Simone Lawson
The right to carry a firearm is a contentious issue in the United States, with the Second Amendment of the Constitution guaranteeing the right to keep and bear arms. This has been interpreted differently by various states, with some implementing constitutional carry or permitless carry, allowing individuals to carry a firearm without a permit. This has raised concerns, particularly in relation to domestic violence, as it could potentially enable abusers to access firearms and endanger their victims. While some federal and state laws restrict firearm possession for individuals with domestic violence convictions or restraining orders, the effectiveness of these laws varies, and the restoration of gun rights is possible in certain jurisdictions. The Supreme Court's 2022 decision in New York State Rifle & Pistol Association, Inc. v. Bruen further complicated the matter, prioritising the historical understanding of the Second Amendment over public safety. As a result, the intersection of constitutional carry and domestic violence remains a complex and divisive topic in the United States.
| Characteristics | Values |
|---|---|
| Federal law | Prohibits people subject to domestic violence protective orders from purchasing or possessing firearms and ammunition |
| Federal law | Does not apply to ex parte orders issued after the court has only heard from one side |
| Federal law | Only applies to final orders after a hearing |
| Federal law | Requires the alleged abuser to have received actual notice of a hearing on the protective order |
| Federal law | Requires the alleged abuser to have had a chance to participate at the hearing |
| Federal law | Requires the order to find that the restrained person poses a credible threat of physical harm |
| Federal law | Requires the order to expressly prohibit the person from causing or threatening to cause physical harm to the intimate partner or child |
| Federal law | Allows states to supplement with additional restrictions so long as they don't conflict with federal law |
| State law | Some prohibit the purchase or possession of firearms by individuals convicted of all violent misdemeanors, regardless of the victim's relationship with the offender |
| State law | Some prohibit convicted stalkers from carrying concealed handguns |
| State law | Some allow law enforcement to block people who pose a danger to the public from carrying concealed handguns |
| State law | Some prohibit people from permitless carry for five years if they were previously convicted of assault with bodily injury, deadly conduct, terroristic threats, or disorderly conduct with a firearm |
| State law | Some allow people carrying concealed handguns without a license to do so within vehicles |
| State law | Some allow people to carry handguns without a state license unless they are disqualified by state or federal law |
| State law | Some increase criminal penalties for family violence crimes |
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What You'll Learn
Domestic violence convictions and gun rights
In the United States, federal law prohibits individuals convicted of a felony or a misdemeanour domestic violence offence from possessing a firearm or ammunition. This ban applies to all felony domestic violence convictions and misdemeanour convictions that are classified as "misdemeanour crimes of domestic violence". The definition of "misdemeanour crimes of domestic violence" includes misdemeanours that involve the use or attempted use of physical force, such as simple assault, assault and battery, and terroristic threats.
The federal gun ban also applies to individuals subject to domestic violence protective orders, including temporary restraining orders and final protective orders. These orders typically involve prohibiting a person from harassing, stalking, harming, or threatening to harm an "intimate partner" or the child of an intimate partner. Intimate partners are defined as co-parents or those who share a relationship as current or former spouses or cohabitants.
It is important to note that the restoration of gun rights after a domestic violence conviction varies across jurisdictions. While some states may restore gun rights, others, like California, have expungement laws that do not restore gun rights, meaning the federal ban still applies. Additionally, states have the freedom to implement their own restrictions as long as they do not conflict with federal law, and many states have expanded gun restrictions for domestic abusers.
In Texas, for example, the Constitutional Carry Law allows individuals over the age of 21 to carry a handgun without a state license unless they are disqualified by state or federal law, including convictions for domestic violence crimes. The Texas law also increased criminal penalties for family violence crimes, elevating them from Class A misdemeanours to third-degree felonies.
The debate surrounding gun rights and domestic violence convictions is ongoing, with legal challenges and changing legislation impacting the landscape of gun ownership restrictions for individuals with a history of domestic violence.
