The Lautenberg Law, more commonly known as the Lautenberg Amendment to the Gun Control Act of 1968, establishes a regulatory scheme designed to prevent the use of firearms in domestic violence offenses. More specifically, the Lautenberg Law makes it illegal for any persons who have been convicted of certain misdemeanor crimes of domestic violence to ship, receive, or possess firearms or ammunition affecting interstate commerce. This means that the Lautenberg Law imposes a lifetime ban on firearm possession following a qualifying misdemeanor conviction. The Lautenberg Law is controversial for two major reasons. First, its prohibitions relating to domestic violence offenses apply to misdemeanor crimes; more typically, prohibitions of this kind have been applied only to felony offenses. Second, the Lautenberg Law is controversial because it does not include a government exception for law enforcement and military personnel. Therefore, under the Lautenberg Law, military personnel and law enforcement officials such as police are prohibited from carrying firearms if they are convicted of certain misdemeanor crimes of domestic violence. Under this law, police officers and members of the military must turn in their firearms when the law is applied to them.
Congress passed the Lautenberg Law in response to a changed social, political, and legal climate concerning intimate partner violence. Historically, law enforcement often failed to intervene in domestic violence situations, and courts frequently did not prosecute batterers. This approach changed beginning in the early 1980s as a consequence of the women’s movement and increased public awareness of the problem of domestic violence. Law enforcement officials in domestic violence situations moved away from a nonarrest and nonintervention policy to a policy that emphasized less tolerance for batterers and more assistance to victims. For example, many states have passed laws requiring mandatory arrest of perpetrators when police are called to domestic violence situations. In state courts, both prosecutors and judges increasingly held perpetrators of domestic violence accountable for their violence while, at the same time, providing protection for the rights of victims. The Lautenberg Law reflects this change in philosophy of accountability and victims’ rights. Congress intended the Lautenberg Law to protect victims of domestic violence from harm by removing guns from individuals who have demonstrated a propensity toward violence against intimate partners.
Critics of the Lautenberg Law argue that its provisions violate the United States Constitution. Courts have decided constitutional challenges on several grounds, but the primary challenges concern the Commerce Clause, the Equal Protection Clause, and the Ex Post Facto Clause. Law enforcement officials and military personnel have been especially vocal in arguing that the government exception contained in other gun control laws should apply to them under the Lautenberg Law. In addition, members of Congress have introduced bills that would rescind the law or provide exemptions for law enforcement and the military, and there have been several court challenges to the law on the specific issue of the lack of a government exception for the military and law enforcement. However, thus far, the law has withstood all these challenges.
This research paper will examine the Lautenberg Law in terms of the broader context of the rationale for federal gun control legislation, including as it applies to perpetrators of domestic violence. The research paper will then provide a detailed description of the key provisions of the Lautenberg Law. Finally, we will examine the major constitutional issues upon which critics have challenged the law and how courts have ruled on these issues.
The Federal Gun Control Act of 1968
The purpose of the Federal Gun Control Act of 1968 (GCA) was to withhold access to weapons from dangerous individuals. Congress passed the GCA in response to the assassinations of Dr. Martin Luther King, Jr. and Robert F. Kennedy, as well as the increase in violent crime in the 1960s. The GCA placed licensing restrictions on the sale and manufacture of guns and criminalized certain conduct relating to the possession of firearms. Some sections of the GCA created disqualification classes in terms of individuals prohibited from possessing firearms. Disqualified individuals under the law included anyone convicted of a crime punishable by imprisonment for a term exceeding a year, fugitives, drug addicts, mental incompetents, illegal aliens, those dishonorably discharged from the armed services, and those who have renounced their United States citizenship. Under the GCA, a licensed dealer may not sell or distribute weapons to anyone who falls within one of the disqualification categories, and the law also prohibits disqualified individuals from transporting or possessing a firearm. The GCA exempts from its prohibitions any firearm or ammunition imported for, sold or shipped to, or issued for the use of the United States or any of its departments or agencies. It also exempts any state or any department, agency, or political subdivision of a state. This so-called government exception permits military, police, or government officials to possess a gun for official use, even after a felony conviction.
Congress passed, and President Bill Clinton signed, the first domestic violence–specific amendment to the GCA in 1994. This amendment, known as the Violent Crime Control and Law Enforcement Act of 1994, added a new provision to the list of individuals prohibited from possessing firearms. More specifically, the amendment prohibits anyone subject to certain orders of protection, also known as restraining orders, from owning or possessing a gun or ammunition. This amendment also prohibits anyone from selling or transferring a gun to someone who they know or should reasonably believe to be under a restraining order. In order to fall within this provision, the order of protection must restrain harassment, stalking, or threatening of an intimate partner. In addition, the amendment requires that the court make its determination after a hearing that includes a finding that the person subject to the restraining order represents a credible threat to the physical safety of an intimate partner or child.
