The Lautenberg Amendment and Your Second Amendment Rights

The Second Amendment to the U.S. Constitution gives Americans the right to keep and bear arms, a freedom that has been debated and fought over for years. While the Second Amendment is broad, it’s not absolute and many federal and state laws have added restrictions on who can own or possess a firearm. One of those laws is the Lautenberg Amendment which can take away your gun rights based on domestic violence convictions or protective orders.

This article will cover the Lautenberg Amendment, its legal background and how it affects your Second Amendment rights.

What is the Lautenberg Amendment?

The Lautenberg Amendment is part of the Omnibus Consolidated Appropriations Act of 1997. Named after its sponsor, then Senator Frank Lautenberg, this federal law makes it illegal for anyone convicted of a misdemeanor crime of domestic violence to own, purchase or possess a firearm. It also applies to anyone who is subject to certain protective orders for domestic violence.

Before the Lautenberg Amendment, federal law prohibited felons from owning firearms but didn’t extend that to misdemeanors. The Lautenberg Amendment changed that, recognizing that domestic violence, even in misdemeanor form, are a valid reason to restrict gun ownership, especially when firearms are involved in the home.

Who is the Lautenberg Amendment for?

The Lautenberg Amendment applies to two groups:

1. Individuals Convicted of Misdemeanor Domestic Violence Crimes A key part of the Lautenberg Amendment is its focus on misdemeanor domestic violence offenses. These are crimes that involve the use or attempted use of physical force or the threat of force against a spouse, former spouse, cohabiting partner, parent or other intimate partner. While felony convictions carry more severe penalties, misdemeanors may seem minor in comparison. But the Lautenberg Amendment recognizes that even seemingly less severe acts of violence in a domestic setting warrant restrictions on firearm possession. Importantly, the law applies retroactively. That means if you were convicted of a qualifying misdemeanor domestic violence crime before the Lautenberg Amendment went into effect in 1997, you are still not allowed to possess firearms.
2. Individuals Subject to Domestic Violence Protective Orders The Lautenberg Amendment also applies to individuals who are subject to certain restraining or protective orders for domestic violence. Specifically, the law prohibits firearm possession if you are subject to an order that:

• Was issued after a hearing in which you had the opportunity to participate.
• Restrains you from harassing, stalking or threatening an intimate partner, child or family member.
• Includes a finding that you are a credible threat to the safety of the intimate partner or child or prohibits the use of force against them.

This part of the Lautenberg Amendment acknowledges that individuals involved in domestic violence disputes are a higher risk of further violence if firearms are involved. In those situations, the law prioritizes the safety of the victim by taking away the guns.

How the Lautenberg Amendment Affects Your Second Amendment Rights

The Second Amendment gives Americans the right to keep and bear arms but it’s not absolute. The Lautenberg Amendment is one of those limits, it prohibits individuals with domestic violence convictions or protective orders from possessing firearms. For those affected by the Lautenberg Amendment, that means loss of a constitutional right potentially for life. Here’s how it affects Second Amendment rights:

1. Gun Rights Lost for Misdemeanors One of the biggest parts of the Lautenberg Amendment is that it applies to misdemeanors not just felonies. Many people assume only felons lose their right to possess firearms but under this law, even a misdemeanor domestic violence conviction can mean a permanent loss of gun rights.
   • For example, if you were convicted of misdemeanor domestic assault you could lose your Second Amendment rights for life. This is in contrast to other areas of the law where misdemeanors generally carry fewer long-term consequences than felonies. The Lautenberg Amendment takes domestic violence seriously enough to warrant the permanent removal of gun rights even for relatively minor crimes.
2. Retroactivity Another unique feature of the Lautenberg Amendment is its retroactivity. If you were convicted of a misdemeanor domestic violence offense before the law went into effect in 1997 you are still not allowed to possess firearms. Many individuals have found themselves subject to this law despite having convictions that predate the law’s enactment which raises questions of fairness and due process.
3. No Exemptions for Military or Law Enforcement The Lautenberg Amendment also applies to members of the military and law enforcement. This can be a big problem for individuals in these professions who rely on firearms to do their jobs. A domestic violence conviction can mean the loss of not only Second Amendment rights but also a career in law enforcement or the military. There are no exceptions in the law for those who need firearms for their work, so the amendment is very broad.
4. No Automatic Restoration of Rights Once you are subject to the Lautenberg Amendment there is no automatic restoration of your gun rights even if many years have passed since your conviction. In some cases, individuals can petition for relief from the firearm prohibition but the process is complex and approval is not guaranteed. This can leave individuals in a permanent state of losing their Second Amendment rights with little recourse to get them back.

Lautenberg Amendment Challenges

The Lautenberg Amendment has been challenged in court many times over the years with individuals arguing it infringes on their Second Amendment rights. Some have raised concerns about retroactivity, the punishment for misdemeanor offenses and lack of due process. But federal courts have generally upheld the law as constitutional finding it a legitimate government interest in reducing gun violence and protecting domestic violence victims.

In United States v. Castleman, (2014) the U.S. Supreme Court upheld the broad application of the Lautenberg Amendment. The Court ruled that even minor uses of force like pushing or shoving could be considered “misdemeanor domestic violence” under the law and therefore trigger the firearm prohibition. This decision further expands the reach of the Lautenberg Amendment and confirms that even low-level domestic violence offenses can mean the loss of Second Amendment rights.

Gun Rights After Lautenberg

For those affected by the Lautenberg Amendment restoring Second Amendment rights can be tough. Here are a few options:

1. Expungement or Set-Aside of Conviction In some states you may be able to have your domestic violence conviction expunged or set aside. If that happens the Lautenberg Amendment prohibition on firearms may not apply. But not all states allow expungement/sealing for domestic violence offenses and federal law does not provide a process to restore rights after a Lautenberg conviction.
2. Pardons A pardon from your state’s governor or the President of the United States could restore your gun rights. But pardons are rare and the process is highly discretionary.

Bottom Line

The Lautenberg Amendment is a major Second Amendment restriction, especially for those convicted of domestic violence misdemeanors or subject to protective orders. While the law was meant to protect domestic violence victims from further harm it has a big impact on those who lose their gun rights as a result. This is especially true for military members who may lose their careers over a D.V. conviction. Since it’s retroactive, has no exemptions, and is permanent it’s important to know the Lautenberg Amendment consequences if you’re facing domestic violence charges.

If you have been charged with Domestic violence, it is important to discuss your case with a criminal defense lawyer in your area. If you are stationed at one of the bases near Colorado Springs, including Ft Carson, Schriever AFB, Peterson AFB, NORAD, or the Air Force Academy, give us a call to discuss your case. Our criminal defense law firm handles all types of domestic violence cases (misdemeanor and felony) and domestic restraining orders/protection orders. We handle assault, harassment, criminal mischief, telephone obstruction, kidnapping, false imprisonment, and all other DV charges.

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