Friday, June 29, 2012

Boise Attorney Discusses Domestic Violence and Your Right to Bear Arms

Domestic Violence and the Right to Bear Arms
As a Boise Divorce Attorney I handle hundreds of domestic violence cases each year.  Some of these are mere allegations of domestic violence, while others actually lead to the implementation of a restraining order or a criminal conviction for domestic violence.  But what exactly, does domestic violence have to do with the right to bear arms?

No Guns for Felons
Firstly, the Second Amendment of United States Constitution grants the right to bear arms to all U.S. Citizens.  Many people know that you can lose this right if you are convicted of a felony.  As a Boise Criminal Attorney, I see individuals lose this right regardless of the nature of the felony.  For example, it makes sense that you would lose your right to carry a gun if you committed a felony involving a gun.  However, it doesn't stop there.  If you incur a third time DUI (a felony), you will lose your right to bear arms.  There are two exceptions to the "any" felony rule.  If you are convicted of a felony in a foreign country or a felony involving an antitrust or unfair trade practices you cannot be convicted in federal court for illegal gun possession.

Domestic Violence Conviction
Prior to 1996, domestic violence, unless it rose to the level of a felony, and gun control had very little to do with one another.  In 1996 the US Congress passed a law that made it illegal to bear arms if you were convicted of the crime of domestic violence.  What does this mean? 

Although domestic violence is a crime, it is often handled in the divorce or family law context and without criminal implications.  An ex parte hearing is the first step.  This is an emergency hearing where the individual who is being abused petitions the court for a temporary restraining order.  The court will issue the order on a temporary 2 week basis to provide protection, but also to give the other side the chance to have their side heard.  If, after hearing the evidence, the judge determines that there has been domestic violence they will order a no contact order.  These generally last a year and must be renewed thereafter.  If the judge determines there was no basis for the temporary order he or she will dismiss the case.  If the battered individual files charges with the police and domestic violence charge is pursued by the prosecuting attorney the individual inflicting the harm can be charged and potentially convicted of the crime of domestic violence.  If this happens, that individual will permanently lose all rights to bear arms.  It doesn't just apply to handguns for protection, but applies to hunting guns and ammunition as well.  I say permanently because, even if your record is expunged or you are otherwise pardoned (the only way to get your right to bear arms back), it can be difficult to restore your rights.

As a Boise Divorce Attorney, I must always counsel my clients on this potentiality.  If you have been convicted of the crime of domestic violence and you have a gun in your possession, instead of being your divorce lawyer, I will become your criminal lawyer.

Even if you aren't convicted of the crime of domestic violence, simply by being subject to a no contact restraining order you will lose your right to bear arms.  This loss of rights, however, is only temporary.  Once the no contact order has expired you can once again go hunting or have a gun in your home for protection.

What If You Use a Gun As Part of Your Work?
Is there a law enforcement or a military exception to the gun control law?
There is not.  The Federal Code does allow for some exceptions to gun possession for law enforcement or military personnel, but not when a domestic violence conviction is involved.  What this means is you, in effect, is you lose your ability to work in your profession because you cannot pack your weapon, nor carry ammunition. 

Domestic Violence is a serious charge.  If you have a DV issue and you would like to speak to a Boise Family Law Attorney, give us a call, (208) 472-2383 and see what we can do for you.


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