Examining the Lautenberg Amendment in the civilian and military contexts: congressional overreaching, statutory vagueness, ex post facto violations, and implementational flaws.

• Author: Golden, Jessica A.
• Position: Domestic violence gun control law

INTRODUCTION

Imagine a court reducing a domestic violence felony to a misdemeanor because the judge does not want to give a "noncriminal" (1) male a felony conviction merely for attacking his wife. (2) Imagine further that as a result of this judicial reluctance, the court sentences the defendant to serve his time only on weekends. The defendant is then released. Subsequently, he goes home and attacks his wife again. This time he attacks her with a gun. This time he kills her. Now imagine this man is a police officer or soldier who has sworn an oath to protect you, (3) or perhaps a next door neighbor, or a stranger you pass on the street.

When Congress passed the Lautenberg Amendment (4) to the Gun Control Act of 1968 ("Lautenberg Amendment" or "the Amendment") in September 30, 1996, it was with the express purpose of reducing scenarios like this one, of preventing that police officer, soldier, neighbor, or stranger from committing gun-related domestic violence. (5)

The Lautenberg Amendment states that:

it shall be unlawful for any person ... who has been convicted in any court of a misdemeanor crime of domestic violence, to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce. (6) Citing national domestic violence statistics including the percentage of domestic violence homicides involving firearms each year, (7) Senator Lautenberg intended to close a dangerous loophole in the Gun Control Act enabling domestic violence offenders to evade an additional felony conviction for gun possession by getting domestic violence felony charges reduced to misdemeanors. (8) Senator Lautenberg sought to secure the same protection for the family of a domestic violence misdemeanant as was theoretically provided the family of a domestic violence felon through existing law. (9) The Lautenberg Amendment, therefore, subjects domestic violence misdemeanants to the same restrictions (10) faced by prior convicted felons, making it a felony for domestic violence misdemeanants to ship, transport, or possess a weapon in or affecting interstate commerce. (11)

However, while the Lautenberg Amendment mirrors the Gun Control Act in making gun possession a felony, its scope is broader. The Lautenberg Amendment precludes the Gun Control Act's public interest exception (12) exempting governmental agencies from the Gun Control Act. (13) Therefore, the Amendment applies to, and has great potential to impact both police and the military. (14)

With the Lautenberg Amendment, Congress rightly prioritized the need to reduce gun-related domestic violence nationwide. However, while this underlying idea is fundamental to domestic safety, the Lautenberg Amendment is possibly unconstitutional. (15)

Congress may have impermissibly abused its Commerce Clause authority in passing the Lautenberg Amendment. (16) This conclusion is supported by the United States Supreme Court's recent decision in United States v. Morrison, (17) where the Court struck down the civil remedies provision of the Violence Against Women Act (18) due to an impermissible overstepping by Congress under the Commerce Clause. (19) In light of Morrison, a rebirth of suits challenging the constitutionality of the Lautenberg Amendment could occur.

Due to the definitional vagueness of the terms in the Lautenberg Amendment, the statute may also violate the Due Process Clause of the Constitution. (20) Further, in the military setting, the Lautenberg Amendment possibly constitutes an impermissible ex post facto law because of its solely punitive effects. (21) Even if the Lautenberg Amendment is constitutional, the Amendment's definitional vagueness and inherent structural and implementational flaws render it ineffective. (22)

Part I of this Comment examines the Commerce Clause (and Tenth Amendment) challenges (23) to the Lautenberg Amendment. It provides the history of cases thus far failing to successfully challenge the constitutionality of the Lautenberg Amendment. It then discusses the Supreme Court's decision in Morrison, that struck down the civil remedies provision of the Violence Against Women Act ("VAWA" or "VAWA provision") as a violation of the Commerce Clause. (24) Applying the Morrison rationale to the Lautenberg Amendment, this Comment concludes that Congress may have violated its Commerce Clause authority by passing the Lautenberg Amendment.

