Firearms Prohibitions and Domestic Violence Convictions: The Lautenberg Amendment

Firearms Prohibitions and Domestic Violence Convictions: The Lautenberg Amendment

Order Code RL31143
CRS Report for Congress
Received through the CRS Web
Firearms Prohibitions and
Domestic Violence Convictions:
The Lautenberg Amendment
October 1, 2001
name redacted
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

Firearms Prohibitions and Domestic Violence
Convictions: The Lautenberg Amendment
Summary
The Lautenberg Amendment to the Gun Control Act of 1968 establishes a
comprehensive regulatory scheme designed to prevent the use of firearms in domestic
violence offenses. To this end, the Amendment prohibits the possession of firearms
by persons convicted of a misdemeanor crime of domestic violence, and, relatedly,
prohibits the knowing sale or disposition of any firearm or ammunition to a domestic
violence misdemeanant. Furthermore, the Lautenberg Amendment alters the
traditional public interest exception to the possession of firearms under the Gun
Control Act by making the prohibition applicable to any individual convicted of a
domestic violence misdemeanor, including federal, state, and local law enforcement
officers.
The provisions of the Lautenberg Amendment have been challenged on three
primary grounds. First, opponents of the law maintain that it violates the Commerce
Clause by classifying as a federal offense activity that does not have an effect on
interstate commerce as required by the Supreme Court’s decision in United States v.
Lopez. It has also been argued that the law violates the Equal Protection Clause by
punishing domestic violence misdemeanors more harshly than other misdemeanor
offenses, by punishing misdemeanor but not felony offenses, and by excluding law
enforcement officers convicted of misdemeanor domestic violence offenses from the
public interest exception of 18 U.S.C. §925(a)(1). Furthermore, the law has been
attacked as a violation of the Ex Post Facto Clause on the basis that it prohibits the
possession of a firearm by a domestic violence misdemeanant even if the predicate
offense occurred prior to its enactment.
Reviewing courts have rejected these challenges to the Lautenberg Amendment,
determining that its provisions fall within acceptable constitutional parameters.
Regarding the Commerce Clause, courts have held that the law contains an express
jurisdictional element requiring a finding that the firearm in question was possessed
in or affecting commerce, or was received after having been shipped or transported
in interstate or foreign commerce, obviating the concerns at issue in United States v.
Lopez. Equal Protection Clause challenges have been rejected upon the determination
that Congress rationally concluded that misdemeanor domestic violence offenders
should not possess firearms. Finally, the courts have held that the law does not violate
the Ex Post Facto Clause in that it prohibits post-enactment possession and does not
criminalize conduct occurring before its enactment.

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
The Gun Control Act of 1968 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
The Lautenberg Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A. Elements of the Offense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
B. Statutory Defenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Constitutional Challenges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
A. Commerce Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
B. Equal Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
C. Ex Post Facto Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Firearms Prohibitions and Domestic
Violence Convictions: The Lautenberg
Amendment
Introduction
This report provides an overview of the provisions of the Lautenberg
Amendment to the Gun Control Act of 1968, which establishes a scheme prohibiting
the possession of firearms by individuals who have been convicted of a misdemeanor
crime of domestic violence. In addition to outlining the elements of the prohibition
on firearm possession and statutory defenses available to such a charge, this report
discusses the disposition of legal challenges to the constitutional validity of the
Amendment’s proscriptions.
The Gun Control Act of 1968
The Gun Control Act of 1968 (GCA) established a comprehensive scheme
regulating the manufacture, sale, transfer, and possession of firearms and
ammunition.1 Section 922(g) of the GCA delineates nine classes of individuals who
are prohibited from shipping, transporting, possessing, or receiving firearms or
ammunition in interstate commerce. The individuals targeted by this provision include:
(1) persons convicted of a crime punishable by a term of imprisonment exceeding one
year; (2) fugitives from justice; (3) individuals who are unlawful users or addicts of
any controlled substance; (4) persons legally determined to be mentally defective, or
who have been committed to a mental institution; (5) aliens illegally or unlawfully in
the United States, as well as those who have been admitted pursuant to a
nonimmigrant visa; (6) individuals who have been discharged dishonorably from the
Armed Forces; (7) persons who have renounced United States citizenship; (8)
individuals subject to a pertinent court order; and, finally, (9) persons who have been
convicted of a misdemeanor domestic violence offense.2
The GCA, as enacted and amended, contains a public interest exception for all
but one of the aforementioned disqualification categories. Specifically, except for 18
U.S.C. §922(g)(9), 18 U.S.C. §925(a)(1) exempts from prohibition “any firearm or
ammunition imported for, sold or shipped to, or issued for the use of, the United
States or any department or agency thereof or any State or any department, agency,
or political subdivision thereof.” The practical effect of this exception is to allow for
the possession of firearms in an official capacity, irrespective of criminal record. As
is discussed in greater detail below, this provision provided a blanket exception to the
1See 18 U.S.C. §922.
218 U.S.C. §922(g)(1)-(9).

