the Lautenberg aMenDMent: the roaD is PaveD with gooD intentions Military & Veterans Affairs Committee Chairs: Alexandra Srsic – Bay Area Legal Services, Inc. & David Veenstra- Hunter Law, P. A.
Recent events such as the church shooting in Texas have revived discussions of the need for the Lautenberg Amendment to the federal Gun Control Act. And there are avid proponents on both sides of the road.
The Lautenberg Amendment, 18 U. S. C. § 922( g)( 9), was enacted by Congress in 1996 as a way to close a loophole that was left by the previous federal firearm ban for convicted felons. That loophole had allowed some violent offenders to continue being permitted to own firearms: those offenders with domestic violence convictions, which are almost always classified as misdemeanors. The amendment solved the problem by incorporating such misdemeanor convictions into the firearm ban. Individuals with misdemeanor domestic violence convictions are prohibited from using, possessing, or transporting a firearm or ammunition.
To be barred under the Lautenberg Amendment, an individual must meet the following six elements:( 1) the individual must have been convicted of a misdemeanor offense;( 2) the offense must have contained an element of the use or attempted use of physical force, or threatened use of a deadly weapon;( 3) a domestic or family-like relationship
the amendment serves an admirable purpose— to prevent the presence of firearms in homes where a domestic violence relationship exists— when it works.
must have existed between the offender and the victim at the time of the offense;( 4) the offender must have been represented by counsel or must have knowingly and intelligently waived the right to representation;( 5) the offender must have been tried by a jury, if entitled, or knowingly and intelligently waived the right to trial by jury; and( 6) there must have not been any expungement, set aside, or pardon of the conviction unless such restoration of rights is conditioned upon the prohibition of the individual’ s right to ship, transport, possess, or receive firearms.
So what does this amendment have to do with the Texas shooter? He should not have been permitted to possess the firearms used against his victims, because he was convicted of multiple counts of assault against his wife and stepson in 2012. But his conviction was not entered into the National Criminal Information Center( NCIC) database— the background check system used when an individual attempts to purchase a firearm. Had his conviction been entered, the NCIC database would have flagged the shooter as ineligible to buy a firearm.
© Can Stock Photo / StephanieFrey
On one side of the road, gun-rights proponents have been calling for the Lautenberg Amendment’ s repeal ever since it was enacted, because they perceive it as Congressional overreach to add to an already broad ban on firearm ownership and possession for convicted felons. Those speaking out on the other side of the road are calling for more stringent reporting and review procedures to ensure that every qualifying conviction is handled in a zero-error manner.
The amendment serves an admirable purpose— to prevent the presence of firearms in homes where a domestic violence relationship exists— when it works. The problem lies in the sheer volume of cases that must be reported each year and the nation wide number of agencies required to report them. No system is perfect, but it is safe to assume that Congress will be taking another look at this amendment soon.
Author: Capt. Delanie Howell – United States Air Force Judge Advocate General’ s Corps
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