Efforts to address domestic violence concerns have resulted in broad legislation aimed at preventing firearm access to those charged with or convicted of certain offenses. While in some cases these barriers to access are temporary, in other cases they have permanent implications. As a result, certain misdemeanors, even those based on minor altercations, may result in a lifetime loss of your firearm rights.
The Lautenberg Amendment
While North Carolina has no laws forfeiting firearm rights based on a misdemeanor domestic violence conviction, federal law (which supersedes state law) is a different story.
Under the “Lautenberg Amendment” to the Gun Control Act of 1968, federal law prohibits individuals convicted of a misdemeanor crime of domestic violence (“MCDV”) from possessing a firearm. 18 U.S.C. §922(g)(9).
Federal law defines a qualifying MCDV as follows:
- a federal, state, local, tribal, or territorial offense that is a misdemeanor,
- has, as an element,
- the use or attempted use of physical force, or
- the threatened use of a deadly weapon,
- committed by a
- current or former spouse,
- guardian of the victim,
- person with whom the victim shares a child in common,
- person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or
- a person similarly situated to a spouse, parent, or guardian of the victim.
Furthermore, this firearm forfeiture applies whether the underlying offense is specifically classified as a domestic violence offense or not. Moreover, this law applies regardless of the date of conviction. If you have ever been convicted of a qualifying offense, then it applies.
Closing the “Boyfriend Loophole”
Just as recently as last year, this law became even broader. With the enactment of the Bipartisan Safer Communities Act, lawmakers have closed the “Boyfriend Loophole” to the Lautenberg Amendment by extending forfeiture to misdemeanor convictions for stalking and for domestic violence incidents between current and former dating partners. The Act also requires the forfeiture of gun rights (in some cases) to those subject to domestic violence restraining orders. 18 U.S.C. §922(g)(8).
Violation of this federal law is a felony with a maximum prison term of 10 years.
Defenses and Limitations
Though these laws are broad, they are not limitless. Even in cases that have already been resolved, affirmative defenses to permanent forfeiture still exist. Also, in some cases, firearm rights may even be restored. For instance, unlike the permanent firearm ban triggered by domestic violence committed by a spouse, parent, guardian, cohabitator, or similarly situated party, firearm rights lost under the new “Boyfriend Loophole” against a dating partner can be restored after 5 years provided that certain conditions are met.
Ultimately, the best way to defend against the loss of firearm rights is of course to avoid a conviction of a qualifying offense from the get-go. In any circumstance, competent and zealous representation can make all the difference in either keeping or restoring your firearm rights.
For more information, please contact our office for a free consultation.