CRS-2
disqualification provisions of the GCA prior to enactment of the Lautenberg
Amendment.
The Lautenberg Amendment
In September, 1996, as part of the Omnibus Consolidated Appropriations Act
of 1997, Congress amended the criminal provisions of the GCA, adding a ninth
disqualification category. Commonly referred to as the “Lautenberg Amendment,” this
provision makes it unlawful for “any person...who has been convicted of a
misdemeanor crime of domestic violence” to ship, transport, possess, or receive
firearms or ammunition in or affecting commerce.3 Relatedly, the Lautenberg
Amendment prohibits the knowing sale or other disposition of any firearm or
ammunition to a domestic violence misdemeanant.4 Furthermore, the Lautenberg
Amendment alters the traditional public interest exception to the firearms
disqualification provisions of the GCA, in that it applies to any individual who has
been convicted of a domestic violence misdemeanor, including federal, state, and local
law enforcement officers.5

A. Elements of the Offense.
Pursuant to the amendment, a misdemeanor conviction triggers the firearm
possession prohibition only if the underlying offense includes an element requiring
proof of the use or attempted use of physical force, or the threatened use of a deadly
weapon against the victim.6 The offender must be a current or former spouse, parent,
or guardian of the victim; a person with whom the victim shares a child; a person with
whom the victim has cohabitated or is cohabitating as a spouse, parent, or guardian;
or a person “similarly situated” to a spouse, parent, or guardian of the victim.7 This
provision appears to cover an exhaustive range of domestic relationships, except that
the text prevents children from being classified as offenders in the event that they
commit a misdemeanor offense against a parent or guardian. The Bureau of Alcohol,
Tobacco and Firearms (BATF) has clarified the language of the statute, stating that
it covers common law marriages, irrespective of whether the relationship is
recognized under state law, and situations where two persons share a domicile in an
318 U.S.C. §922(g)(9).
418 U.S.C. §922(d)(9).
518 U.S.C. §925(a)(1).
618 U.S.C. §921(a)(33)(A)(i).
718 U.S.C. §921(a)(33)(A)(ii). In full, the definition is as follows: “the term ‘misdemeanor
crime of domestic violence’ means an offense that: (i) is a misdemeanor under federal or state
law; and (ii) has, as an element, the use or attempted use of physical force, or the threatened
use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the
victim, by a person with whom the victim shares a child in common, by a person who is
cohabitating with or has cohabitated with the victim as a spouse, parent, or guardian, or by
a person similarly situated to a spouse, parent, or guardian of the victim.”

