Domestic Violence and Your Gun Rights

by Paul Velte, Attorney-at-law

After decades of trying to ban guns, and failing (for the most part); Gunbanners have now changed tactics in the past decade from simply banning guns to banning broad classes of people from possessing them. Persons subject to a "protective order" and persons convicted of an assault involving "domestic violence," are two such groups. The argument made for these laws from the gun-hating crowd is, "Wife beaters and child abusers should not be allowed to have guns."

Traditionally in American law, conviction of a felony resulted in the loss of a whole host of civil rights; but not for misdemeanors. Felonies were considered heinous, misdemeanors were not. In the old days, all felonies were heinous, there were far fewer laws, and far fewer felonies back then, than there are today. Today, the lawbooks are full of felonies declared for all sorts of activities. Unless you wish to blur the distinction between felonies and misdemeanors, why would you support stripping a basic human and Consitutional right (what can be more basic than the right to preserve one's very existence?) upon conviction of a mere misdemeanor? Such is true for misdemeanor crimes of domestic violence. But the matter does not stop there. We now have laws stripping gun rights from people who have never been convicted of any crime--much less a felony. These people are subject to a "protective order." Protective orders are issued in any case where someone claims domestic violence occurred to them.

When you consider that the definition of "domestic violence" has been expanded to include anyone you ever lived with or dated romantically, and that "violence" itself is defined to include mere threats alone, you can begin to see the huge scope of this law. At this point in time, it is possible for you to lose all your rights to possess firearms (and even ammunition) if someone you lived with, or dated, many years ago pops up tomorrow and says, "he threatened me." Warrants can issue and arrests made all upon the accusation of someone who wants revenge. If you have the time and money to fight it in court (few do), and you have good legal defense counsel (few do), you might be able to win a court fight, and keep your guns. But why should anyone's rights be subjected to such a whimsical process? How often and how extensively these cases are prosecuted depends entirely upon your local DA. Gun owners need to pay strict attention to the persons they elect as criminal prosecutors. Common sense candidates will not waste the taxpayers' resources trying to strip people of their gun rights. Gun haters will.

In the 1995 session of the Texas Legislature, a bill was passed (SB 130 by Royce West, Dallas) that made it illegal to "transfer" (e.g., give, loan, sell) a handgun to a person who is subject to a "protective order." This bill passed and is now law. It mirrors federal law on the same topic. It was promoted by the same anti-gun advocates who introduce anti-gun legislation every session. They used the argument that this law would reduce family violence. This law made it a crime to transfer a handgun to a person who is subject to a "protective order" that was granted under chapter 71 of the Family Code.

Here is what is wrong with this kind of law:

First, it impacts on people who have not been convicted of anything. The Brady Law prevents sales to felons. Why? Because felons cannot legally own firearms. Why do felons lose the right to own firearms? Because under American legal tradition, conviction of a felony is considered serious enough to result in the loss of your civil rights. Thus, a judge's protective order strips you of your right to possess guns, without any proof you committed any crime. Since the right to keep guns is a basic right enumerated in both our Federal and State Constitutions, that it can be so easily annihilated establishes a dangerous legal precedent.

Before one can be convicted of a crime, our Constitution requires in all cases: 1) Proof beyond a reasonable doubt, 2) the right to the assistance of legal counsel, and 3) the right to have a jury decide the case. Compare a protective order hearing: A judge decides your case; you have no right to a jury. If you cannot afford a lawyer, too bad, you have to represent yourself. The only proof needed meets our lowest legal standard: "preponderance of the evidence." There is no conviction for any crime. There is no jury trial; no right to a lawyer. And in Texas, there is no right to appeal.

Protective orders are often the product of vengeful motives by ex-lovers. These orders are frequently used for revenge against former spouses, boyfriends, or girlfriends. This law creates yet another incentive to abuse family legal proceedings--which are already rife with perjury in battles over custody and property. Indeed, most protective orders are entered by agreement, because few people object to being ordered to leave each other alone. For such an "agreed" order to be entered, **proof that any violence occurred is not necessary.

The protective order cases that do end up being fought in court frequently amount to little more than swearing matches between former lovers, where one party says "he hit me" and the other says "I did not," with no other proof available. As a result, many judges err on the side of caution and enter an order even in questionable cases so that the people are forced to avoid each other. And remember, you have no right to appeal the judge's order. It is outrageous that a basic, Constitutional right is made conditional upon these protective order proceedings, which afford none of the due process protections seen in criminal prosecutions. But hey, if you're a gun hater, any law that strips someone of their gun rights is a good thing, right?

Consider the effectiveness of these laws in protecting anyone against a person who is really intent on killing his ex-lover. Is the only way to kill an ex-lover with a newly purchased gun? If so, then this law would indeed be effective. Of course, these restrictions cannot stop one from obtaining a gun secondhand, or by illegal, black market means. If one is willing to commit the crime of murder, why would anyone think he's going to obey the law that makes possession of the murder weapon illegal? Clearly, this law is not intended to save lives, but to thwart, and diminish, gun ownership by the law abiding segment of the public. Its only purpose is to further curtail the right of gun ownership in this nation, and to establish a precedent that the "right" to bear arms, can be taken away for the most trivial of reasons.

This set of laws is useless for doing what their proponents claimed--saving lives. But it will serve to trip up unwary citizens with another technical legal rule, and to the extent some portion of the public is dissuaded from becoming firearm owners, that is a good result, in the minds of the gun haters. To them, guns are the evil; not the persons using them. So anything restricting their use, is favored. Never mind that technical gun laws like this are ignored by the criminal element as they go about committing their crimes.

Maybe this is not much of an infringement, but it is an infringement. Another bite at the apple by the gun-hating faction which will pave the way for further restrictions in the years to come. Besides denying gun ownership to as many people as they can, gun-haters have another goal they hope to achieve with this type of legislation: to establish a new legal precedent in American law: That gun rights can be taken away for lesser crimes than felonies. Once they establish that this can be done, there is no limit to the reasons why gun rights can be infringed. Up to now, you had to have committed a felony before you lost your rights. If domestic violence is horrible enough to warrant loss of gun rights, then it is horrible enough to be prosecuted as felony crime. And if you feel that is too harsh, you are right. Perhaps we should not punish misdemeanors as if they were felonies, and perhaps we should re-examine the entire domestic violence dogma, so that we punish it only as the rather trivial matter that is usually is.

With these "misdemeanor gun bans" in place, you can expect to hear the anti-gun crowd call for additional bans for other misdemeanors. Does it make any sense at all that you can lose your gun rights forever for tussling with your own family, yet not if you regularly attack strangers on the street? Clearly, this is the next step for the gun haters. If these laws are not repealed soon, this will be the next target to expand them.

Prepared for

Peaceable Texans for Firearm Rights

ã 2005, by Paul Christian Velte IV