No Small Offense

The Second Amendment—as defined by the Supreme Court in the recent District of Columbia v. Heller decision—provides “an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” In the same decision, the Court defined certain areas of firearm regulation that are both reasonable and constitutional. For example, the Court said that its opinion “should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill…”

Such “longstanding prohibitions” were defined in the 1968 Gun Control Act. The Act also prohibited “anyone who is a subject to a court order that restrains a person from harassing, stalking, or threatening an intimate partner or child of such intimate partner” from purchasing or owning a firearm(s). The U.S. Congress took further action in 1996, adopting the Lautenberg Amendment, which made it a felony for anyone convicted of a misdemeanor crime of “domestic violence” to ship, transport, possess or receive firearms or ammunition. The Amendment also made it a felony for anyone to sell or issue a firearm or ammunition to a person with such a conviction.

Unfortunately, this latter category of domestic abusers could find themselves rearmed after an upcoming Supreme Court ruling in the case of U.S. v. Hayes.

The case originated last year in the U.S. Court of Appeals for the 4^th Circuit. The defendant in the case, Randy Hayes of West Virginia, abused his wife and pled guilty to a misdemeanor battery charge in 1994. Ten years later, police responded to a domestic violence call from his home and learned that he had owned or sold five firearms (one was found on the premises). In light of this, he was convicted in 2005 of illegal gun possession under the terms of the Lautenberg Amendment.

Hayes challenged the conviction in the courts, alleging that since the West Virginia statute under which he was originally convicted did not have a domestic relationship between offender and victim as an element, he could not be prosecuted under the Lautenberg Amendment. A District Court upheld Hayes’ conviction, citing the United States v. Ball definition of domestic abuse as “needing only to have one element—the use or attempted use of physical force; the relationship between the perpetrator and the victim need not appear in the formal definition of the predicate offense.” The Court of Appeals, however, overturned this decision and ruled that the Lautenberg Amendment applies only to individuals convicted under state domestic violence laws (only 1/3 of the states currently have such statutes on the books). Exempt were individuals convicted of simple misdemeanor assault or battery (even for offenses that occur inside the home).

The case has now been appealed to the Supreme Court, which heard oral arguments on November 10. The Justices’ comments that day suggest that they are leaning toward upholding the Court of Appeals ruling. In one interesting exchange, Justice Antonin Scalia stated that possessing a gun was “lawful conduct” and the wife-beating charge against Hayes was “not that serious of an offense.” The government’s attorney countered that Hayes “hit his wife all around the face until it swelled out, kicked her all around her body, kicked her in the ribs…” Justice Scalia was unmoved, declaring that Hayes therefore “should have been charged with a felony, but he wasn’t.”

Justice Anthony Kennedy (a critical swing vote on the Court) found fault with the language of the Lautenberg Amendment, stating that it was “a mess.” Justice Ruth Bader Ginsburg countered this notion, however, saying: “Wasn’t the statute responding to just that problem, that domestic abuse tended to be charged as misdemeanors rather than felonies? And it was that fact that the Senator [Lautenberg] was responding to when he included misdemeanor. The whole purpose of this was to make a misdemeanor battery count for the statute’s purpose ... All the circuits that had this question before the floor read it the way the Government is urging.”

There is certainly a great deal at stake in the case. According to the Family Violence Prevention Fund, “Access to firearms increases the risk of intimate partner homicide more than five times than in instances where there are no weapons, according to a [2003 study entitled “Risk Factors for Femicide in Abusive Relationships: Results from a Multi-Site Case Control Study”]. In addition, abusers who possess guns tend to inflict the most severe abuse on their partners.” The Brady Center to Prevent Gun Violence has also pointed out that “about 14% of all police officer deaths occur during a response to domestic violence calls.”

It is disturbing to think that thousands of criminals such as Hayes (who failed to change his spots a full decade after his initial battery conviction) could find themselves rearmed in the near future. Indeed, a High Court ruling in favor of Hayes would force Congress to go back to the drawing table to redraft the language of the Lautenberg Amendment—an uncertain proposition even in an era of Democratic control.