CRS-3
intimate relationship.8 Specifically, the ATF has stated that the “similarly situated to
a spouse” language does not require the establishment of a common law marriage
relationship. Rather, such individuals must simply be involved “in more than a ‘dating’
relationship.”9 As with the other classifications of domestic relationships, individuals
in a relationship “similarly situated to a spouse” fall under the purview of the
prohibition if they were “domiciled in an intimate relationship with the victim of the
offense either at the time of, or at any time prior to, the offense.”10
It is important to note that a predicate offense is not required to contain an
explicit element referring to domestic violence. According to the BATF, the term
“misdemeanor crime of domestic violence” refers to “all misdemeanors that involve
the use or attempted use of physical force (e.g., simple assault, assault and battery)
if the offense is committed by one of the defined parties. This is true whether or not
the State statute or local ordinance specifically defines the offense as a domestic
violence misdemeanor.”11 A similar conclusion was reached by the Court of Appeals
for the Eight Circuit, which held that “while §921(a)(33) requires proof of a domestic
relationship, it requires the predicate misdemeanor to have only one element: the use
or attempted use of physical force (or its alternative, the threatened use of a deadly
weapon...).”12
B. Statutory Defenses.
18 U.S.C. §921(a)(33) establishes two statutory defenses to the application of
the possession prohibition, extending procedural protections that are generally only
available to individuals charged with felonies to those charged with misdemeanor
crimes of domestic violence. Specifically, §921(a)(33)(B) provides that the underlying
misdemeanor offense may not be used as a predicate to a violation of §922(g)(9)
unless: (1) the individual in question was represented by counsel in the case, or
knowingly and intelligently waived the right to counsel, and, (2) in the instance that
the individual was entitled to a trial by jury, the case was indeed tried by jury, or the
individual in question made a knowing and intelligent waiver of the right.
Given that few misdemeanor offenses imbue defendants with the right to a trial
by jury, the second of the aforementioned statutory defenses has had no discernible
impact on court decisions regarding convictions pursuant to §922(g)(9). It does
827 C.F.R. §178.11; See also, Bureau of Alcohol, Tobacco and Firearms, “Federal Firearms
Regulations Reference Guide,” ATF P 5300.4, p. 152 (2000).
9Id.
10Id.
11Bureau of Alcohol, Tobacco and Firearms, Open Letter to All State and Local Law
Enforcement Officials, http://www.atf.treas.gov/firearms/domestic/opltrleo.htm. See also,
United States v. Lewitzke, 176 F.3d 1022, 1025 (7th Cir. 1999).
12United States v. Smith, 171 F.3d 617, 620 (8th Cir. 1999); See also, United States v. White,
258 F.3d 374 (5th Cir. 2001) (holding that convictions under Texas statutes criminalizing
reckless conduct and terroristic threats were not convictions of a "crime of domestic violence"
as they did not contain the aforementioned required elements, precluding their use as predicate
convictions for a violation of §922(g)(9)).

CRS-4
appear, however, that the requirement concerning legal representation could serve to
limit the application of §922(g)(9). Specifically, given that there is no constitutional
right to counsel in misdemeanor cases, it has been surmised that many domestic
violence misdemeanants appeared without representation and likely did not make a
knowing and intelligent waiver of that right, thereby significantly limiting the universe
of individuals against whom the possession ban may be enforced.13 The Court of
Appeals for the Ninth Circuit addressed just such a situation in United States v. Akins,
holding that the evidence was insufficient to establish that the defendant had validly
waived his right to counsel prior to pleading guilty to an underlying state
misdemeanor domestic violence charge, as required to establish a violation of
§922(g).14
At issue in Akins was the defendant’s contention that the indictment charging
him with violating §922(g)(9) was faulty in that it failed to allege an underlying
misdemeanor crime of domestic violence as defined in §921(a)(33), given that he had
not knowingly and intelligently waived his right to counsel prior to a 1989
misdemeanor conviction. Addressing this argument, the court explained that in order
to make a knowing and intelligent waiver of the right to counsel, a “defendant must
be made aware of (1) the nature of the charges against him; (2) the possible penalties;
and (3) the dangers and disadvantages of self representation.”15 The court went on to
stress that this standard applies to both misdemeanor and felony charges.16 Analyzing
the facts of the case, the court determined that the defendant’s original waiver
consisting of a written statement was insufficient, as it merely recited some of the
possible consequences of a guilty plea and did not at any point apprise the defendant
of the “dangers and disadvantages of proceeding without council.”17 Additionally, the
court found it significant that there was no evidence to indicate that the trial court
provided the defendant with any warnings apart from those contained within the
waiver. The court also determined that there was no evidence as to the defendant’s
background and conduct that would allow a conclusion that his waiver of counsel was
knowing and intelligent irrespective of the noted deficiencies. Accordingly, the court
13See CRS Report 97-68, Gun Ban For Persons Convicted of Misdemeanor Crime of
Domestic Violence: Ex Post Facto Clause and Other Constitutional Issues, by Dorothy
Schrader. Additionally, it is important to note that while the Supreme Court’s decision in
Gideon v. Wainwright, 372 U.S. 335 (1963) established that persons charged with a felony
are entitled to counsel, the Court has also established that a convicted felon cannot challenge
the validity of a predicate conviction as a defense to a firearms charge under 18 U.S.C.
§922(g), even if the individual in question was not represented by counsel. Lewis v. United
States, 445 U.S. 55 (1980). Rather, a felon must challenge the validity of such a conviction
in a collateral proceeding. Thus, by allowing a statutory challenge to a predicate misdemeanor
violence conviction during a proceeding pursuant to a violation of the Lautenberg Amendment,
§921(a)(33)(B) grants misdemeanants a defense not available to felons charged with the
possession of firearms. Id.
14United States v. Akins, 243 F.3d 1199 (9th Cir. 2001).
15Id. at 1203.
16Id. at 1203-1204.
17Id. at 1205.