Key Provisions of the Lautenberg Law
A few years after the passage of the Violent Crime Control and Law Enforcement Act of 1994, policymakers at the federal level argued for stronger gun control legislation because of research that indicated the frequent presence of guns in domestic violence situations. Proposed by Senator Frank Lautenberg in 1996, the Domestic Violence Offender Gun Ban was overwhelmingly passed by Congress, as an amendment to the GCA. President Clinton signed the law a few months later as part of the Omnibus Appropriations Act of 1997. The law added another disqualification category to the GCA. It provided that any person who has been convicted in any court of a misdemeanor crime of domestic violence is prohibited from owning or possessing firearms and ammunition. However, only certain kinds of domestic violence crimes qualify as requiring the firearms and ammunition prohibitions under the Lautenberg Law. More specifically, the misdemeanor crimes of domestic violence that qualify under this law require that the offense be a misdemeanor under federal or state law and have as an element the use or attempted use of physical force or the threatened use of a deadly weapon. The specific offense does not need to contain an explicit reference to domestic violence. Rather, the Lautenberg Law specifies that it refers to all misdemeanors that involve the use or attempted use of physical force when one of certain enumerated relationships exists between the perpetrator and the victim of the crime. Specifically, the perpetrator must be either (1) a current or former spouse, parent, or guardian of the victim; (2) a person who shares a child in common with the victim; (3) a person who is cohabiting or has cohabited with the victim as a spouse, parent, or guardian; or (4) a person similarly situated to a spouse, parent, or guardian of the victim.
The law contains a number of additional provisions that are important. It imposes two due process requirements; that is, constitutional protections to those charged under the law. First, the law states that a person shall not be considered to have been convicted of the domestic violence offense unless the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case. Second, whether the person is entitled to a jury trial for a misdemeanor offense depends on state law or, in federal cases, federal law. However, the Lautenberg Law specifies that a person shall not be considered to have been convicted of the domestic violence offense unless the person convicted received a trial by jury, if so entitled, or knowingly and intelligently waived that right.
It is important to remember that only a ‘‘conviction’’ triggers the weapons prohibition of the law. Often state court practices make it difficult to determine whether a conviction has occurred in a particular case. States may utilize such procedures as an ‘‘adjournment in contemplation of dismissal’’ (ACD). Such a procedure permits a court to dismiss the charges against a defendant if the person has not committed another offense within a stated period of time and has complied with other mandates imposed by the court. Under the Lautenberg Law, the question of whether a qualifying ‘‘conviction’’ exists is made by reference to the governing state law; if it is considered a conviction under state law, it will support prosecution under the Lautenberg Law.
As part of the Lautenberg Law, Congress also enacted a provision that prohibits the sale or transfer of a firearm or ammunition to a person if the transferor knows or has reasonable cause to believe that the person has been convicted of a misdemeanor crime of domestic violence. Therefore, a court should not authorize the return of a firearm to a person that the court knows or has reasonable cause to believe has been convicted of a qualifying misdemeanor crime of domestic violence.
Punishment for violations of the Lautenberg Law can be a felony conviction, a fine of $250,000, maximum imprisonment of ten years, or any combination of the above. Although the law imposes a lifetime ban on firearm possession following a qualifying misdemeanor conviction, the Lautenberg Law does provide that firearm possession rights may be restored under certain circumstances—specifically, the conviction being set aside or the person having obtained a pardon which restores civil rights. But if the specific pardon or restoration expressly provides that the person may not ship, transport, possess, or receive firearms, then the restriction against firearms possession continues.
Constitutional Challenges to the Lautenberg Law
The provisions of the Lautenberg Law have been challenged on several grounds, three of which have received considerable attention by courts. First, opponents of the law maintain that it violates the Commerce Clause of the United States Constitution. Article 1, Section 8 of the Constitution gives Congress the authority ‘‘to regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.’’ Critics charge that the Lautenberg Law violates the Commerce Clause because the law classifies as federal offenses activities that do not have an effect on interstate commerce.
Second, critics also argue that the Lautenberg Law violates the Equal Protection Clause of the U.S. Constitution. Amendment IV of the Constitution provides, in part, that ‘‘no state shall . . . deny to any person within its jurisdiction the equal protection of the laws.’’ Opponents of the law state that it violates the Equal Protection Clause because it treats domestic violence misdemeanors more harshly than other misdemeanor offenses, it punishes misdemeanor but not felony offenses, and it excludes law enforcement officers convicted of misdemeanor domestic violence offenses from the government exception contained in the Gun Control Act of 1968.