Part II examines the Due Process Clause challenge to the Lautenberg Amendment, discussing case law representing both sides of the issue. Although courts have upheld the constitutionality of the Lautenberg Amendment under the Due Process Clause, the Lautenberg Amendment could be characterized as unconstitutionally vague. Further, as Judge Posner noted in his dissent in United States v. Wilson, it may be unjust to convict someone of a crime when that person had no knowledge his actions were wrongful. If this is true, the Lautenberg Amendment violates the Due Process Clause.

Part III of this Comment analyzes the Ex Post Facto Clause challenge to the constitutionality of the Lautenberg Amendment. It examines this challenge in both the civilian and military settings and concludes that while the Lautenberg Amendment may not be characterized as an impermissible ex post facto law in the civilian context, it could be so construed in the military context. Therefore, this Part argues that the Lautenberg Amendment should be amended to except the military from its reach.

Part IV provides the history of cases raising an Equal Protection Clause challenge to the Lautenberg Amendment cases which have thus far failed. Part V examines further weaknesses with respect to the Amendment's implementation and enforcement. This part argues that flaws inherent in the Amendment's language render the Lautenberg Amendment incapable of reducing nationwide gun-related domestic violence in either civilian or military settings.

This Comment concludes that to successfully reduce domestic violence incidents involving firearms, Congress needs to reexamine and rework the Lautenberg Amendment. Even if the Lautenberg Amendment is constitutional, Congress needs to provide further guidance in how the Amendment should be implemented. In addition, Congress must increase public awareness of the Amendment for it to be effective. If Congress does not take these steps, the Lautenberg Amendment will fail to achieve its intended goals.

1. COMMENCE CLAUSE (AND TENTH AMENDMENT) CHALLENGES TO THE LAUTENBERG AMENDMENT

   Under Article I, Section 8, Clause 3 of the United States Constitution, Congress has the authority to "regulate Commerce with foreign Nations, and among the several States." (25) In 1995, in United States v. Lopez, the Supreme Court elaborated on the power of Congress under the Commerce Clause. (26) The Lopez Court identified three categories of activity Congress can permissibly regulate under its commerce power:

   First, Congress may regulate the use of the channels of interstate commerce.... Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities.... Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce. (27) In Lopez, the Court struck down the Gun-Free School Zones Act (the "Act"), (28) finding the Act an impermissible overextension of Congress's Commerce Clause authority. (29) First, the Court concluded the Act was a "criminal statute that ... has nothing to do with `commerce' or any sort of economic enterprise, however broadly one might define those terms." (30) Thus, the "noneconomic, criminal nature" of possessing guns in school zones was key to the Supreme Court's decision to strike the Act down. (31) Second, the statute lacked the requisite "jurisdictional element" (32) necessary to connect possessing firearms in a school zone with interstate commerce. (33)

   In Lopez, the Supreme Court rejected the government's attempt to link gun-related violence in school zones with interstate commerce. The Court found the government's "costs of crime" and "national productivity" arguments would "permit Congress to `regulate not only all violent crime, but all activities that might lead to violent crime, regardless of how tenuously they relate to interstate commerce." (34) To allow such arguments, the Court reasoned, would eliminate any limitation on federal power under the Commerce Clause. (35) The Supreme Court thus struck down the Act, concluding that the Act's legislative history and congressional findings were insufficient to demonstrate that possessing guns in a school zone effected interstate commerce. (36)

   1. Applying Lopez to The Lautenberg Amendment

      In the context of the Lautenberg Amendment, the relevant portion of the Commerce Clause, as in Lopez, relates to Congress's authority to regulate activities having a "substantial relation" to interstate commerce. (37) To prevail in a Commerce Clause challenge, the government need only demonstrate a slight effect of a particular activity on interstate commerce. (38) Therefore, a Lautenberg Amendment convictions will be upheld where the government can show the firearm possessed by a domestic violent misdemeanant at the time of arrest was, at some point, in or affecting interstate commerce. (39)

      Opponents of the Lautenberg Amendment have attempted to use Lopez to prove that the Lautenberg Amendment violates the Commerce Clause because there is no substantial relation between firearms possessed by domestic violence misdemeanants and interstate commerce. (40) So far, such challenges have been unsuccessful. (41)

      In Gillespie v. Indianapolis, (42) the Seventh Circuit distinguished the Lautenberg Amendment from the Gun-Free...