Lautenberg Amendment


 

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Index

Introduction and statute text

Lautenberg Amendment — 18 U.S.C. § 922(g)

Impact on the military — the Army's position

Protection orders

What has the Lautenberg Amendment done to stop domestic violence and abuse?

But did domestic violence really increase?


 

Introduction and statute text

Anyone convicted of a felony crime of violence is forbidden to be in possession of a firearm or ammunition. But the Gun Control Act of 1968 was amended in 1996 by Senator Frank Lautenberg by adding a rider to Public Law 104-208 —Magnuson-Stevens Fishery Conservation and Management Act as part of the Omnibus Consolidated Appropriations Act of 1997 enacted by the 104 th United States Congress in 1996. The act is often referred to as "the Lautenberg Amendment" after its sponsor, Senator Frank Lautenberg (Democrat-New Jersey) and adds draconian provisions for misdemeanor crimes as well as felonies.

The Lautenberg Amendment, 18 U.S.C. § 922(g)(8) and (9), also punishes other classes of people, e.g. mental defectives (and who determines that?), drug users (including marijuana), veterans who have been dishonorably discharged even when the discharge was the result of their combat stress or wounds, and so on. The act also carries a mandatory sentence of 5 to 10 years in federal prison, as if we don't have enough Americans in prison.

Just one more sleazy example of how Congress is legislating the destruction of America.

Lautenberg Amendment — 18 U.S.C. § 922(g)

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(g) It shall be unlawful for any person—

(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;

(2) who is a fugitive from justice;

(3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));

(4) who has been adjudicated as a mental defective or who has been committed to a mental institution;

(5) who, being an alien—

(A) is illegally or unlawfully in the United States; or

(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(26)));

(6) who has been discharged from the Armed Forces under dishonorable conditions;

(7) who, having been a citizen of the United States, has renounced his citizenship;

(8) who is subject to a court order that—

(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;

(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and

(C)

(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or

(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or

(9) who has been convicted in any court of a misdemeanor crime of domestic violence,

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

As of 2009 a number of states, notably Montana and Arkansas are protesting 18 U.S.C. § 922, and similar federal laws by passing legislation at the state level that exempts any guns or ammunition produced and sold within the state's borders and thus exempt from the Commerce Clause. Whether those acts will stand under the Tenth Amendment has not yet been tested but public anger at these draconian provisions is certainly growing.


 

Impact on the military — the Army's position

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ArmyStudyGuide.com, October 6, 2005

The Lautenberg Amendment to the Gun Control Act of 1968, effective 30 September 1996, makes it a felony for those convicted of misdemeanor crimes of domestic violence to ship, transport, possess, or receive firearms or ammunition. The Amendment also makes it a felony to transfer a firearm or ammunition to an individual known, or reasonably believed, to have such a conviction. Soldiers are not exempt from the Lautenberg Amendment.

Summary court-martial convictions, nonjudicial punishment under Article 15, UCMJ, and deferred prosecutions (or similar alternative dispositions) in civilian court do not constitute qualifying convictions within the meaning of the Lautenberg Amendment. The prohibitions do not preclude a soldier from operating major weapons systems or crew served weapons such as tanks, missiles, and aircraft. The Lautenberg Amendment applies to soldiers with privately owned firearms and ammunition stored on or off post.

Army policy is that all soldiers known to have, or soldiers whom commanders have reasonable cause to believe have, a conviction of a misdemeanor crime of domestic are non-deployable for missions that require possession of firearms or ammunition. Soldiers affected by the Lautenberg Amendment are not eligible for overseas assignment. However, soldiers who are based outside the continental United States (OCONUS) will continue to comply with their assignment instructions.

Soldiers with qualifying convictions may not be assigned or attached to tables of organization and equipment (TOE) or modified TOE (MTOE) units. Commanders will not appoint such soldiers to leadership positions that would give them access to firearms and ammunition. Soldiers with qualifying convictions may not attend any service school where instruction with individual weapons or ammunition is part of the curriculum.

Soldiers whom commanders know, or have reasonable cause to believe have, a qualifying conviction may extend if otherwise qualified, but are limited to a one year extension. Affected soldiers may not reenlist and are not eligible for the indefinite reenlistment program. Soldiers barred from reenlistment based on a Lautenberg qualifying conviction occurring after 30 September 1996 may not extend their enlistment. However, such soldiers must be given a reasonable time to seek removal of the conviction or a pardon.

Officers are subject to the provisions of the Lautenberg Amendment like any other soldier. The effects of are somewhat different if an officer has a qualifying conviction. Officers may request release from active duty or submit an unqualified resignation under AR 600-8-24, Officer Transfers and Discharges.


 

Protection orders

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However, the Army's position ignores the provisions of 18 U.S.C. §922(g)(8) that states:

(g) It shall be unlawful for any person—

(8) who is subject to a court order that—

(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;

(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and

(C)

(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or

(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury;

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

In many states a restraining order of the type referenced under 18 U.S.C. §922(g)(8) is for a limited period of time, typically one or two years, and automatically expires after that.

