The XX Factor

The Supreme Court Upheld the Law Against Domestic Abusers Owning Guns. If Only Someone Would Enforce It.

More than half of American women killed with guns in 2011 were murdered by intimate partners or family members.


One of the only gun control measures to have passed Congress in recent decades easily withstood a Supreme Court challenge on Monday. In Voisine et al. v. United States, the justices ruled 6-2 against two Maine men who argued that a law barring domestic abusers from owning guns shouldn’t have applied to them.

The law in question is the Lautenberg Amendment, introduced in 1996, which forbids anyone “who has been convicted in any court of a misdemeanor crime of domestic violence” from possessing “any firearm or ammunition.” As Slate’s Mark Joseph Stern has written: “It’s hard to get a gun regulation through Congress. There’s a reason this one passed.” For some context: More than half of American women killed with guns in 2011 were murdered by intimate partners or family members, and when guns are present in homes were domestic violence occurs, the risk of homicide for women rises by roughly 500 percent, according to research from the advocacy group Everytown for Gun Safety.

Stephen Voisine was convicted of misdemeanor assault of his girlfriend not once but twice—in 2003 and 2005. The case that bears his name turned on a semantic debate over what it means to be guilty of the “use…of physical force,” which is central to the law’s definition of domestic violence. Under Maine’s statute, Voisine was charged with harming his girlfriend “intentionally, knowingly, or recklessly.” He argued that a person who commits assault “recklessly” hasn’t “used” the force that causes his intimate partner’s injury. This made for an intriguing philosophical debate—but not, in the eyes of most of the Justices, a particularly compelling case. As Justice Elena Kagan wrote in her majority opinion, “Nothing in the word ‘use’—which is the only statutory language either party thinks relevant—indicates that [the law] applies exclusively to knowing or intentional domestic assaults.”

This skepticism appears to have been heightened, at least for some of the Justices, by their belief in the statute’s function. As Justice Ruth Bader Ginsburg pointed out in oral arguments: “The government tells us that heavy consequences ride on this… that many domestic violence situations would not be subject to prosecution under this statute on your read, if you require knowing or intentional, rather than reckless, state of mind.”

Gutting the Lautenberg Amendment would indeed have had “heavy consequences”—but unfortunately, this wise piece of policy could be serving us far better if the government were truly enforcing it. An Everytown analysis from 2014 found gaping loopholes. “[F]ederal law (and the law in most states) allows domestic abusers and stalkers to easily evade gun prohibitions by purchasing guns from unlicensed, private sellers,” the report pointed out, noting that 1 in 4 prohibited gun buyers who turned to the internet for weapons had a domestic violence arrest on record. What’s more, “forty-one states do not require all prohibited domestic abusers to relinquish guns they already own.” Voisine himself demonstrates this problem. He was barred from owning guns starting in 2003, but he continued to keep them in his home until 2009, when the discovery that he had shot a bald eagle—an endangered species—led officers to notice that he shouldn’t have had a rifle in the first place.

Some convicted abusers turn their illegal weapons against the people whom the Lautenberg Amendment was written to protect. In 2014, a man with a family violence protective order against him in Dallas County, Texas, went on to kill the woman who was pregnant with his child. The next year, the county announced that it would force abusers to turn over their guns. Data suggest that better enforcement makes a vital difference: A study from Johns Hopkins’ Bloomberg School of Public Health has found that “laws restricting firearm access for batterers subject to restraining orders are associated with a 19 percent reduction in rates of intimate homicide.”

There’s even strong reason to believe that applying the Lautenberg Amendment more stringently would reduce the number of mass shootings, as Margaret Talbot of The New Yorker has written. Everytown reviewed every shooting with four or more victims between January 2009 and July 2015, and found: “In at least 76 of the cases (57%), the shooter killed a current or former spouse or intimate partner or other family member, and in at least 21 incidents the shooter had a prior domestic violence charge.” The link between violence at home and more widespread slaughter seems clearer than ever in the wake of the shooting in Orlando, the deadliest in U.S. history, which was perpetrated by a man who allegedly held his first wife hostage.

It’s a relief that Voisine failed to tear a hole in the Lautenberg Amendment, despite the flaws in the law’s implementation. In lower courts, the plaintiff also argued that the Lautenberg Amendment presented a constitutional issue, infringing on his right to bear arms. The Supreme Court declined to hear that aspect of the case, but oral arguments made headlines largely because Clarence Thomas broke his decade-long silence to affirm his support of the Second Amendment. Thomas’s dissenting opinion likewise asserted that Voisine’s constitutional rights had been violated, but not a single fellow Justice joined him in that aspect of his dissent.

In other words, the idea that domestic abusers shouldn’t have guns is pretty uncontroversial, even in Congress and among the court’s conservative Justices. It’s depressing that, despite that consensus, so many offenders have no trouble staying armed.