Third, opponents criticize the Lautenberg Law as a violation of the Ex Post Facto Clause of the U.S. Constitution. Article 1, Section 8 of the Constitution states that ‘‘no bill attainder or ex post facto Law shall be passed.’’ Critics argue that the Lautenberg Law violates the Ex Post Facto Clause because it prohibits the possession of a firearm by a person convicted of a domestic violence misdemeanor even if the criminal act occurred prior to the enactment of the Lautenberg Law.
Reviewing courts have rejected these challenges; however, the challenges represent a substantial debate concerning the Lautenberg Law. Each of these constitutional challenges will now be examined in more detail.
The Commerce Clause
Critics use as a basis for their challenge to the Lautenberg Law the U.S. Supreme Court’s decision in United States v. Lopez. In Lopez, the Court was deciding whether a federal statute that prohibited the possession of a firearm on school grounds exceeded congressional authority under the Commerce Clause. The Court described three kinds of activities that come within the authority of Congress under the Commerce Clause. First, Congress possesses the authority to regulate the use of the channels of interstate commerce. Second, Congress may regulate the instrumentalities of interstate commerce, or persons or things in interstate commerce. Third, Congress may also regulate activities which have a substantial relation to, and effect on, interstate commerce. The Court in Lopez determined that the statute prohibiting the possession of a firearm on school grounds did not fall within any of the three enumerated activities. The Court stated that the law was a criminal statute that had no connection with commerce or any sort of economic enterprise and did not play a role in any larger regulatory scheme. The Supreme Court also found it significant that there was no jurisdictional nexus in the statute; that is, the statute did not require the government to establish that the firearm was possessed ‘‘in or affecting commerce’’ or was received after having ‘‘been shipped or transported in interstate or foreign commerce.’’
However, in the case of the Lautenberg Law, every court that has reviewed challenges based on the Commerce Clause has determined that the Lautenberg Law readily meets the minimum constitutional requirements under the Commerce Clause. Specifically, reviewing courts have determined that the Lautenberg Law contains an appropriate jurisdictional element because it provides that it will be unlawful for individuals convicted of domestic violence misdemeanors to ship, transport, or possess a firearm in or affecting interstate commerce. Therefore, the jurisdictional language contained in the law insulates it from constitutional challenges under the Commerce Clause.
The Equal Protection Clause
Opponents of the Lautenberg Law argue that the law violates the Equal Protection Clause of the Constitution by punishing domestic violence misdemeanors more harshly than other misdemeanor offenses, by punishing misdemeanor but not felony offenses, and by excluding law enforcement officers and members of the military convicted of misdemeanor domestic violence offenses from the government exception contained in the GCA. In instances where a law does not affect what the U.S. Supreme Court considers as a suspect class or a fundamental right, the court utilizes a ‘‘rational basis’’ review as its legal standard; that is, the Court requires only that a law be rationally related to the asserted governmental interest. Courts reviewing the constitutionality of the Lautenberg Law under the Equal Protection Clause have uniformly applied a ‘‘rational basis’’ review and have held that the Lautenberg Law does not violate the Equal Protection Clause. In examining the argument of opponents that the Lautenberg Law irrationally categorizes misdemeanor domestic violence offenses more harshly than other misdemeanors, courts state that the right to equal protection under the law does not strip Congress of the authority to treat different classes of persons in different ways. As such, in light of the Lautenberg Law’s goal of reducing the likelihood that domestic violence could escalate into murder, Congress had rationally concluded that misdemeanor domestic violence offenders should not possess firearms.
Courts have also examined the argument that the Lautenberg Law unjustifiably discriminates between misdemeanor domestic offenders and felons. This argument rests on the fact that while convicted felons may regain the right to possess a firearm if they receive a pardon, have their conviction expunged, or otherwise have their civil rights restored, many jurisdictions do not deprive persons convicted of misdemeanors of their civil rights. Therefore, the Lautenberg Law creates a situation in which certain felons may be able to possess firearms, but individuals convicted of domestic violence misdemeanors will not. While courts recognize that such situations may exist, they have rejected equal protection challenges to gun control laws that rest on anomalies resulting from different state laws and regulations.
The final equal protection argument concerns whether the Lautenberg Law discriminates against law enforcement personnel and military personnel who have committed misdemeanor domestic violence offenses. Courts have rejected this argument, stating that while the ultimate effect of the Lautenberg Law may be to bar certain individuals who have committed domestic violence misdemeanors from careers that require the ability to possess a firearm, equal protection concerns are not implicated by the ‘‘uneven effects’’ of a rational classification, absent evidence of discriminatory intent. Applying the rationale to the Lautenberg Law, courts have determined that there was no evidence of discriminatory intent toward law enforcement or the military by Congress.
