Misdemeanor Domestic Violence and the Second Amendment

By Tim Graves, Esq.

In the United States, if you are convicted of a felony, you cannot legally possess firearms. The Supreme Court of the United States recently ruled in United States v. Castleman that a misdemeanor conviction of domestic violence can also preclude the person's right to bear arms. The Court based this decision on the fact that "domestic violence is pervasive;" and that "this pervasiveness, combined with the danger created when guns and domestic violence mix." [1]

However, not all incidents of misdemeanor domestic violence will now preclude citizens from possessing firearms. Traditionally, "the element of force in the crime of batter was 'satisfied by even the slightest offensive touching." [2] Therefore, the Court ruled that "any physical force" [3] must be used in the incident of domestic violence in order to trigger the preclusion. Therefore, misdemeanor assault that involves pushing or other actual contact, even very minimal contact, such as offensive touching, will trigger this mechanism; however, misdemeanor assault that involves poison or other non-contact will not trigger this mechanism.

What does this mean for someone who has been charged with misdemeanor domestic violence?

A criminal defendant who has been charged with misdemeanor domestic violence and wants to protect his/her Second Amendment rights has two options. First, you can fight the charge and take it trial. Second, you can try to plead guilty to lesser offense that does not involve domestic violence or actual physical contact. Which option is best for you turns on the alleged facts of the indictment. Contact our experienced Criminal Defense Team at Cantafio & Song PLLC to determine your course of action.