Content provided in partnership with

Commentary: Ever heard of the Lautenberg Amendment? You're not

Daily Record and the Kansas City Daily News-Press, Nov 5, 2005 by Matthew A. Radefeld

Many criminal defense attorneys have never heard of the Lautenberg Amendment. Some know of its ramifications, just not its name. Because there are so many avid hunters, gun collectors and military personnel in Missouri, it is something every criminal defense attorney should keep in mind when representing a client accused of a domestic violence offense.

The Lautenberg Amendment to the Gun Control Act of 1968

The Lautenberg Amendment to the Gun Control Act of 1968 became effective Sept. 30, 1996. The amendment makes it a federal offense for anyone convicted of a misdemeanor crime of domestic violence to ship, transport, possess or receive firearms or ammunition. Also, it prohibits the knowing sale or disposition of any firearm or ammunition to a person with such a conviction.

Most Popular Articles in Business: Research and Markets : Tesco Plc - SWOT Framework Analysis; Do Us a Flavor - Ben & Jerry's Issues a Call for Euphoric New Flavors; eBay made easy: ready to start an eBay business? These 5 simple steps will ...; Katrina's lawsuit surge: a legal battle to force insurers to pay for flood ...; Wal-Mart's newest distribution center opened last month near the southwest ...; More »

There is no exception for military personnel or law enforcement officers.

The Gun Control Act of 1968 (GCA) is codified in 18 U.S.C. Sect. 922. Section 922(g) of the GCA delineates nine classes of individuals who are prohibited from shipping, transporting, possessing or receiving firearms or ammunition in interstate commerce.

These targeted individuals include persons convicted of a crime punishable by a term of imprisonment exceeding one year; fugitives from justice; individuals who are unlawful users or addicts of any controlled substance; persons legally determined to be mental defective, or who have been committed to a mental institution; aliens illegally or unlawfully in the United States, as well as those who have been admitted pursuant to a nonimmigrant visa; individuals who have been discharged dishonorably from the Armed Forces; persons who have renounced United States citizenship; individuals subject to a pertinent court order (i.e. a restraining order); and finally, persons who have been convicted of a misdemeanor domestic violence offense.

It is this ninth disqualification category that is commonly referred to as the Lautenberg Amendment.

Violators of the Lautenberg Amendment face a maximum term of imprisonment of 10 years and/or a fine up to $250,000.

Elements of the Offense

Pursuant to the amendment, a misdemeanor conviction for domestic violence triggers the firearm possession prohibition only if the underlying offense has as its factual elements the use or attempted use of physical force, or the threatened use of a deadly weapon committed by a defendant against a current or former spouse, child or another similarly situated person.

Similarly situated individuals may include stepchildren or cohabiting significant others. Although crimes may be charged as domestic violence in some jurisdictions the crime will be charged as assault, battery (for those that practice in Illinois) or similar offenses and would still fall under the amendment.

Exemptions?

Basically there are none.

Under the Lautenberg Amendment, if a law enforcement officer or a member of the military is convicted of a misdemeanor crime of domestic violence they cannot possess a firearm ever again. Such a conviction may result in loss of employment or permanent reassignment to a position that does not involve carrying or possessing a firearm.

Accordingly, a police officer convicted of a qualifying misdemeanor crime of domestic violence at any time in the past may likely be terminated from employment, since they may not possess a firearm under any circumstances.

If you ever represent a servicemember, you must inform your client that pleading guilty and being convicted of a misdemeanor crime of domestic violence could have serious consequences to their military career.

Each branch of the Armed Forces have been handling this issue in different ways, but the consequences vary from reassignment, loss of military occupational specialty (MOS) and in some cases possible discharge with a less than favorable characterization.

Another group of people that this amendment has significantly affected is the blue collar worker, such as the forklift operators, truck drivers and various other personnel who manufacture, transport, receive or somehow come in contact with firearms and ammunition.

If these persons have a qualifying conviction, they will not be allowed to maintain their employment if they are considered to be in possession of firearms and/or ammunition. Generally, if an employee has the ability to put their hands on firearms or ammunition or otherwise has the ability to control firearms or ammunition, they possess them.

Rationale Behind the Amendment

According to Senator Frank Lautenberg (R-NJ), the amendment's namesake, the purpose of the legislation was to close loopholes in state law that allowed persons convicted of domestic violence offense to have firearms. (See, 142 Cong. Rec S10377-01 (daily ed. Sept. 12, 1996). Lautenberg's rationale behind this law is to prevent firearms from falling into the hands of those who are more likely to use them to commit domestic violence.

Opponents of the amendment, such as the National Rifle Association, argue that this law infringes on a person's right to bear arms because the amendment is so broad and over reaching.

Commentary: Ever heard of the Lautenberg Amendment? You're not

Daily Record and the Kansas City Daily News-Press, Nov 5, 2005 by Matthew A. Radefeld

Find Research Guides for:

Find Featured Titles for: Technology

Most Popular Articles in Business

Most Popular Publications in Business