CRS-5
held that the defendant’s waiver of counsel was insufficient, precluding prosecution
under §922(g)(9).18

Constitutional Challenges
The Lautenberg Amendment has been attacked as impinging upon several
different constitutional provisions. While arguments that §922(g)(9) violates the
Second and Tenth Amendments and operates as a bill of attainder have been dismissed
readily, arguments relating to the Commerce Clause, the Equal Protection Clause, and
the Ex Post Facto Clause have received more measured consideration.19
A. Commerce Clause.
The validity of §922(g)(9) has been challenged on the basis that it violates the
tenets of the Commerce Clause, as delineated in the Supreme Court’s decision in
United States v. Lopez.20 Specifically at issue in Lopez was whether a federal statute
prohibiting the mere possession of a firearm on school grounds exceeded
congressional authority.21 In explaining the judicially enforceable limits of the
Commerce Clause, the Court delineated three categories of activity that come within
its ambit.22 First, Congress possesses the authority to regulate the use of the channels
of interstate commerce.23 Second, Congress may regulate the instrumentalities of
interstate commerce, or persons or things in interstate commerce.24 Finally, Congress
may also regulate activities which have a substantial relation to, and effect on,
interstate commerce.25
In applying these standards to the case before it, the Supreme Court determined
that the statute at issue, 18 U.S.C. §922(q), was neither a regulation of the
instrumentalities or channels of interstate commerce, making the determination of the
18Id. at 1205-1206. It should be noted that the Court of Appeals for the Eighth Circuit has also
ruled on the waiver requirement, holding that evidence of a written waiver, coupled with a
prior invocation of the right to counsel, is sufficient for a court to conclude as a matter of law
that a defendant has made a knowing and intelligent waiver of the right to counsel. United
States v. Smith, 171 F.3d 617, 622 (8th Cir. 1999).
19See National Ass’n of Government Employees, Inc. v. Barrett, 968 F.Supp. 1564 (N.D. Ga.
1997), aff’d, 155 F.3d 1276 (11th Cir. 1998); Fraternal Order of Police v. United States, 152
F.3d 998 (D.C. Cir. 1998); United States v. Gillespie, 185 F.3d 693 (7th Cir. 1999); United
States v. Mitchell, 209 F.3d. 319, 322-323 (4th Cir. 2000).
20514 U.S. 549 (1995).
21Id.
22Id. at 557
23Id. at 558.
24Id. at 558.
25Id. at 558.

