The Lautenberg Amendment: An Essential Tool for Combatting Domestic Violence

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The Lautenberg Amendment: An Essential Tool for Combatting Domestic Violence

Category: Domestic Violence, Firearm Policies|Journal: North Dakota Law Review (full text)|Author: J Nelson|Year: 1999

The 1996 Lautenberg Amendment, an addition to the Gun Control Act of 1968, follows in the footsteps of the Violence Against Women Act of 1994 by providing federal tools intended to protect victims of domestic violence. Together, these statutes strive to achieve the congressional goal of making violence against women a major law enforcement priority. Most importantly, these statutes take aim at the attitudes that nurture violence against women and seek to provide the help that survivors of domestic violence need.

Essentially, the Lautenberg Amendment makes it unlawful for any person convicted of a misdemeanor crime of domestic violence to possess a gun. This has great practical import, especially in a state such as North Dakota, as it prevents gun uses such as hunting or simply having a gun on the farm.

Although much of the discussion of the Lautenberg Amendment, as well as its background, focuses on the impact of domestic violence on women, it also has impacts on juvenile law for several reasons. First, there is a direct connection; the Amendment’s definition of domestic violence includes child abuse, meaning its strictures apply to those who abuse their children as well as their spouses and domestic partners.” Therefore, the Amendment directly impacts juvenile law.

Second, there is an indirect connection, as former North Dakota Supreme Court Justice Beryl Levine discussed in Heck v. Reed, a 1995 case. In Heck, the court concluded that the statutory rebuttable presumption against awarding custody to a perpetrator of domestic violence could be overcome by clear and convincing evidence. Levine noted that experts have found that witnessing domestic abuse has a negative effect on children even if they are not themselves physically abused. Levine discussed other effects as well; for example, parents suffering from abuse are less able, because of physical and emotional injuries, to devote proper attention to their children’s needs. Finally, children of abusive parents are at an increased risk of suffering abuse themselves in the future, since “the pattern of spouse abuse usually precedes the abuse of the child.” Thus, because it seeks to reduce the effects of domestic violence, the Lautenberg Amendment has important implications for juvenile law.

The Lautenberg Amendment has been controversial, however; this is in part because it provides no exemption for law enforcement, military or government officials. This lack of exemptions in the Lautenberg Amendment conflicts with The Gun Control Act of 1968 which does provide exemptions for these individuals when convicted of a domestic violence felony. This has resulted in a number of constitutional attacks on the Amendment. One of these challenges partially, and briefly, succeeded recently, as the United States Court of Appeals for the District of Columbia found the Amendment, in part, violates the Equal Protection Clause of the U.S. Constitution because the Amendment. unlike allows no exemptions for law enforcement, military or government officials. The court found that providing a harsher penalty for a misdemeanor than for a felony violates the Equal Protection Clause. As a result of this decision, domestic abusers in law enforcement, the military or the government were once again allowed to possess a firearm. However the picture was confused again, in April, when the District of Columbia Court of Appeals, reheard the case, reversed the initial decision and found the Lautenberg Amendment survived the Equal Protection Challenge. This new decision once again took guns from domestic abusers, and also adds to the confusion about the Amendment’s constitutionality.

This Note addresses the background of the Lautenberg Amendment, as well as recent challenges to it and possible responses to these challenges. Part I comprises an introduction to the Lautenberg Amendment’s history and content, as well as those of its predecessors, the Gun Control Act of 1968 and the VAWA of 1994. Part III discusses why the Lautenberg Amendment, despite providing absolutely no exemptions, is indeed necessary to combat domestic violence. This includes an examination of state laws, including those of North Dakota, which are simply insufficient to handle the problem of domestic violence.

Part IV of this Note will provide an overview of the numerous claims of constitutional violations by the Lautenberg Amendment, and the courts’ rejection of those claims. This section will also discuss the recent holdings of the District of Columbia Circuit Court of Appeals in Fraternal Order of Police v. United States, both initially and on rehearing, that partially invalidated and then restored the Amendment. Finally, Part V will discuss both why it is essential that there be no exemptions from the Lautenberg Amendment and how this can be done without violating the United States Constitution.