Domestic Violence Offender Gun Ban - Court History

Court History

This law has been tested in federal court with the case United States v. Emerson (No. 99-10331) (5th Cir. 2001). See also U.S. v. Emerson, 231 Fed. Appx. 349 (5th Cir. 2007) (Same defendant seeking review of judgment). The case involved a challenge to the Constitutionality of 18 U.S.C. § 922(g)(8)(C)(ii), a federal statute that prohibited the transportation of firearms or ammunition in interstate commerce by persons subject to a court order that, by its explicit terms, prohibits the use of physical force against an intimate partner or child. Emerson does not address the portion of the Lautenberg Amendment involving conviction for misdemeanor domestic violence. It was initially overturned in 1999 for being unconstitutional, but that case was reversed upon appeal in 2001.

The case Gillespie v. City of Indianapolis, Indiana, 185 F.3d 693 (7th Cir. 1999) also challenged this law, and the case was rejected. The ex post facto aspects of the law were challenged with:

• United States v. Brady, 26 F.3d 282 (2nd Cir.), cert. denied, 115 S.Ct. 246 (1994) (denying ex post facto challenge to a 922(g)(1) conviction) and
• United States v. Waters, 23 F.3d 29 (2nd Cir. 1994) (ex post facto based challenge to a 922(g)(4) conviction).

Both of the challenges were denied.

Likewise this law was invoked in United States v. Jardee where it was ruled that the threat of being subjected to the gun ban did not turn a otherwise "petty" crime into a "serious" one requiring a jury trial.