deaths occur during a response to domestic violence calls, according to the Brady Center.

Ladd Everitt, Director of Communications of the Coalition to Stop Gun Violence, said there are some people who think of it as a gun rights issue, even though “most reasonable Americans would agree that a man who beats a woman doesn’t have the right to own a firearm,” he said.

Justice Scalia may not side with the “reasonable Americans” that Everitt talks about. The Los Angeles Times reported that the Supreme Court gave a “skeptical” hearing to the Hayes case. During a key point during the hearing, Scalia noted (PDF) his apparent indifference to victims of domestic violence in an exchange with the government’s lawyer, Nicole Saharsky:

Scalia: And this was misdemeanor assault and battery, wasn’t it? Saharsky: Yes, that’s right. I mean, I really—

Scalia: So it’s not that serious an offense. That’s why we call it a misdemeanor. Saharsky: Well, I mean, certainly the offense is this particular case was serious. The charging document reflects that Respondent hit his wife all around the face until it swelled out, kicked her all around her body, kicked here in the ribs—

Scalia: Then he should have been charged with a felony, but he wasn’t. He was charged with a misdemeanor.

Everitt said the fact that Hayes was convicted of a misdemeanor and not a felony points to problems with the justice system, such as intimidation of women who report domestic violence. One in every four women will experience domestic violence in her lifetime, and most cases of domestic violence are never reported to the police, according to the National Coalition Against Domestic Violence. “This is a very, very serious issue. We’re talking about people’s lives. People could be injured or killed. This guy beat his wife pretty damn good,” Everitt said.

Runner described two other cases involving domestic violence that the Supreme Court was unsympathetic to: the Gonzalez case in Castle Rock, Colorado and the Giles case in California. Runner said that in these two cases, the Court ruled against the interests of domestic violence victims. “It’s a dangerous trend among the Supreme Court,” he said.

Even if the Court decides the gun ban applies to all 50 states, there are still loopholes in other state and federal laws that allow batterers to buy guns. The Family Violence Prevention Fund estimates that more than 2,800 people with misdemeanor convictions were able to purchase guns between 1998 and 2001 without being identified by the National Instant Criminal Background Check System. Gun dealers with federal firearm licenses (FFLs) are required to perform background checks. But private sales by unlicensed dealers are largely unregulated. A gun owner without a federal firearm license can legally sell guns from his “private collection” up to six times per year, and there is no limit to how many guns may be sold during each of these transactions. These private sales go on at gun shows, flea markets, and private homes. The only thing stopping a domestic violence offender from purchasing a gun from a private collection is his knowledge that he may be caught carrying the weapon.

In addition, the Bureau of Alcohol, Tobacco, and Firearms (BATF), the federal agency responsible for regulating gun sales, lacks the resources to provide adequate oversight of licensed gun dealers, some of whom are corrupt, according to the Family Violence Prevention Fund. Some licensed dealers knowingly allow “straw purchases” in which a person who is legally banned from buying a gun has someone else buy it on his behalf. It is nearly impossible for the BATF to track these purchases.

Currently, an estimated 34.5 percent of households have a gun, and 24 percent have a handgun. The presence of a gun in the home triples the risk of homicide in the home, according to the Brady Center. And, the proportion of male to female homicides is increasing, Runner said.

Although regular folks don’t have the power to influence the Supreme Court, there are still things you can do locally to make your voice heard. There are many states that don’t have specific laws against domestic abuse, and people in those states can urge their representatives to draft laws against domestic abuse, Vice said. “If the ruling goes the wrong way, the legislative process is critical. Activists will have to lobby to make domestic violence a felony in all 50 states if they wish to see a ban on domestic violence perpetrators possessing guns. Everyone can call, email, or request a face to face with their representatives,” Everitt said.

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