Posted on May 18, 2012
Federal law prohibits the purchase and possession of firearms and ammunition by persons who have been convicted in any court of a “misdemeanor crime of domestic violence” and/or who are subject to certain domestic violence protective orders.1
Federal law defines a “misdemeanor crime of domestic violence” as an offense that is a federal, state or tribal law misdemeanor and has the use or attempted use of physical force or threatened use of a deadly weapon as an element.2 In addition, the offender must:
- Be a current or former spouse, parent, or guardian of the victim;
- Share a child in common with the victim;
- Be a current or former cohabitant with the victim as a spouse, parent or guardian; or
- Be similarly situated to a spouse, parent or guardian of the victim.3
Note also that a conviction requires that the offender was represented by counsel or waived the right to counsel and was tried by a jury or waived the right to a jury, if the offense entitled the offender to a jury trial.
The federal law prohibiting subjects of protective orders from purchasing or possessing firearms and ammunition applies only if the protective order was issued after notice to the abuser and a hearing, and only if the order protects an “intimate partner” of the abuser or a child of the abuser or intimate partner.4 An “intimate partner” includes a current or former spouse, a parent of a child in common with the abuser, or an individual with whom the abuser does or has cohabited.5 The order must also contain a finding that the person presents a credible threat to the victim and must restrain him or her from certain specified conduct.6 Most state laws require these elements for the issuance of a protective order.
These federal prohibitions have significant limitations. First, domestic violence affects persons in relationships that fall outside the protections of federal law. For example, dating partners are not within the federal prohibitions unless the partners are/were cohabitating as spouses and/or have a child in common. The risk of domestic violence being committed by a dating partner is well-documented. Between 1990 and 2005, individuals killed by current dating partners made up almost half of all spouse and current dating partner homicides.7 In a recent study of applicants for domestic violence restraining orders in Los Angeles, the most common relationship between the victim and abuser was a dating relationship, and applications for protective orders were more likely to mention firearms when the parties had not lived together and were not married.8 Many states have addressed this gap in federal law by enacting laws that expand the relationships subject to firearm purchaser prohibitions for domestic abusers.
Effective enforcement of the federal prohibitions on firearm possession by domestic abusers depends largely on state and local law enforcement. Background checks at the point of transfer can prevent the purchase of firearms by domestic abusers, but cannot facilitate the removal of firearms that are already in possession of an abuser. State laws requiring removal of firearms directly from abusers can help ensure that abusers will not have continued access to firearms to threaten or harm their victims.
In addition, background checks conducted by federally licensed firearms dealers at the time of transfer of a firearm rely on state and local authorities collecting and submitting to state and federal databases complete records on misdemeanor convictions and protective orders. For a discussion of the lack of participation by some states in entering domestic violence protective order information into the National Crime Information Center database see, e.g., Julissa Jose, Disarming Domestic Violence Abusers 3 (Sept. 2003).
Click here to view additional information about domestic violence and firearms, including background information and state and local laws on the topic.
- 18 U.S.C. § 922(g)(8), (9). [↩]
- 18 U.S.C. § 921(a)(33). [↩]
- Id. [↩]
- 18 U.S.C. § 922(g)(8). [↩]
- 18 U.S.C. § 921(a)(32). [↩]
- 18 U.S.C. § 922(g)(8). [↩]
- Bureau of Justice Statistics, U.S. Dep’t of Justice, Homicide Trends in the U.S.: Intimate Homicide (July 2007). [↩]
- Katherine A. Vittes et al., Are Temporary Restraining Orders More Likely to be Issued When Applications Mention Firearms?, 30 Evaluation Rev. 266, 271, 275 (2006). [↩]