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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