On Monday the Supreme Court delivered its last batch of judicial decisions for the year. Most of the attention went to the highly anticipated Whole Women’s Health v. Hellerstedt ruling, which struck down Texas’s admitting privileges and surgical center requirements for abortion clinics. However, it was not the only substantial women’s rights ruling of the day. The Supreme Court also ruled on Voisine v. United States, which some may remember as the case during which Clarence Thomas broke his decade of silence on the bench. Voisine v. U.S. affirmed the lower court opinion that “a reckless domestic assault qualifies as a ‘misdemeanor crime of domestic violence' that prohibits firearms possession by convicted felons under 18 U.S.C. § 922(g)(9).”
Title 18, U.S. Code, Section 922(g)(9) is more commonly known as the Lautenberg Amendment, a 1996 addition to the 1968 Federal Gun Control Act. Lautenberg prohibits those convicted of misdemeanor domestic violence from owning firearms, closing the loophole which allowed violent abusers who escaped felony charges to possess guns. In ruling against Voisine, the Supreme Court is stating that “reckless domestic assault” meets the standards of a “misdemeanor crime of domestic violence” as set forth in Lautenberg. The label “reckless” has to do with the offender’s state of mind and intentions; it is the difference between hitting someone with your car while drunk and intentionally hitting someone with your car to cause them harm. A reckless act, however, is not just an accident, such as hitting someone with your car because your brakes couldn’t stop the car in time.
Reckless acts, rather, are acts “undertaken with awareness of their substantial risk of causing injury” or “the result of a deliberate decision to endanger others." Acts committed drunkenly or during a heated argument can be classified as reckless because they occur under an altered state of mind. This means direct acts of violence such as slapping, pushing and strangling can be considered reckless if they occur while under the influence or during a dispute. Additionally, reckless acts do not have to result in injury; they just have to include use of force. So flipping a table at or throwing heavy objects at a partner, but not actually hitting them is a “reckless” act as long as the offender is drunk or in a highly emotional state.
This idea that many acts of domestic abuse are committed without premeditation and during emotional upheaval is exactly why the Lautenberg Amendment was written. It was meant to close the loophole that let abusers who occasionally flew off the handle to still own guns, as those “impulsive” offenders were usually charged with misdemeanor rather than a felony. Additionally it prevented felony-level abusers, who often take a plea deal for lesser charges, from owning firearms. Although Lautenberg does not recognize “reckless acts” by name, as they do not exist in all states, those are exactly the acts it intended to cover.
Let’s set aside the fact that we consider abusers who commit violent acts “in the heat of the moment” or intimidate but don’t harm as somehow not as bad as or vastly different than abusers who premediate their acts of violence.
This SCOTUS decision will not make a lick of difference for victims of domestic violence; at the moment, the Lautenberg Amendment is typically only enforced when domestic violence offenders commit a crime involving a gun. Until being caught during a subsequent offense where a firearm is present or being used, misdemeanor domestic violence offenders who were found guilty of using force against a spouse, child or cohabiting partner can possess and purchase as many guns as they want. In the case of Stephen Voisine, the only reason he was charged with violating federal law under the Lautenberg Amendment is because he violated another federal law.
Totally unaware of the future irony, he shot a bald eagle, the symbol for America and freedom. When the eagle was found by game wardens, they determined that it had been shot and, after some investigation, they went to question Voisine at his home. When questioned, he openly admitted to having shot the bird, thereby admitting to owning a firearm which he was not legally allowed to own due to his 14 convictions for domestic violence and assault. This is where the Lautenberg Amendment comes in; although it expressly prohibits Voisine’s gun ownership, the amendment itself has no teeth.
In theory, Stephen Voisine would have, after his first domestic violence conviction, been forced to turn over all the firearms that he owned. However, the process of required firearm surrender is not written into the Lautenberg Amendment; enforcement is left entirely up to the states. Currently, only five states have processes in place to require domestic abuse offenders to surrender their firearms. The laws require that all the offender’s firearms be turned over to a licensed firearms dealer, the state, an approved family member or another eligible person within a particular time frame ranging from two days to 60 days. Most also allow an extended holding period with the state or a licensed dealer, allowing the offender to find a legal buyer to whom they can sell the gun.
But, even with a policy in place, there is no way to confirm that all firearms are actually being surrendered. Unregistered, illegally owned, privately bought or inherited firearms cannot be accounted for by government records, so there is no way to guarantee that they are relinquished by the offender. In the many states where there is no policy, offenders may be notified by state or local government of the federal firearms prohibitions to which they are now subject, but only if that state or local government is receiving specific funds controlled by the 2005 Violence Against Women Act. However, without a policy to facilitate and enforce surrender of firearms, the notification is about as impactful as “Piracy is not a victimless crime” PSAs. The truly unfortunate thing about having to wait for an offender to use an illegally held firearm (and get caught) before enforcing Lautenberg is that the victims of the post-conviction gun offenses are usually people, not endangered birds.
The next fatal flaw in enforcement of the Lautenberg Amendment is a common one: Background checks. However, in this case, it’s not just our failure to run them, it’s the background check itself that is failing. Let’s say Stephen Voisine, in a quite a departure from his usual lawlessness, surrendered all his firearms to the proper authorities, based only on the VAWA required notification to offenders to please send in their guns if it’s not too much trouble, thanks. He could still in Maine, and many other states, easily buy a new gun through completely legal channels, without even attending a gun show where background checks are rarely run. Voisine could have gone to a federally licensed Maine firearms dealer who runs background checks and bought a gun with no issue.
This is because most states depend on the FBI-maintained National Instant Criminal Background Check System (NICS) for firearm sale background checks. Consequently, the efficacy of the NICS in flagging domestic violence offenders directly depends on states flagging prohibited purchasers in their records and submitting their domestic violence conviction records to the FBI. Maine (and 12 other states) have never submitted any records to the FBI for inclusion in the NICS. In fact, only three states – Connecticut, New Hampshire and New Mexico – submit “reasonably complete” records, and the records of those three states make up 79 percent of the total records sent to the FBI for use in the NICS. Without submission of these records, NICS depends on general records from other databases, which often do not specify the type of misdemeanor charge, whether force was used or the perpetrator’s relationship to the victim, making impossible to automatically determine whether the offender qualifies as a prohibited person. So once again, the Lautenberg Amendment is rendered virtually useless until the offender uses that legally bought but illegally owned gun in a reported crime.
Even with perfect enforcement of the Lautenberg Amendment, large groups of abusers are still allowed to own and purchase firearms, leaving many victims at risk. Currently, federal domestic violence laws only cover abuse to children, spouses or ex-spouses, cohabiting (or previously cohabiting) intimate partners and partners who have a child together. This means that gun ownership is completely legal for those who are guilty of abusing parents, siblings and, most commonly, dating partners with whom they do not share a child or a home. Additionally, federal law does not prohibit possession or purchase of firearms by convicted stalkers or those under restraining order for abusing or stalking a former or current dating partner with whom they did not live or share a child.
In the constant fight against domestic abuse and intimate partner violence, it is important that we provide legal recourse and protection for all victims so that they can move forward in their lives without fear of vengeful abusers. But a system that fails to disarm so many offenders, specifically ones who won’t serve jail time, only further endangers victims and leaves the specter of escalated, lethal violence hanging over them. Those questioning the necessity of the Lautenberg Amendment and other gun restrictions on convicted abusers should consult the many reports on the links between dating partner violence, domestic violence, stalking and gun violence. And those who, like Clarence Thomas, are concerned about the Second Amendment should remember that owning a firearm did not make the United Nation's list of basic human rights, but “life, liberty and security of person” did.