One of the reasons domestic violence is such an important subject in family law is the impact it has on gun ownership. With the issue of guns in the forefront of discussions throughout the land in light of recent events, I thought I would provide some insight on one aspect of gun regulation — domestic violence.
Under federal law, any person convicted of a misdemeanor crime of domestic violence is prohibited from possessing a firearm. The law, 18 U.S. section 922, subd. (g), means any crime against a domestic relation that involves the “use . . . of physical force” or “attempted use” of such force.
It used to be that the gun ban only applied to those convicted of felony domestic violence. But the ban was changed about 20 years ago to include misdemeanors, which are usually defined as those crimes punishable by jail time of up to one year (only). With the change in the law, even possession of ammunition by those convicted a domestic violence misdemeanor is now prohibited. As was once noted by the Supreme Court in a 2009 case, United States v. Hayes, “firearms and domestic strife are a potentially deadly combination”.
Just this past month, the Supreme Court held that the firearm ban applies even to those who commit reckless assaults, not just knowing or intentional ones. The name of this recent Supreme Court case is Voisine v. United States. In the Voisine case, the Court reasoned that “Congress enacted the relevant part of section 922, subd. (g) to “prohibit domestic abusers convicted under run-of-the-mill misdemeanor assault and battery laws from possessing guns”. The Supreme Court’s decision was written by Justice Elena Kagan. An odd combination of Justices Clarence Thomas and Sonia Sotomayor dissented.
By contrast, at least here in California, a person who is restrained by a domestic violence protective order, is only prohibited from firearm possession or use and the like while the protective order is in effect. In other words, in order for section 922 to apply, the person who commits domestic violence has to be convicted of a crime. On the other hand, many who are the subjects of domestic violence protective orders are not convicted of a crime, or even arrested. And, to obtain a domestic violence protective order (i.e., a restraining order), the person here in California asking the court for protection needs only to prove by a preponderance of the evidence past acts of abuse by the other side. In a criminal case (even a misdemeanor case), there cannot be a conviction unless guilt is proven beyond a reasonable doubt — a much higher standard than preponderance of the evidence.