In 1996, the Lautenberg Amendment was added to the Gun Control Act of 1968 and expanded the scope of persons precluded from owning or possessing firearms. In addition to felons and persons known to be addicted to controlled substances, the list now includes individuals who were convicted of a misdemeanor crime of domestic violence(or “MCDV”). 18 CFR § 922(g)(9). An MCDV is defined as a crime which has an element of physical force or threatened use of physical force or use of a deadly weapon against specific individuals including former and current spouses. 18 CFR § 922(33)(A)(i-ii). An individual is not convicted of an MCDV if they were not represented by counsel or denied the right to a jury trial(or did not knowingly and intelligently waive those rights). 18 CFR § 922(33)(B)(i)(I-II). Additionally, thereis no MCDV conviction if it has been “…expunged orsetaside, or is an offense for which the person has been pardoned or has had civil rights restored (ifthelawof theapplicable jurisdiction provides fortheloss ofcivil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.” 18 CFR§922(33)(B)(ii). Unfortunately, the 9th Circuit in Chovan held that restoring the right to own or possess a gun is not a “restoration of civil rights” because it does not pertain to the “core” rights such as the right to vote. United States v. Chovan, 735 F.3d 1127, 1131-32 (2013). But See, United States v. Flower,838F. Supp544(1993), certiorari denied, 115 S.Ct. 939(holding that the defendant had the burden of bringing forth evidence that his civil rights had been restored following Utah predicate conviction). In the recent case of Voisine v. United States, 136 S. Ct. 2272(2016), the Supreme Court upheld the lesser “reckless” mens rea standard for the MCDV and affirmed Lautenberg’s lifetime ban. The Supreme Court in Beecham also held that only the federal government could restore a loss of civil rights resulting from federal law. Beecham v. U.S., 511 U.S. 368, 372 (1994). The Justice Department has noted, however, that the restoration of civil rights must be carefully researched for each defendant. 1 And while federal law technically allows individuals to apply to the Attorney General or ATF for relief, no individual has ever done so because since October 1992 Congress has prohibited any funds from being used to investigate oract uponapplicationsforrelief. 27CFR§478.144.2 The Lautenberg Amendment has been challenged numerous times without much success because preventing persons convicted of MCDVs from possessing firearms is substantially related to the important government interest of preventing violence and crime against family members and significant others. See, Chovan, supra(rejecting the claim that the Lautenberg amendment violates Second Amendment right to bear arms);See Also, United States v.Castleman,134S.Ct.1405 (2014).
California law makes it a crime for persons convicted of certain misdemeanor offenses(including PC § 273.5(a)) from owning or possessing firearms within ten years of conviction. Cal. Pen. Code § 29805. Only law enforcement and other persons who depend on carrying a firearm for their livelihood are exempted after first petitioning the court for relief. Cal. Pen. Code § 29855(a). PC § 273.5(a) is a “wobbler” offense meaning it can be charged as a felony or misdemeanor. Cal. Pen. Code§17(b). Pardons are available to individuals who have been discharged from probation or parole for at least ten years. However, a grant of a Pardon is rare even under our current governor Jerry Brown who has pardoned more individuals than previous governors (811 between 2011-2016 compared to just 28 between 1991-2010).3 However, a reference manual published on the California Department of Corrections and Rehabilitation states that a pardon can restore gun rights only after federal approval.
statute only says “….may provide…” Cal. Pen. Code § 4854.An individual may also argue that they fall under one of the narrowly drawn exceptionsdescribedin18§CFR§922(33)(B)orthatPC§273.5(a)isnotanMCDV. Thesearguments are addressed inthe“Other Arguments”section belowand arelikely unsuccessful since he had a jury trial and it appears that he was represented by counsel. The last option is to “wait and see” since the Lautenberg a highly litigated issue. The High Court(as well as other federal courts) are more conservative (read: pro-gun rights) now; that said, the government interest in preventing the escalation of domesticviolenceissocompellingthatitisunlikelythatLautenberg willnotmeetthe intermediate scrutiny standard that has been applied to it. The fact that Congress refuses to fund the ATF relief option is further evidence of just how solidified this policyis.
The best argument(although not likely a winning one) is that you fall within one of the exceptions to MCDV convictions under 18 § CFR 922(33). Specifically, it could be argued that the individual has had his “civil rights restored” because PC§ 29805 expressly forbid himfrom owning orpossessing a firearm within ten years of his PC § 273.5 conviction. Since ten years have passed, it is no longer a crime under state law for him to own or possess a firearm, so he has been given back something that was previously taken away. See, Logan v. U.S., 552 U.S. 23, 23-24(2007)(“The ordinary meaning of the word “restored”—giving back something that has been taken away—does not include retention of something never lost.) However, since the Chovan court explicitly stated that gun rights are not a core civil right like voting, this argument is likely to fail(Chovan would have to be overturned by Supreme Court). Expungement is also of little use because California law explicitlyprohibitsexpungementsfromrestoringgunrights.Cal.Pen.Code§1203.4.
Any argument that a PC § 273.5(a) conviction is not an MCDV is a stretch because it specifically lists a spouse or other cohabitant as persons covered by the statute. Cal. Pen. Code § 273(b). The “willful infliction of corporal injury” language in PC § 273.5(a) also makes it difficult to argue that there was not the required “force” involved (although it may warrant to reviewing the police report to understand the specific circumstances of the offense). Cal. Pen. Code § 273(a). Moreover, the Voisine recently affirmed “reckless” as sufficient (thoughyoumaybeabletosplithairsandsaythat“willful”islesserthan“reckless”).
The last option is the “gun show loophole” which Senator Lautenberg has spoken out against and which Politifact has rated as “true” in 2012. However, because this is a gray area of the law it would likely be unwise to explicitly advise individuals to take advantage of it.