CRS-6
case hinge on the “substantial effects” test.26 In conducting its analysis under this
category, the Court determined that §922(q) was a criminal statute which, by its
terms, had no connection with commerce or any sort of economic enterprise, and did
not play an essential role in a larger regulatory scheme.27 The Supreme Court also
found it significant that there was no jurisdictional element in the statute which would
ensure that firearm possession affected interstate commerce in a particular case.28
To date, every court applying this standard has readily determined that
§922(g)(9) meets minimum constitutional requirements under the Commerce Clause.
Specifically, reviewing courts have determined that §922(g)(9) contains a
jurisdictional element that requires the government to establish that the firearm at
issue was possessed in or affecting commerce, or was received after having been
shipped or transported in interstate or foreign commerce.29 Thus, unlike the statute
at issue in Lopez, the structure of §922(g)(9) requires the establishment of a nexus
between the illegal firearm and interstate commerce, limiting the statute’s application
to a discrete set of firearm possessions that have an explicit connection to interstate
commerce, thereby obviating Commerce Clause concerns.30
B. Equal Protection.
It has also been argued that §922(g)(9) violates the equal protection clause by
punishing domestic violence misdemeanors more harshly than other misdemeanor
offenses, by punishing misdemeanor but not felony offenses, and by excluding law
enforcement officers convicted of misdemeanor domestic violence offenses from the
public interest exception of 18 U.S.C. §925(a)(1).
Determining the level of scrutiny to be applied under the Equal Protection Clause
hinges upon an analysis of whether a law negatively impacts a suspect class or a
fundamental right. If there is such an impact, the law is subjected to strict scrutiny,
26Id. at 559.
27Id. at 561.
28Id. at 561-562. In Lopez, the Supreme Court adjusted the judiciary’s traditional approach
to Commerce Clause analysis, maintaining that while the history of Commerce Clause
jurisprudence represented an expansive interpretation of federal Commerce Clause power, the
judiciary maintained the ability to enforce limits on that power. In addition to its consideration
of the issues discussed above, the Court also rejected the argument that possession of a gun
in the school environment impacted the economy by contributing to the costs associated with
violent crime, curtailing the willingness of individuals to travel to areas seen as unsafe, or by
posing a threat to the education of the citizenry, thus comprising the quality of the nation’s
workforce. Id. at 563-564. The Court went on to note that if such remote connections to
economic effects were accepted as relevant, it would be almost impossible to identify “any
activity by an individual that Congress is without authority to regulate.” Id. at 565.
29See Fraternal Order of Police v. United States, 173 F.3d 898, 907-908 (D.C. Cir. 1999);
United States v. Gillespie, 185 F.3d 693, 704-760 (7th Cir. 1999); National Ass’n of
Government Employees, Inc. v. Barrett, 868 F.Supp. 1564, 1572 (N.D. Ga. 1997) aff’d, 155
F.3d 1276 (11th Cir. 1998).
30See Lopez, 514 U.S. at 561-563.

CRS-7
requiring the government to prove that the law is necessary to satisfy a compelling
governmental interest.31 In instances where a law does not affect a suspect class or a
fundamental right, the court engages in “rational basis” review, requiring only that the
law be rationally related to the asserted governmental interest.32
Applying these standards, reviewing courts have held that the Lautenberg
Amendment does not violate the Equal Protection Clause. In Hiley v. Barrett, for
instance, the Court of Appeals for the Eleventh Circuit, adopting the opinion of the
district court, found that the Lautenberg Amendment passed constitutional muster.33
The Barrett court began its equal protection analysis by noting that the appropriate
level of review was the rational basis test, as none of the claims involved a suspect
class or fundamental right.34
Addressing the argument that the Lautenberg Amendment irrationally
categorizes misdemeanor domestic violence offenses more harshly than other
misdemeanors, the court first noted that the right to equal protection under the law
does not strip Congress of the authority to “‘to treat different classes of persons in
different ways.’”35 As such, the court determined that, in light of the Amendment’s
goal of reducing “‘the likelihood that domestic violence will escalate into murder,’”
Congress had rationally concluded that misdemeanor domestic violence offenders
should not possess firearms.36
The court next turned to the assertion that the Amendment unjustifiably
discriminates between misdemeanor domestic offenders and convicted felons. This
argument centers on the fact that while convicted felons may regain the right to
possess a firearm if they receive a pardon, have their conviction expunged, or
otherwise have their civil rights restored, many jurisdictions do not deprive
misdemeanants of their civil rights. As such, the Amendment creates “an anomaly
whereby certain felons may be able to possess firearms, but domestic violence
misdemeanants will not.”37 While acknowledging that such an anomaly may indeed
come to pass, the court deemed it irrelevant, noting that “courts have rejected equal
protection challenges to the gun control laws that rest on anomalies resulting from
differing state regimens.”38
31See, e.g., City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439-40 (1985).
32See, e.g., Heller v. Doe, 509 U.S. 312, 319 (1993).
33155 F.3d 1276 (11th Cir. 1998). Further discussion regarding this case refers to the decision
of the District Court for the Northern District of Georgia in National Ass’n of Government
Employees, Inc. v. Barrett, 968 F.Supp. 1564 (N.D. Ga. 1997).
34Id. at 1573.
35Id. at 1573 (quoting Johnson v. Robinson, 415 U.S. 361, 74 (1974)).
36Id. at 1573 (quoting 142 Cong. Rec. S11227 (daily ed., Sept. 25, 1996) (statement of Sen.
Lautenberg)).
37Id. at 1574.
38Id. at 1574.