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Domestic violence restraining orders
The process of obtaining a domestic violence restraining order typically involves filling out and submitting the required forms to a court clerk. In some states, such as California, there is no court fee for filing a request for a domestic violence restraining order, and individuals can seek assistance from domestic violence clinics or legal services organizations. The process can take a few weeks or months, depending on the complexity of the case.
Once a restraining order is granted, it is legally binding and enforceable by law enforcement officials or police officers. The order may include provisions such as no-contact directives, restraints on personal conduct by the abuser, orders for the abuser to stay away from specific locations, and child custody arrangements. It is important for victims to keep multiple copies of the protection order and provide them to relevant parties, such as their workplace, school, or daycare if children are involved.
It is worth noting that, in the context of gun laws, there have been recent court rulings in Texas, Louisiana, and Mississippi that struck down a federal law banning individuals under domestic violence restraining orders from owning guns. However, state laws in most states still prohibit individuals under domestic violence restraining orders from possessing firearms. As such, it is essential to be aware of the specific laws and regulations in your state or jurisdiction.
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State laws and constitutional carry
State laws vary on the right to carry a gun without a permit, also known as "constitutional carry". This right is granted by the Second Amendment, which states that "a well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
Each state determines the requirements and limitations on the carrying of firearms. As of 2024, 29 states allow permitless concealed carry, also known as "constitutional carry". These states are Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, West Virginia, and Wyoming. The minimum age requirement to carry a gun without a permit varies from 18 to 21 across these states. For example, in Arizona, those 21 and older can carry a concealed weapon without a permit, but must answer truthfully to a law enforcement officer if asked whether they are carrying a concealed deadly weapon.
Constitutional carry grants the right to carry a gun without a permit, but individuals are still responsible for firearms ownership and must follow state gun laws. For example, in Tennessee, an individual cannot carry a firearm without a permit if they have received a DUI in the last five years or two or more in the last ten years. Additionally, federal law prohibits individuals subject to domestic violence protective orders from purchasing or possessing firearms and ammunition. This includes individuals who have been convicted of domestic violence crimes or are subject to restraining orders.
While the Second Amendment protects the right to bear arms, state and local governments are allowed to enact laws that restrict this right in certain cases. For example, California's expungement law does not restore gun rights for individuals convicted of domestic violence, meaning the federal ban on firearm possession for these individuals still applies.
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The Second Amendment and gun control
The Second Amendment of the US Constitution states: "A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." While there is much debate about whether the Second Amendment guarantees citizens the right to own firearms, there is little debate in America's courts. The US Supreme Court has interpreted the Second Amendment on five occasions, and nearly 40 lower court decisions have addressed the amendment, all concluding that it guarantees a state's right to maintain a militia, not an individual's right to own a gun.
The Founding era had laws regulating the armed citizenry. For example, governments compiled registries of civilian-owned guns appropriate for militia service and conducted door-to-door surveys. The Founders had broad bans on gun possession by people deemed untrustworthy, such as slaves and loyalists. The right to keep and bear arms was not a license for anyone to have an ordinary firearm, and it did not protect a right to revolt against a tyrannical government.
The Second Amendment, therefore, unambiguously recognizes that the armed citizenry must be regulated. The principle that reasonable regulations are consistent with the Second Amendment has been affirmed throughout American history. Courts have repeatedly held that "reasonable" gun laws—those that don't completely deny access to guns by law-abiding people—are constitutionally permissible. Most gun control laws today fit within the categories of "presumptively lawful" regulations outlined in Heller, which include bans on possession of firearms by felons and the mentally ill, bans on concealed carry, and restrictions on guns in schools and government buildings.
Despite this, in February 2023, a conservative-leaning federal appeals court ruled that the federal law prohibiting people subject to domestic violence restraining orders from possessing firearms and ammunition is unconstitutional. However, in June 2024, the Supreme Court disagreed, ruling that the government can take guns away from people subject to such restraining orders.
