The act bans shipment, transport, possession, ownership, and use of guns or ammunition by individuals convicted of misdemeanor domestic violence, or who are under a restraining order for domestic abuse that falls within the criteria set by. The 1968 Gun Control Act and subsequent amendments had previously prohibited anyone convicted of a felony and anyone subject to a domestic violence protective order from possessing a firearm. The act also makes it unlawful to knowingly sell or give a firearm or ammunition to such persons. The definition of 'convicted' can be found in and has exceptions:
For restrictions arising from a restraining order there are several requirements before the restrictions apply as follows: The hearing requirement ensures that the firearms restrictions will not apply after an initial ex parte hearing during which a temporary order is granted, but only after a longer term order is granted following a hearing in which both parties have the opportunity to be heard. The intimate partner requirement says that the relationship must be both sexual and involve cohabitation or a child in common. A Brady indicator trigger is generated when the requirements apply, resulting in the restraining order being noted in a federal database as prohibiting the possession of firearms. However, the state forms used for restraining orders do not always clearly indicate whether the specific federal criteria apply, making it difficult to determine whether the firearms restriction applies without a detailed reading of the order, the petition, and other court records.
Court history
This law has been tested in federal court with the case United States v. Emerson . See also U.S. v. Emerson, 231 Fed. Appx. 349 . The case involved a challenge to the Constitutionality of 18 U.S.C. § 922, a federal statute that prohibited the transportation of firearms or ammunition in interstate commerce by persons subject to a court order that, by its explicit terms, prohibits the use of physical force against an intimate partner or child. Emerson does not address the portion of the Lautenberg Amendment involving conviction for misdemeanor domestic violence. It was initially overturned in 1999 for being unconstitutional, but that case was reversed upon appeal in 2001. The case Gillespie v. City of Indianapolis, Indiana, 185 F.3d 693 also challenged this law, and the case was rejected. The ex post facto aspects of the law were challenged with:
United States v. Brady, 26 F.3d 282, cert. denied, 115 S.Ct. 246 and
United States v. Waters, 23 F.3d 29 .
Both of the challenges were denied. Likewise this law was invoked in United States v. Jardee where it was ruled that the threat of being subjected to the gun ban did not turn an otherwise "petty" crime into a "serious" one requiring a jury trial. Most recently, United States v. Castleman challenged the application of the law to misdemeanor convictions which did not involve "the use or attempted use of physical force". In a 9-0 decision, the United States Supreme Court held that Castleman's conviction of "misdemeanor domestic assault" did qualify as a "misdemeanor crime of domestic violence" under Tennessee state law. Specifically holding that the ""physical force" requirement is satisfied by the degree of force that supports a common-law battery conviction — namely, offensive touching", thereby preventing him from possession of firearms.
