Firearms Eligibility: Domestic Violence and Dating Partners

Firearms Eligibility: Domestic Violence and Dating Partners

September 9, 2022
Firearms Eligibility: Domestic Violence and Dating Partners
On June 25, 2022, President Joe Biden signed into law the
H.R. 3756, a bill folded into P.L. 104-208; codified at 18
Bipartisan Safer Communities Act (BSCA; P.L. 117-159).
U.S.C. §§922(d)(9) and (g)(9)).
Section 12005 of this law amends the Gun Control Act of
1968 (GCA; 18 U.S.C. §§921-934) to expand the
Under a parallel subsection, it is also unlawful for anyone
misdemeanor crime of domestic violence (MCDV) firearm
under any circumstances to sell or otherwise dispose of a
prohibition to include dating partners, in addition to
firearm or ammunition to any prohibited persons, if the
spouses, former spouses, and cohabitants. The aim of this
transferor (seller) has reasonable cause to believe that the
provision is to reduce firearms-related intimate partner
transferee (buyer) is a person prohibited from receiving
violence (homicide and injury). Advocates for this
those items (18 U.S.C. §§922(d)(1) through (9)). Violations
provision see it as partially closing gaps in federal law in
are punishable by up to 10 years’ imprisonment. In 1986,
terms of firearms eligibility and persons with a history of
Congress amended the GCA felony prohibition, which
domestic violence, otherwise known as “the boyfriend
previously prohibited persons under felony indictment from
loophole.” Notably, the House-passed Violence Against
receiving or possessing firearms, to prohibit such persons
Women Act (VAWA) Reauthorization Act of 2021 (H.R.
from receiving, but not possessing, firearms or ammunition
1620) would have expanded the GCA’s domestic violence
(P.L. 99-308; 18 U.S.C. §922(n)). Violations are punishable
protective order (DVPO) firearm prohibition to include
by up to five years’ imprisonment.
dating partners and persons “similarly situated to spouses,”
but those specific provisions were not included when H.R.
“Current or Recent Former Dating
1620 was enacted as part of the Consolidated
Relationship”
Appropriations Act, 2022 (P.L. 117-103).
Section 12005 of the BSCA amends and expands the GCA
definition of “misdemeanor crime of domestic violence” to
Prohibited Persons Under the GCA
include any “person who has a current or recent former
Under the GCA, there are nine categories of persons
dating relationship with the victim” (18 U.S.C.
prohibited from receiving and possessing firearms or
§921(a)(33)(A)). Under this subparagraph, as amended (in
ammunition (18 U.S.C. §§922(g)(1) through (9)). They
italics), a qualifying offense must meet two conditions:
include (1) convicted felons, (2) fugitives from justice, (3)
unlawful drug users, (4) mentally incompetent individuals
(i) is a misdemeanor under Federal, State, Tribal,
deemed to be a danger to themselves or others, (5)
or local law; and
unlawfully present aliens, (6) persons discharged from the
(ii) has, as an element, the use or attempted use of
U.S. military under dishonorable conditions, (7) persons
physical force, or the threatened use of a deadly
who have renounced their U.S. citizenship, (8) persons
weapon, committed by a current or former spouse,
subject to domestic violence protection orders; and (9)
parent, or guardian of the victim, by a person with
domestic violence misdemeanants.
whom the victim shares a child in common, by a
As to DVPOs, in 1994, Congress adopted an amendment
person who is cohabiting with or has cohabited with
offered by Senator Paul Wellstone that prohibits individuals
the victim as a spouse, parent, or guardian, by a
who are subject to “protection orders” or “court-order
person similarly situated to a spouse, parent, or
restraints” related to harassing, stalking, or threatening an
guardian of the victim, or by a person who has a
intimate partner or child of such intimate partner from
current or recent former dating relationship with
receiving or possessing firearms or ammunition (S.Amdt.
the victim. [Emphasis added]
1179 to S. 1607, a bill folded into P.L. 103-322; codified at
Correspondingly, the BSCA amends the GCA at 18 U.S.C.
18 U.S.C. §§922(d)(8) and (g)(8)).
§921(a)(37), to define “dating relationship” as
As to MCDVs, in 1996, Congress adopted an amendment
(A) a relationship between individuals who have or
offered by Senator Frank Lautenberg to prohibit persons
have recently had a continuing serious relationship
convicted of a misdemeanor crime of domestic violence
of a romantic or intimate nature.
from receiving or possessing a firearm. Ineligible domestic
(B) Whether a relationship constitutes a dating
violence misdemeanants include any current or former
spouse, parent, or guardian of the victim, a person with
relationship under subparagraph (A) shall be
whom the victim shares a child in common, a person who is
determined based on consideration of—
cohabiting with or has cohabited with the victim as a
(i) the length of the relationship;
spouse, parent, or guardian, or a person similarly situated to
(ii) the nature of the relationship; and
a spouse, parent, or guardian of the victim (S.Amdt. 5241 to
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Firearms Eligibility: Domestic Violence and Dating Partners
(iii) the frequency and type of interaction
conviction, or (2) the completion of the person’s custodial
between the individuals involved in the
or supervisory sentence. Third, the BSCA amendment
relationship.
excludes from the prohibition anyone who has had their
In terms of what constitutes a “dating relationship,”
misdemeanor conviction expunged, set aside, pardoned, or
otherwise had their firearms rights restored, unless the
subparagraph (B) of this definition is similar to that of a
“dating partner” under 18 U.S.C. §2266(a)(10).
terms of such relief expressly provide otherwise. Fourth, the
BSCA requires that records accessible to the National
Qualifying DVPOs and MCDVs
Instant Criminal Background Checks System (NICS) be
updated to reflect any firearms eligibility restoration for any
Under current law, a qualifying DVPO includes the
following elements. The defendant/respondent must receive
dating partner domestic violence misdemeanant. In these
respects, Section 12005 stands in contrast to the Lautenberg
actual notice and opportunity to participate in a hearing
amendment provision, which was retrospective, was and
before a judge, magistrate, or other judicial official. After
such hearing, a DVPO may be issued by a criminal or civil
remains not time-limited, and does not speak to firearms
eligibility restoration to the extent that such relief might be
court, such as a divorce court, family court, magistrate, or
available under state, tribal, or local law.
general jurisdiction court. A qualifying court order must
also restrain the subject from harassing, stalking, or
On the other hand, the BSCA amendment precludes
threatening an intimate partner or child of that intimate
firearms eligibility restoration for offenders who have
partner, or engaging in conduct that would place either of
them in reasonable fear of bodily injury. There must also be
subsequently been convicted under any federal, state, tribal,
or local law of an offense related to:
a finding that the subject is a credible threat to the physical
safety of the intimate partner or child, or explicitly prohibit

