Domestic violence, firearms, and a federal registry: equipping victims to enforce lifesaving legislation

• Author: Bonnie Carlson
• Position: Assistant Professor at Mercer University School of Law
• Pages: 73-115

DOMESTIC VIOLENCE, FIREARMS, AND A FEDERAL

REGISTRY: EQUIPPING VICTIMS TO ENFORCE LIFESAVING

LEGISLATION

BONNIE CARLSON*

ABSTRACT

Guns and domestic violence can be a lethal combination for victims. In the

1990s, Congress recognized this danger and passed two important pieces of

legislation: one barring individuals subject to a protection order from possess-

ing firearms, and one prohibiting the same from individuals convicted of domes-

tic violence. Unfortunately, these laws have not been well-enforced. One major

obstacle to their enforcement is the absence of a national registry of firearm

ownership data. This informational void has effectively stripped the domestic vi-

olence gun bans of their teeth: even when barred from possessing firearms, abu-

sive partners often simply lie and claim they have none in their possession.

Victims are often unaware that their abusive partners have retained firearms

illegally; little recourse is available when nothing can confirm that the partner

owns a firearm at all.

This Article proposes a bold solution—the creation of a federal registry of

firearm owners—and describes how a registry would save the lives of domestic

violence victims. The Article tackles how the recent landmark Second

Amendment decision of New York State Rifle & Pistol Association v. Bruen

would apply to a registry, and how the registry would survive even the height-

ened constitutional scrutiny this case created. A federal firearm registry is a

critical, life-saving tool that will help enforce laws already on the books to pro-

tect domestic violence victims.

This country is reckoning with increasing gun violence and suffering the con-

sequences of mass shootings often perpetrated by those with a history of com-

mitting domestic violence. This Article proposes a workable solution to start

taking gun violence against domestic violence victims seriously.

INTRODUCTION .............................................. 75

I. THE NATIONAL CRISIS OF GUNS AND DOMESTIC VIOLENCE . . . . . . . . . . . 77

A. THE DANGER OF GUNS TO DOMESTIC VIOLENCE VICTIMS ........ 77

B. THE CONGRESSIONAL RESPONSE ......................... 79

* Assistant Professor at Mercer University School of Law. Thank you to Deborah Epstein, Rachel

Camp, and Catherine Hancock for their invaluable feedback on early drafts of this Article. Thank you

also to Linda Jellum and Jeremy Kidd for their ideas and words of encouragement over the last year.

Thank you to Deneen Senasi and all members of the Mercer Faculty Research & Writing Colloquium

for their support, as well as the other participants in and attendees of the Southeastern Association of

Law Schools New Scholar Workshop. © 2022, Bonnie Carlson.