In terms of state-level legislation, Texas's Constitutional Carry Law, enacted in 2021, allows Texans over 21 to carry a handgun without a state license unless disqualified by state or federal law, such as a previous domestic violence conviction. This has made it more important for those facing domestic violence charges to fight protective orders aggressively, as their right to possess a firearm is restricted when a temporary restraining order is granted.
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Police non-arrest policies and equal protection
In the United States, the right to carry a firearm is a highly contested issue, with the Second Amendment guaranteeing the right to bear arms, while also allowing for certain restrictions on gun ownership and possession. Constitutional carry laws, also known as permitless carry, allow individuals to carry a concealed firearm without a permit. While supporters of constitutional carry argue for the right to self-defence, opponents raise concerns about public safety, particularly in relation to domestic violence.
The impact of constitutional carry laws on domestic violence is a significant concern. Domestic violence is a prevalent issue in the US, and firearms are often involved, leading to devastating consequences. Research has shown that when states restrict access to guns for individuals with a history of domestic violence, intimate partner homicides are reduced by 25%. This indicates that gun restrictions can be an effective tool in protecting survivors of domestic violence and preventing fatal incidents.
However, constitutional carry laws can undermine these efforts by making it easier for domestic abusers to obtain and carry firearms. In states with constitutional carry, individuals prohibited from possessing firearms due to domestic violence restraining orders or convictions may be able to evade enforcement by carrying concealed weapons. The lack of a permit requirement makes it challenging for law enforcement to identify and prevent armed domestic abusers.
Police non-arrest policies refer to situations where law enforcement officers have the discretion to not arrest an individual, even when there is probable cause or a warrant. In the context of domestic violence, non-arrest policies are often implemented to provide alternatives to incarceration, such as diversion programs or counselling. While these policies aim to address the underlying issues contributing to domestic violence, they can also inadvertently impact equal protection under the law.
When police departments implement non-arrest policies, they must ensure that they are applied consistently and fairly to all individuals involved in domestic violence incidents. This includes considering factors such as the severity of the offence, the presence of aggravating circumstances, and the safety of the victims and the public. Inconsistent application of non-arrest policies can lead to disparities in treatment, potentially violating the equal protection clause of the Fourteenth Amendment.
To uphold equal protection, law enforcement agencies should establish clear guidelines for non-arrest policies, outlining the criteria for diversion or alternative resolutions. These guidelines should be consistently applied across all cases, regardless of the characteristics of the individuals involved. Additionally, victims of domestic violence should have input in the decision-making process, ensuring that their safety and well-being are prioritised. Regular review and evaluation of non-arrest policies are also essential to identify any disparities or unintended consequences and make necessary adjustments.
In conclusion, while constitutional carry laws may impact the enforcement of gun restrictions for domestic abusers, police non-arrest policies play a crucial role in balancing the need for public safety and equal protection. By carefully considering the implementation and application of these policies, law enforcement can strive to protect survivors of domestic violence, hold offenders accountable, and ensure that equal protection under the law is upheld.
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Frequently asked questions
Constitutional carry refers to the ability to carry a firearm, either openly or concealed, without a license or permit. This applies to both residents and non-residents of a state, as long as they are over the age of 18.
No, constitutional carry does not apply to individuals with a history of domestic violence. Federal laws and state laws prohibit people who are subject to domestic violence protective orders or restraining orders from purchasing or possessing firearms and ammunition. These laws are in place to protect victims of domestic violence and reduce intimate partner homicides. However, there have been legal challenges to these laws, with some arguing that they violate the Second Amendment.
The penalties for violating domestic violence gun restrictions can vary by state. In Texas, for example, a conviction for family violence increases the penalty from a Class A misdemeanor to a third-degree felony. At the federal level, violating a domestic violence gun ban can result in a steep fine, up to 15 years in prison, or both.