One of the most interesting cases concerning the equal protection challenges to the Lautenberg Law is the case of Fraternal Order of Police v. United States. The Fraternal Order of Police challenged the Lautenberg Law on behalf of two of its police officer members, each of whom had been convicted of domestic violence misdemeanors and hence had been required to relinquish their department-issued firearms. One officer was assigned to a position of lesser responsibility, and the other was put on leave. Off-duty, the officers, otherwise well suited to work as security guards, were unable to secure such employment because they were prohibited from possessing firearms. The Fraternal Order of Police challenged the statute, claiming that it infringed on the officers’ constitutional rights to possess firearms, impeding their ability to serve as law enforcement officers, diminishing their job-related responsibilities, and resulting in termination of their employment. In 1998, the appeals court of the District of Columbia focused on the equal protection part of the Fifth Amendment’s guarantee of due process (FOP I). The Fraternal Order of Police argued that because the statute did not provide a government exception for police officers convicted of a domestic violence misdemeanor, the result created an anomaly because a person with a prior felony conviction for domestic violence was eligible to carry a gun in connection with federal or state employment, while a person convicted of a domestic violence misdemeanor was not. In FOP I, the court could find no rational basis for barring police officers who commit misdemeanors from the government exception while imposing a lesser restriction on police officers who commit domestic violence felonies. The FOP I court held that the Lautenberg Law was unconstitutional because it withheld the public interest exception from those convicted of domestic violence misdemeanors. One year later, the United States was granted a rehearing by the same court, resulting in a reversal of the decision (FOP II). In this second decision, the court stated that while treating domestic violence misdemeanors more harshly than felonies seems irrational in the conventional sense of the term, it was not unreasonable for Congress to believe that existing laws and practices adequately deal with the problem of issuance of official firearms to individuals convicted of felonies but not to individuals convicted of misdemeanors. The court went on to explain that nonlegal restrictions, such as formal and informal hiring practices, may prevent felons from being issued firearms pursuant to the public interest exception, mitigating the apparent disparity created by the Lautenberg Law. Therefore, the court stated that there is a reasonably conceivable state of facts under which it is rational to believe that the felon problem makes a weaker claim to federal involvement than the misdemeanor one. The court’s reversal in the case prevented a split among the federal circuit courts regarding the validity of the Lautenberg Law in the equal protection context.
Ex Post Facto Clause
A law violates the Ex Post Facto Clause of the U.S. Constitution if it applies to events that occurred before its enactment or if it results in a disadvantage to an offender by altering the definition of criminal conduct or increasing the punishment for a crime. Opponents criticize the Lautenberg Law as being retroactive and thus a violation of the Ex Post Facto Clause because it prohibits the possession of a firearm by a person convicted of a domestic violence misdemeanor even if the criminal act occurred prior to the enactment of the law. Reviewing courts have uniformly rejected this challenge. In Hiley v. Barrett, the court clarified why the law does not violate the Ex Post Facto Clause. The court explained that the prohibited activity is the possession of a firearm and not the domestic violence misdemeanor. In other words, the possession of the firearm is the crime that is punished under the law, not the commission of a domestic violence misdemeanor. Therefore, the Lautenberg Law is not retroactive and does not violate the Ex Post Facto Clause.
Congress intended the Lautenberg Law to protect victims of intimate partner violence from potential fatality at the hands of individuals known to be prone to violence. The Lautenberg Law remains a controversial piece of legislation, primarily because it does not contain a government exception for members of the military and law enforcement personnel, found in other federal gun legislation. However, reviewing courts have rejected all challenges to the constitutionality of the law.
- Berns, Nancy. Framing the Victim: Domestic Violence, Media, and Social Problems. Hawthorne, NY: Aldine de Gruyter, 2004.
- Buzawa, Eva S. Domestic Violence: The Criminal Justice Response. Thousand Oaks, CA: Sage Publications, 2003.
- Ludwig, Jens, and Philip J. Cook, eds. Evaluating Gun Policy: Effects on Crime and Violence. Washington, DC: Brookings Institution Press, 2003.
- Roberts, Albert R. Handbook of Domestic Violence Intervention Strategies: Policies, Programs, and Legal Remedies. New York: Oxford University Press, 2002.
- Gun Control Act of 1968, Pub. L. No. 90-618, 5801, 82 Stat. 1213 (1968).
- The Domestic Violence Gun Ban of 1996, Pub. L. No. 104-208, 658, 110 Stat. 3009-371, 3009-371 to 372 (1996).
- The Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 90-618, 82 Stat. 1213 (1994).
- Fraternal Order of Police v. United States, 152 F. 3d 998 (D.C. Cir. 1998), rev’d 173 F.3d 898 (D.C. Cir. 1999).
- National Association of Government Employees, Inc. and William Hiley v. Barrett, 968 F. Supp. 1564 (N.D. Ga. 1997) aff’d, Hiley v. Barrett, 155 F.3d 1276 (11th Cir. 1998).
- United States v. Lopez, 514 U.S. 549 (1995).