In the late 18th century, at the Massachusetts convention, Samuel Adams proposed that gun rights be limited to "peaceable citizens." In Pennsylvania, Anti-Federalists proposed guaranteeing a right to bear arms "unless for crimes committed." And in New Hampshire, delegates recommended an amendment that guaranteed a right to bear arms to all except those "in actual rebellion."
I would suggest that these proposals, taken together suggest at the very least an understanding of the Second Amendment as restricted to law abiding citizens. I understand that none of these proposals became law. I also fully appreciate that we should not derive meaning from a proposal that gets deleted in the drafting process. Maybe "law-abiding citizens" was left on the cutting room floor because the Framers wanted all persons to retain their "natural right of resistance and self-preservation," or perhaps because it was so widely understood that only the virtuous could keep their guns. Wiser heads than mine have debated these questions, along with whether three ratifying conventions should control or even dominate the inquiry.
There also has been much debate of late on whether permitting schemes that seek disqualifiers should focus on threatened violence and risk of injury or on a person's specific status. Many states have permitting schemes that require an applicant to, among other things, complete an application, provide fingerprints, identify character references, undergo a criminal background check and be of a certain age. They also contain disqualifiers that bar individuals with a felony conviction, a disorderly persons or misdemeanor conviction involving an act of domestic violence, a history of alcohol or controlled substance abuse problems, a physical disability or disease that would make it unsafe for the applicant to handle a firearm and an applicant's present or prior confinement for a mental disorder.
Connecticut is thankfully one such jurisdiction and recently, Governor Ned Lamont signed into law legislation that received bipartisan support in the General Assembly strengthening Connecticut's gun violence prevention laws. The comprehensive bill includes several commonsense provisions, but the one that I want to focus on adds protections for domestic violence victims.
For long gun and handgun eligibility certificates and handgun permits, the bill now prohibits the Department of Emergency Services and Public Protection (DESPP) Commissioner from issuing the credentials to possess or carry firearms if the person: (1) has been convicted of specific misdemeanors including a misdemeanor violation of any law designated a family violence crime pursuant to C.G.S. sec. 46b-38h, or (2) is prohibited under federal law from shipping, transporting, possessing or receiving a firearm because he or she is a fugitive from justice or has been convicted of a misdemeanor crime of domestic violence. It also expands the crimes of criminal possession of a firearm, ammunition or an electronic defense weapon and criminal possession of a handgun to include possession by such a person. For family violence crimes, it includes those committed on or after October 1, 2023.
Under current law, a violation of these crimes is a class C felony with a two-year mandatory minimum prison sentence and a $5,000 minimum fine, which may not be remitted or reduced unless the court states on the record its reasons for doing so. The bill increases, by one day, the two-year mandatory minimum prison sentence for criminal possession of a firearm, ammunition, or electronic weapon. In doing so, it makes those convicted of this crime eligible for special parole, which is a closer and more rigorous form of supervision (CGS § 54-125e).
A "family violence crime" is a crime, other than a delinquent act, which involves an act of family violence to a family or household member. Generally, "family violence" is physical harm or the threat of violence between family or household members, including stalking or a pattern of threatening, but excluding verbal abuse or arguments unless there is present danger and likelihood of physical violence. But it is not confined to blood or marriage and includes persons living together, past and present, persons who have a child in common, regardless of living arrangements, and persons who are or have been recently in a dating relationship. (CGS § 46b-38a).
Under federal law, a "fugitive from justice" is anyone who has fled from any state to avoid prosecution for a crime or to avoid giving testimony in any criminal proceeding. And a "misdemeanor crime of domestic violence" is an offense that (1) is a misdemeanor under federal, state, or tribal law; (2) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon; and (3) was committed by someone with a domestic relationship with the victim.
What's my obsession with this issue? When a domestic abuse perpetrator, who has engaged in threats to kill or engage in any other type of domestic violence, has access to a gun, the lethality risk for his victim increases exponentially. The numbers are shocking. A domestic abuse victim is five times more likely to be killed by her abuser when the abuser has access to a gun, and nearly each month in the United States, 70 women on average lose their lives to a domestic abuse perpetrator using a gun.
More than half of all male-perpetrated femicides related to domestic abuse are the result of a firearm, and an abuser's access to a gun increases the risk that a domestic homicide will claim the lives of multiple victims. In fact, in nearly half the mass shootings where four or more people are killed, the perpetrator shot an intimate partner or family member. And even where no homicide occurs, a gun provides an abuser additional means to coerce, threaten or terrorize a domestic abuse victim. As even the United States Supreme Court recognized in United States v. Hayes, "[f]irearms and domestic strife are a potentially deadly combination."
By recognizing this deadly combination, Connecticut has enacted a firearm ban on domestic violence misdemeanants to address a "dangerous loophole" in which domestic abusers avoided losing their access to guns because often prosecutors often did not charge, much less convict, such abusers as felons—a status that generally would dispossess them. My public support of legislation that prohibits possession of certain guns and that forbids certain individuals with disqualifying offenses from receiving credentials to possess or carry firearms is hardly new. See Benjamin v. Bailey. (1995). But the fact that gun violence is now the leading cause of death in children and teens is. We know that 59.1% of mass shootings between 2014 and 2019 were related to domestic violence and that in 68% of mass shootings, the shooter had a history of domestic violence or killed a family member or intimate partner.
According to Everytown for Gun Safety, Connecticut now has the fifth strongest gun safety laws and experiences the sixth lowest rate of gun violence in the United States. Good for us. As Everytown research shows, states with strong laws see less gun violence.Indeed, the states that have failed to put basic protections into place have nearly triple the rate of gun deaths as the eight national gun safety leaders.
Copyright 2023. ALM Global, LLC. All Rights Reserved. Originally published by Connecticut Law Tribune [https://www.law.com/ctlawtribune/2023/07/24/disarming-perpetrators-of-domestic-violence-is-the-right-move/], reprinted by permission.
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