CRS-8
The court then considered the final argument that the Amendment impermissibly
discriminates against law enforcement officers who have committed misdemeanor
domestic violence offenses. The court rejected this argument, noting that while the
ultimate effect §922(g)(9) “may be to bar certain domestic violence misdemeanants
of a career that requires the ability to possess a firearm, equal protection concerns are
not implicated by the “uneven effects” of a rational classification, absent evidence of
discriminatory intent.39 Applying this rationale to the case at hand, the court
determined that there was no evidence of any discriminatory intent towards police
officers by Congress, obviating any equal protection concerns.40
The Court of Appeals for the Seventh Circuit has also rejected equal protection
challenges to the Lautenberg Amendment, employing the same reasoning as the
district court in Barrett.41
The Court of Appeals for the District of Columbia also upheld the Lautenberg
Amendment on equal protection grounds in Fraternal Order of Police v. United
States42 (FOP II). However, it is important to note that the court originally determined
that the Amendment failed rational basis review under the Equal Protection Clause
(FOP I).43 In FOP I, the court focused on the lack of a public interest exception for
law enforcement officers, and held that there was in fact no rational basis for the
distinction between domestic violence misdemeanants and felons in this context.44 The
court maintained that the Amendment could not be permitted to enable the
government to prohibit domestic violence misdemeanants from possessing firearms
pursuant to the public interest exception “while it imposes a lesser restriction on those
convicted of crimes that differ only in being more serious.”45
In FOP II, the United States was granted a rehearing by the court, resulting in
a reversal of the decision in FOP I. The court began its analysis in FOP II by noting
the factors that led to its initial decision determining that the Lautenberg Amendment
failed the rational basis test. Specifically, the court stated that “treating
misdemeanants more harshly than felons seems irrational in the conventional sense of
that term,” and that the imposition of a lesser duty on felons raised questions
regarding the applicability of the general maxim that Congress “is entitled to address
a problem ‘one step at a time.’”46 Upon further review, however, the court qualified
this statement, determining that it was “not unreasonable for Congress to believe that
existing laws and practices adequately deal with the problem of issuance of official
39Id. at 1574-75.
40Id. at 1574-75.
41See United States v. Gillespie, 185 F.3d 693 (7th Cir. 1999).
42173 F.3d 898 (D.C. Cir. 1999).
43Fraternal Order of Police v. United States, 152 F.3d 998 (D.C. Cir. 1998).
44Id. at 1002-1003.
45Id. at 1004.
46173 F.3d 898, 903 (quoting FOP I, 152 F.3d at 1004).

