Federal Firearms Ban for Misdemeanor Convictions

"Domestic violence" in this context has to do with the relationship between the defendant and victim, not the label on the misdemeanor.

By , Attorney

Federal law prohibits certain people from possessing, owning, receiving, or buying guns. The federal ban includes, among other prohibited persons, those convicted of "misdemeanor crimes of domestic violence" (MCDV).

This article reviews types of offenses that qualify as MCDV and answers frequently asked questions like: Do only laws labeled as "domestic violence" crimes trigger the federal gun ban or can an offense like battery or disorderly conduct be enough?

For other convictions that trigger the ban, check out Federal Firearms Ban for Domestic Violence Convictions.

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."

The U.S. Supreme Court has interpreted the meaning of MCDV broadly. Basically, 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).

Let's review the MCDV requirements in more detail.

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 can 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 your state law.

Generally speaking, the degree of physical force required is the same as what's required for a typical 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. 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, or
  • be "similarly situated" to a spouse, parent, or guardian of the victim (for example, a live-in girlfriend).

The prosecution must prove a qualifying domestic relationship between the defendant and the victim beyond a reasonable doubt. To decide if an offender is "similarly situated" to a spouse, parent, or guardian of the victim, courts look to factors like the length of a relationship, expectations of sexual intimacy and monogamy, shared household duties, and financial support. Courts and ATF regulations make clear that live-in partners are "similarly situated" to spouses, but more casual dating partners are probably not. Critics refer to this discrepancy as the "boyfriend loophole."

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—another reason why it's good to speak 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.

New York, for example, prohibits the purchase and possession of firearms or ammunition by anyone convicted of misdemeanor assault, battery, or stalking without regard to the victim's relationship with the offender. Other states have closed the so-called "boyfriend loophole" by expanding their firearm prohibition laws to include abusive dating partners. In these states, an offender might be able to lawfully purchase or possess a firearm under federal law but will be prohibited from purchasing or possessing a gun under state law.

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 for Safety Planning Around Guns and Firearms.

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