It’s a federal crime for someone convicted of a misdemeanor crime of domestic violence (MCDV) to possess a firearm or ammunition. What counts as an MCDV?
Updated August 17, 2023
Federal law prohibits certain people from possessing, owning, receiving, or buying guns and ammunition. The federal ban includes, among other prohibited persons, those convicted of "misdemeanor crimes of domestic violence" (MCDV).
This article reviews the types of offenses that qualify as MCDV and answers common questions like: Does a have to be labeled as "domestic violence" to trigger the federal gun ban or can an offense like battery or disorderly conduct be enough?
What Is a Misdemeanor Crime of Domestic Violence?
Nearly all felony convictions (crimes punishable by more than a year in jail or prison) trigger the federal firearms ban. On the other hand, the federal firearm ban only applies to those misdemeanor convictions that qualify as "misdemeanor crimes of domestic violence."
Lawmakers expanded the list of "prohibited persons" to include those convicted of an MCDV in response to the number of domestic abuse offenders who were pleading felony charges down to misdemeanors to escape felon-in-possession restrictions. This provision is commonly referred to as the "Lautenberg Amendment."
The U.S. Supreme Court has interpreted the meaning of MCDV broadly. All misdemeanor crimes that prohibit the use or attempted use of physical force or the threatened use of a deadly weapon qualify as MCDV when the offense involves a defendant and victim in a current or former "domestic relationship," as defined under federal law. (18 U.S.C. §921(a)(33)(2023).)
What Qualifies as Use of Force?
To be considered an MCDV, the offense must require the prosecution to prove:
- the use of physical force
- the attempted use of physical force, or
- the threatened use of a deadly weapon.
Examples of such crimes include assault, battery, child abuse, criminal threats, reckless discharge of a firearm, reckless endangerment, sexual assault, and strangulation. Whether the misdemeanor qualifies will depend on the elements of the crime.
The degree of physical force required is typically the same as what's required for a battery conviction—offensive touching. The offender doesn't have to cause bodily harm or even pain: Slight touching (scratching, slapping, grabbing) done in a rude or angry way can qualify as an MCDV. In fact, no touching at all is required. Offenders who unsuccessfully attempt to use physical force (say a wife who swings her fist and barely misses her husband's face) or threaten the use of a deadly weapon (say a man who flashes a gun at his live-in girlfriend and says he is going to shoot her) might also be guilty of an MCDV. Reckless conduct can also count (say throwing a plate at a wall where glass shards could easily hit and injure an intimate partner). (Voisine v. United States, 136 S. Ct. 2272 (2016); United States v. Castleman, 572 U.S. 157 (2014).)
What Qualifies as a Domestic Relationship?
Federal law narrows MCDV convictions to only those involving certain domestic relationships. According to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), the offender must:
- be a current or former spouse, parent, or guardian of the victim
- share a child in common with the victim
- be a current or former cohabitant with the victim as a spouse, parent, or guardian
- be "similarly situated" to a spouse, parent, or guardian of the victim (for example, a live-in girlfriend), or
- be a person who has a current or recent former dating relationship with the victim.
The prosecution must prove a qualifying domestic relationship between the defendant and the victim beyond a reasonable doubt. Courts often look to factors like the length of a relationship, expectations of sexual intimacy and monogamy, shared household duties, and financial support.
For many years, courts and ATF regulations made clear that live-in partners are "similarly situated" to spouses, but more casual dating partners are probably not. Critics referred to this discrepancy as the "boyfriend loophole." In 2022, a new federal gun safety law took effect that, among other things, closed the so-called "boyfriend loophole" by expanding the existing domestic violence restrictions to cover dating relationships.
Do Only Laws Labeled as "Domestic Violence" Crimes Trigger the Federal Gun Ban?
Many people wonder whether a statute has to specifically label an offense as "domestic violence" for the federal firearm ban to apply. It does not. In 2009, the U.S. Supreme Court ruled that generic misdemeanors (like battery or assault) can qualify as MCDV if the government can prove the offender and victim had a domestic relationship as defined by federal law. (United States v. Hayes, 555 U.S. 415 (2009).)
For example, say five years ago, a judge convicted Randy of misdemeanor battery for hitting his wife, Katie. The prosecution wasn't required to prove that Randy and Katie were married to convict him of battery, but Katie testified about their relationship during his trial. A few years later, Katie called the police to report that Randy hit her again. During their investigation, the police searched the house and found a rifle in Randy's closet. Federal prosecutors can charge Randy with unlawful possession of a firearm based on his prior misdemeanor battery conviction.
To convict Randy on federal charges, the prosecution must prove the prior battery was an MCDV involving the use of force and a protected domestic relationship. Here, Randy was convicted of battery for hitting Katie, which qualifies as the use of force. Because their relationship wasn't an element of the crime, the prosecution must prove beyond a reasonable doubt that Randy was married to Katie at the time of the battery. The easiest way to prove the relationship would be to call Katie to as a witness.
In this case, Randy's misdemeanor battery conviction against his wife will qualify as an MCDV, making him subject to the federal gun ban. In contrast, if Randy had been convicted of misdemeanor battery against a random person in a bar, the federal gun ban wouldn't apply.
Can a Person Have Their Gun Rights Restored?
Under federal law, defendants convicted of misdemeanor domestic violence typically face a lifetime ban on owning or possessing firearms. A person's gun rights can be restored after a domestic violence conviction in some jurisdictions if the conviction is expunged or set aside or the offender has been pardoned or had civil rights restored. But states can limit the restoration of gun rights—talk to a lawyer before making any plea decisions that could impact your right to possess firearms.
What About State Gun Laws?
Federal law establishes a baseline national standard concerning who is eligible to possess and purchase firearms. But, federal law is merely a floor, and states are free to supplement with additional restrictions so long as they don't conflict with federal law.
Some states, for example, prohibit people with violent misdemeanors from buying firearms, regardless of the victim's relationship with the offender. Other states closed the so-called "dating partner loophole" years before the federal government acted.
Talk to a Lawyer
If you've been accused of a domestic violence crime, talk to an experienced criminal defense lawyer. A lawyer can represent you in the case, answer questions about your situation, and advise you on how federal and state laws on gun ownership and possession apply to your case.
If you are a victim of domestic violence, contact the National Domestic Violence Hotline at 1-800-799-SAFE (7233) and review Safety Planning Around Guns and Firearms.