the use of physical force. An intimate partner includes
the use or attempted use of physical force,
 the threatened use of a deadly weapon, or
 a spouse or former spouse of the subject;
 any other disqualifying offense under the GCA.
 a person who cohabitates or cohabitated with the
The BSCA amendment also includes a provision that states
subject, who resides or resided in a sexual/romantic
that its provisions do not extend the possibility of firearms
relationship with the subject; or
eligibility restoration to any person who is or would be
 a person with whom the subject has or had a child in
prohibited under prior law (spouses, former spouses, and
common (regardless of whether they ever married or
cohabitants).
cohabitated).
BSCA and VAWA Reauthorization
A qualifying MCDV must include the following elements.
Section 12005 of the BSCA amends and expands the GCA
Such offense is a misdemeanor crime under federal, state,
MCDV firearm prohibition to include dating partners, but it
or tribal law and involves the use or attempted use of
physical force, or the threatened use of a deadly weapon. At
does not similarly expand the GCA DVPO firearm
the time of the offense, the offender must have been:
prohibition to include current and former dating partners.
As previously noted, the House-passed VAWA
 A current or former spouse, parent, or guardian of the
Reauthorization Act (H.R. 1620) included domestic
violence firearms eligibility-related provisions that would
victim;

have expanded the DVPO prohibition under 18 U.S.C.
A person with whom the victim shared a child in
§§922(d)(8) and (g)(8) to include
common;
 A person who was cohabitating with or had cohabitated
 dating partners and former dating partners, and persons
with the victim as a spouse, parent, or guardian; or
“similarly situated to a spouse”;
 A person who was or had been similarly situated to a
 restraining orders under state, tribal, or local law that are
spouse, parent, or guardian of the victim.
issued after an “ex parte” hearing, that is, a court
As discussed above, the BSCA adds a fifth category: “a
motion, hearing, or order granted on the request of and
person who has a current or recent former dating
for the benefit of one party only without the respondent
relationship with the victim.”
or defendant being present; and
 restraining orders related to witness intimidation.
Prospective Prohibition and Eligibility
Restoration
H.R. 1620 would have expanded the MCDV prohibitions
under 18 U.S.C. §§922(d)(9) and (g)(9) to include dating
The BSCA sets several limitations on the MCDV dating
partners, and also would have made any person convicted
partner prohibition. First, it is prospective and only affects
of a “misdemeanor crime of stalking” a tenth category of
MCDVs going forward. Misdemeanor convictions prior to
prohibited persons under the GCA. While the VAWA
enactment will not be considered prohibitive if based on the
reauthorization was enacted as part of the Consolidated
newly-added dating partner prohibition. Second, the BSCA
Appropriations Act, 2022 (P.L. 117-103), it did not include
dating partner prohibition is time-limited for offenders who
the House-passed MCDV, DVPO, or stalking prohibitions.
do not have more than one MCDV involving a dating
See CRS In Focus IF11784, Firearms Eligibility: Stalking-
relationship and are not otherwise prohibited under the
and Domestic Violence-Related Provisions in H.R. 1620.
GCA or subsequently convicted of a violent misdemeanor.
Firearms eligibility for those offenders is to be restored five
years from whichever date comes later, (1) the judgment of
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Firearms Eligibility: Domestic Violence and Dating Partners

William J. Krouse, Specialist in Domestic Security and
Crime Policy
IF12210

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