73

II. A BRIEF HISTORY OF GUN LEGISLATION IN THE UNITED STATES . . . . . . . 83

A. THE FIRST REGISTRY TO THE GUN CONTROL ACT OF 1964 . . . . 83

B. THE FIREARM OWNERS PROTECTION ACT OF 1986 TO PRESENT

DAY............................................. 84

III. PROPOSAL TO CREATE A FEDERAL FIREARMS REGISTRY ............. 87

A. REQUIREMENTS OF THE REGISTRY ........................ 88

B. VIOLATIONS OF THE REGISTRY ........................... 89

C. ACCESS TO REGISTRY INFORMATION AND GUN OWNER PRIVACY . . . 89

D. LOGISTICS: WHERE TO BEGIN AND HOW TO MAINTAIN THE

REGISTRY ......................................... 90

IV. WHY THE CREATION OF A FEDERAL FIREARMS REGISTRY IS ESSENTIAL TO

SAVING THE LIVES OF DOMESTIC VIOLENCE VICTIMS ............... 91

A. ADDRESSING FIREARM POSSESSION, NOT MERELY FIREARM

PURCHASE......................................... 92

B. INDIVIDUAL ACCESS TO LIFESAVING INFORMATION ............. 93

C. ADVANTAGES FOR VICTIMS WHO USE THE CRIMINAL LEGAL

SYSTEM .......................................... 96

D. ADVANTAGES FOR VICTIMS WHO USE THE CIVIL LEGAL SYSTEM . . 98

V. THE CONSTITUTIONAL PATH FORWARD . . . . . . . . . . . . . . . . . . . . . . . . . 99

A. MODEL STATE REGISTRIES: THE DISTRICT OF COLUMBIA AND

HAWAII .......................................... 100

1. Requirements of the Registries . . . . . . . . . . . . . . . . . . . . . 100

2. Violations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101

3. Privacy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101

4. Success (and Failure) of the Registries . . . . . . . . . . . . . . . 103

B. HISTORICAL CONSTITUTIONAL ANALYSIS OF STATE REGISTRIES . . . . 105

1. Challenges to the District of Columbia’s Registry . . . . . . 105

2. Challenges to Hawaii’s Registry. . . . . . . . . . . . . . . . . . . . 108

C. A NEW STANDARD FOR THE SECOND AMENDMENT: NEW YORK

STATE RIFLE & PISTOL ASSOCIATION V. BRUEN ................ 109

D. APPLYING BRUEN TO A FEDERAL FIREARMS REGISTRY .......... 110

1. Basic Registration Requirements . . . . . . . . . . . . . . . . . . . 110

2. Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112

3. Access to Registry Information . . . . . . . . . . . . . . . . . . . . 113

CONCLUSION ............................................... 114

74 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW [Vol. 24:73

INTRODUCTION

In January 2017, Kevin Janson Neal was arrested for assault with a deadly

weapon against a neighbor in Tehama County, California.

1

Shauna Williams & Phil Helsel, Gunman in California Shootings Spree Needed Mental Health

Help, Sister Says, NBC NEWS (Nov. 15, 2017), https://perma.cc/97HV-85HH.

The presiding judge

entered a criminal protection order against Neal that barred him from possessing

firearms.

2

Joseph Serna, Northern California Shooter Exploited ‘Honor System’ in Telling Court He Had No

Guns, L.A. TIMES (Nov. 21, 2017), https://perma.cc/QGZ8-VER3. Federal law only bans respondents to

civil protection orders from possessing firearms when the order is on behalf of an intimate partner. See

infra Section I. California, however, bars firearm possession when a protection order is entered on behalf

of non-intimate partners as well. Domestic Violence & Firearms in California, GIFFORDS L. CTR. TO

PREVENT GUN VIOLENCE, https://perma.cc/9WXF-CLG5 (last visited Dec. 14, 2022).

Neal turned in one pistol and told law enforcement that he had no other

firearms in his possession.

3

The authorities took him at his word.

4

Ten months later, Neal shot and killed his wife, then hid her body beneath the

floorboards in their home.

5

Jim Seida, Corky Siemaszko, & Phil Helsel, California Mass Shooter Killed Wife, Buried Her

Beneath Floor, NBC NEWS (Nov. 15, 2017), https://perma.cc/N75P-CESE.

The next day, he took a semi-automatic rifle that he

manufactured illegally at home, a handgun registered to his wife, and a pistol he

purchased in North Carolina, of which no record existed in California, and

embarked on a shooting spree.

6

Neal’s attack targeted, among others, students at

a local elementary school, and ended when he was ultimately killed in a shootout

with police.

7

Alene Tchekmedyian, These Are the Victims of the Rancho Tehama Shooting, L.A. TIMES (Nov.

16, 2017), https://perma.cc/P68S-Y7UT.

Neal killed four adults that day and wounded ten others, including

seven children.

8

This tragedy is one of many that has taken place due to, at least

in part, the lack of a comprehensive federal registration database of firearm own-

ership information. This dearth of information can lead to deadly results for com-

munities, but it poses a particular danger to domestic violence victims.

9

Advocates in the field of domestic violence often use the term “victim” or “survivor”

interchangeably to refer to individuals who have experienced domestic violence. Both terms have

certain connotations. See Beyond Victim or Survivor, RESILIENCE: ADVOCATES FOR ENDING VIOLENCE

(June 28, 2021), https://perma.cc/6X9L-ZBSS. This Article uses the term “victim” because this analysis

centers on the civil and legal criminal system. Id.

In a statement on the Congress floor in 1996, Senator Frank Lautenberg

famously said, “all too often, the difference between a battered woman and a

dead woman is the presence of a gun.”

10

Firearms and domestic violence are often

a lethal combination for victims of abuse.

11

In recognition of this fact, Congress

passed two laws in the 1990s to prohibit the possession of firearms by individuals

1.

2.

3. Serna, supra note 2.

4. Id. Tehama County District Attorney was later quoted as saying “The justice system relies on the

honor system.” Id.

5.

6. Serna, supra note 2.

7.

8. Seida, Siemaszko, & Helsel, supra note 5.

9.

10. 142 Cong. Rec. S11226-01 (daily ed. Sept. 25, 1996) (statement of Sen. Lautenberg) (quoting

Sen. Wellstone’s earlier remark).

11. See infra Section I.A. for an in-depth discussion of the risk that guns pose to victims of domestic

violence.

2022] DOMESTIC VIOLENCE, FIREARMS, AND A FEDERAL REGISTRY 75