CRS-9
firearms to felons but not domestic violence misdemeanants.”47 The court went on to
explain that “nonlegal restrictions, such as formal and informal hiring practices
may...prevent felons from being issued firearms” pursuant to the public interest
exception, mitigating the apparent disparity created by the Lautenberg Amendment.48
The court’s reversal in FOP II prevented a split among the circuits regarding the
validity of the Lautenberg Amendment in the equal protection context. It should be
noted, however, that the FOP cases represent differing but tenable interpretations
regarding the effect of the Amendment, leaving open the possibility that future courts
may again differ on the proper application of the Equal Protection Clause to the
Lautenberg Amendment.
C. Ex Post Facto Clause.
Finally, the Lautenberg Amendment has also been challenged as a violation of
the Ex Post Facto Clause, given that it prohibits a domestic violence misdemeanant
from possessing a firearm even if the predicate offense occurred prior to its
enactment.49 The district court decision in National Ass’n of Government Employees,
Inc. v. Barrett, as affirmed and adopted by the Court of Appeals for the Eleventh
Circuit in Hiley v. Barrett, rejected this argument, stating that the prohibited activity
is the post-enactment possession of a firearm, as opposed to a pre-enactment
domestic violence misdemeanor.50 Clarifying this point, the court explained that the
Lautenberg Amendment, by prohibiting post-enactment possession, did not
criminalize conduct that occurred prior to its effective date.51 As such, the court held
that the Amendment was not retrospective and, therefore, not violative of the Ex Post
Facto Clause.52 This reasoning has also been employed by the Court of Appeals for
the Fourth Circuit and various district courts in rejecting ex post facto challenges to
the Lautenberg Amendment.53
47Id. at 903-904.
48Id. at 904.
49 A law violates the strictures of the Ex Post Facto Clause if it applies to events that occurred
before its enactment and disadvantages an affected offender by altering the definition of
criminal conduct or increasing the punishment for a crime. See Weaver v. Graham, 450 U.S.
24, 28-29 (1981).
50Barrett, 968 F.Supp. at 1576.
51Id. at 1576.
52Id. at 1576.
53United States v. Mitchell, 209 F.3d. 319, 322-323 (4th Cir. 2000). See also, United States
v. Boyd, 52 F.Supp.2d 1233, 1236-37 (D.Kan. 1999); McHugh v. Rubin, 49 F.Supp.2d 105,
108 (E.D.N.Y. 1999); United States v. Hicks, 992 F.Supp. 1244. 1245-46 (D.Kan. 1997);
United States v. Meade, 986 F.Supp. 66, 69 (D.Mass. 1997), aff’d, 175 F.3d 215 (1st Cir.
1999).

CRS-10
Conclusion
As has been shown, the Lautenberg Amendment establishes a comprehensive
federal scheme that is designed to prevent the use of firearms in domestic violence
offenses by prohibiting the possession of firearms by persons convicted of a
misdemeanor crime of domestic violence, as well as the knowing sale or disposition
of any firearm or ammunition to a domestic violence misdemeanant. Furthermore, by
altering the traditional public interest exception of the GCA, the Lautenberg
Amendment has been made applicable to state and federal law enforcement officials.
While these provisions have been a significant source of legal controversy,
reviewing courts have rejected all challenges to the validity of the Amendment,
determining that its provisions comport with minimum constitutional requirements.
Furthermore, while it is important to remember that there are tenable constitutional
arguments that may be raised against the Lautenberg Amendment, the breadth of the
decisions discussed above would appear to minimize the possibility of any future
rulings invalidating its provisions.

EveryCRSReport.com
The Congressional Research Service (CRS) is a federal legislative branch agency, housed inside the
Library of Congress, charged with providing the United States Congress non-partisan advice on
issues that may come before Congress.
EveryCRSReport.com republishes CRS reports that are available to al Congressional staff. The
reports are not classified, and Members of Congress routinely make individual reports available to
the public.
Prior to our republication, we redacted names, phone numbers and email addresses of analysts
who produced the reports. We also added this page to the report. We have not intentional y made
any other changes to any report published on EveryCRSReport.com.
CRS reports, as a work of the United States government, are not subject to copyright protection in
the United States. Any CRS report may be reproduced and distributed in its entirety without
permission from CRS. However, as a CRS report may include copyrighted images or material from a
third party, you may need to obtain permission of the copyright holder if you wish to copy or
otherwise use copyrighted material.
Information in a CRS report should not be relied upon for purposes other than public
understanding of information that has been provided by CRS to members of Congress in
connection with CRS' institutional role.
EveryCRSReport.com is not a government website and is not affiliated with CRS. We do not claim
copyright on any CRS report we have republished.