Weapons Hold: A legal practitioner’s guide to the Lautenberg Amendment

History of the Lautenberg Amendment

The Gun Control Act of 1968 was the foundation for gun control in the United States and is best known for prohibiting convicted felons from possessing firearms. However, few people realize that there was a Public Interest Exception built into the law. Specifically, the Gun Control Act of 1968 allowed military personnel, law enforcement personnel, and other government employees who were required to possess a firearm for official use, to continue to possess firearms despite a felony conviction.

In 1994, Congress enacted a domestic violence amendment to the Gun Control Act of 1968. In particular, the 1994 amendment prohibited anyone subject to a protective order for harassment, stalking, or making threats to an “intimate partner” from owning or possessing a firearm. Again, the 1994 amendment exempted military personnel, law enforcement officers, and government officials who were required to possess a firearm for official use.

In 1995, Senator Frank Lautenberg from New Jersey sponsored a bill that would also keep firearms out of the hands of anyone convicted of a misdemeanor crime of domestic violence. In 1996, Congress passed the Domestic Violence Offender Gun Ban, which came to be known as the “Lautenberg Amendment.”

Important Aspects of the Lautenberg Amendment

The Lautenberg Amendment prohibits the purchase, transportation, possession, and use of firearms or ammunition by anyone convicted of a misdemeanor domestic violence offense or has a restraining order issued against them for an act of domestic violence. Accordingly, the Lautenberg Amendment effectively extends the ban to possess firearms from convicted felons to those convicted of misdemeanor domestic violence offenses.

The Lautenberg Amendment also makes it a felony for anyone to sell or provide a firearm or ammunition to anyone they knew, or reasonably should have known, was convicted of a misdemeanor domestic violence offense or had a restraining order issued against them for an act of domestic violence. Since the Lautenberg Amendment does not contain a grandfather clause, the prohibition to possess a firearm applies to any misdemeanor domestic violence conviction that pre-dates the enactment of the Lautenberg Amendment. Therefore, there may be many people who mistakenly believe the Lautenberg Amendment does not apply to them because they were convicted of a misdemeanor domestic violence offence before Lautenberg.

Since the Lautenberg Amendment applies to anyone convicted of a misdemeanor domestic violence offense or has a restraining order issued against them for an act of domestic violence, it effectively abolished the Public Interest Exception. Therefore, the prohibition to possess a firearm under the Lautenberg Amendment applies equally to military personnel, law enforcement, and other government personnel required to possess a firearm for official use.

Is the Public Interest Exception Really Abolished under the Lautenberg Amendment?

Since the passage of the Lautenberg Amendment, military service members and law enforcement officers convicted of a misdemeanor domestic violence crimes, before and after the passage of the Lautenberg Amendment, have lost their careers due to their inability to possess a firearm so they can perform their duties. Obviously, a military member or law enforcement officer who cannot possess a firearm is not compatible with further service, or are they?

While the Lautenberg Amendment intended to abolish the Public Interest Exception, some exceptions still exist. In the military a vast majority of military personnel who are convicted of a misdemeanor domestic violence offense are separated, but a few potential exceptions still exist.

Normally a service member who has been convicted in the United States of a misdemeanor domestic violence offense is deemed non-deployable for overseas missions that require the possession of a firearm. However, if a service member is already serving outside of the United States, they may continue to perform their assigned duties until they return to the United States.

Additionally, military personnel who fall under the provisions of the Lautenberg Amendment may still be able to serve in the military if they are assigned to a position or unit that does not give them access to firearms and ammunition. Note that crew serve weapons, such as tanks, mortars, artillery, and missile launchers are not considered firearms under the Lautenberg Amendment. Therefore, a service member who has been convicted of a misdemeanor domestic violence offense may continue to perform their duties with regard to these crew serve weapons.

Finally, anyone convicted of a misdemeanor domestic violence case can seek to have the conviction expunged. If the conviction is expunged and the expungement order does not limit the individual’s right to possess weapons, then the restrictions of the Lautenberg Amendment would no longer apply. In the case of military or law enforcement personnel, the individual could successfully complete their career.

This story appeared in the July/August 2014 issue of San Diego Lawyer. It is posted with the permission of the San Diego County Bar Association.