However, that is not true of protection (restraining) orders issued in Colorado under Colorado Revised Statutes (C.R.S.) § 13-14-101 et seq. If after a hearing within 14 days from the issuance of a temporary order, the protection order is made permanent it is in place for life. And respondents/defendants of such orders are barred by law from asking the court for any modification or removal of the order for a minimum of four years after the order is made permanent.

Obviously that rules out continued military service.

 

What has the Lautenberg Amendment done to stop domestic violence and abuse?

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Current societal concern for domestic violence dates from 1971 when Erin Pizzey opened the first refuge (shelter in the U.S.) for battered women in Chiswick, London, England.

To measure criminal acts the National Crime Victimization Survey (NCVS) has been collecting data on personal and household victimization of intimate partners consistently since 1973 in an ongoing survey of a nationally representative sample of residential addresses.

Twice each year data are obtained from a sample of roughly 49,000 households encompassing about 100,000 individuals, or roughly 2 individuals per household (ratio 100/49 = 2.04), on the frequency, characteristics, and consequences of criminal victimization in the United States. As a result the NCVS is a primary source of information on characteristics of all types of criminal victimization, and on the number and types of crimes not reported to law enforcement authorities, as well as those that are in the United States.

Gaquin (1977-78) examined the first available NCVS data on the crime of domestic violence after 1971. For the years 1973-1975 he found an extremely low rate of intimate partner violence of 2.2 incidents per 1,000 households, or 0.22% and that rate can serve as a baseline for domestic violence incidents in the United States. The Census Bureau uses an estimate of 2.53 residents per household and NCVS roughly 2 from above. So 1,000 households represents ~2,000 to 2,530 residents. Thus, the early NCVS data suggested ~9 to 11 criminal domestic violence incidents per 10,000 residents a year.

After passage of the 1994 domestic violence laws in Colorado and the federal Lautenberg Amendment in 1996, the number of per capita domestic violence and abuse court cases in Colorado increased almost linearly from 62 per 10,000 residents (0.62%) in 1998 and peaked in 2003 at 78 per 10,000 (0.78%). The per capita number of court cases then declined and has leveled off since then to 72 per 10,000 residents (0.72%) in 2008. Note that this is still an eightfold increase from the early NCVS rate.

Two things are evident from the passage of draconian domestic violence and abuse laws: (1) after these draconian laws were passed the per capita number of domestic violence and abuse court cases increased by nearly an order of magnitude, and (2) draconian laws have done nothing to solve the problem as the population-normalized yearly number of cases in Colorado has remained constant since 2004 after initially causing a rapid increase in court cases.

But did domestic violence really increase?

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In contrast with the extraordinary number of domestic violence court cases in Colorado, in April 2006 the Bureau of Justice Statistics published NCVS data for 2004 from a sample of 84,360 households and 149,000 individuals (ratio 1.78 citizens per household) age 12 or older that were interviewed.

The 2004 NCVS survey found that intimate partner violence, defined as violence committed by a current or former spouse, boyfriend, or girlfriend, declined between 1994 and 2003. For 2003 and 2004 four (4) in every 1,000 households (0.4%), or ~16 to 23 per 10,000 residents, were affected by intimate partner violence.

While the NCVS data indicate a decline in measurable intimate partner violence between 1994 and 2003 the court data from Colorado continues to show an increase in cases. In 1998, the earliest data available, there were 35 DV court cases per 10,000 residents. By 2003 that had increased to 40 DV cases per 10,000. As of 2008, the last year for which data are currently available, there were 41 DV court cases per 10,000 residents. It seems inescapable to conclude that half of these cases are either false allegations or gross exaggerations of a situation for personal gain.

It is reasonable to compare the 0.4% of households where domestic violence is estimated to have occurred with the 2.0% of households where a resident is estimated to have suffered from simple assault by a stranger, and approximately 0.7% of households where aggravated assault occurred exclusive of domestic violence. Without making any judgements regarding the societal interest in the topic of domestic violence, one would be forced to conclude that, according to victims surveyed by the NCVS, the crime of domestic violence is a small mark on the tableau of American criminal justice.

Yet since the year 2000 domestic violence cases have comprised over 20% of all misdemeanor court cases in Colorado, the most common crime on the court dockets.

The measure of effectiveness of any criminal law is whether the crime it is intended to control diminished after the law was passed. The best data available suggests quite the opposite has happened after the passage of draconian laws against domestic violence in 1994-1996.

In effect the Lautenberg Amendment increased the number of court cases for domestic violence.

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| EJF Home | Find Help | Help the EJF | Comments? | Get EJF newsletter | Newsletters |

| Domestic Violence Book | DV Site Map | Data tables | DV bibliography | DV index |

 

| Chapter 3 — The Impact Of Domestic Violence Laws On Veterans And National Security |

| Next — Army 'Ahead Of Society' In Addressing Abuse by Connie Smalls |

| Back — Strategic Analysis Of The Domestic Violence Industry by Charles Corry, Ph.D. |


 

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Added November 26, 2009

Last modified 3/26/14