Can My Gun Rights Be Taken Away with a D.V. Case?

SQ Attorneys

Victims of domestic violence are often times threatened by a perpetrator through the use of guns and other deadly weapons. The Lautenberg Amendment, known as the Domestic Violence Offender Gun Ban, amended the Gun Control Act of 1968 to prohibit anyone convicted of a domestic violence misdemeanor from possessing a firearm.

While state domestic gun laws vary, federal law takes precedence. It prohibits a person convicted of a domestic violence charge from purchasing, owning, or using guns even though the law has exceptions for law enforcement, military, and government employees in some situations.

The Domestic Violence Offender Gun Ban requires one of two things to keep guns out of an abuser’s hands:

  1. The abuser must have been convicted of a domestic violence felony or misdemeanor crime, or
  2. The victim must have a restraining order against the abuser

The Domestic Violence Offender Gun Ban is a permanent ban on purchasing, owning, or using a gun. It applies to any abuser who has been convicted of a domestic violence misdemeanor. A domestic violence misdemeanor crime involves: 1) The use or attempted use of physical violence or force (simple assault, assault and battery, aggravated assault); 2) Or the threatened use of a deadly weapon against a person in a close personal relationship with the abuser such as a spouse, parent, girlfriend, or boyfriend.

If you have a final order of protection against a person, the abuser is prevented from purchasing, owning and/or using a gun for as long as the order lasts. The restraining order must meet certain requirements. These requirements include: 1) The abuser has to be close to you in some way; 2) The abuser should have been notified of the restraining order hearing so they had a chance to attend; and 3) The restraining order should specifically prohibit behavior that threatens or creates fear of physical injury. The order should identify the abuser as a threat to the victim’s or child’s physical safety. Laws may differ from state to state, but in general, this would apply.

Only four states require that misdemeanor crimes of domestic violence are entered into the federal database of the National Instant Criminal Background Check System. If your abuser was convicted of domestic violence in another state, you can contact the district attorney’s office in that state to confirm the conviction.

Neither the Gun Ban law discussed here, nor the Violence Against Women Act requires states to establish procedures to ensure that people give up their guns. Only 28 states have laws to remove firearms and ammunition from those with protective orders against them. Only half specify how that should be done. Fourteen states allow police to take guns, some allow a designated third party to receive the gun.


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