"Boyfriend Loophole" - GOP More
Concerned for Due Process than Dems
Senators are mulling legislation that would expand the
categories of people who are disqualified from owning guns

Senate Minority Whip John Thune (Michael Brochstein/Zuma Press/Newscom)

By Jacob Sullum. June 20, 2022

As a bipartisan group of negotiators hammers out a gun control package that will have enough support to pass the Senate, one seemingly uncontroversial proposal—closing the "boyfriend loophole" for firearm purchases—has proven unexpectedly contentious. Democrats want to expand the disqualification for people convicted of misdemeanors involving domestic violence beyond the current categories, while Republicans worry that the resulting legislation will rely on nebulous definitions and lack appropriate due process safeguards.

Federal law has long prohibited gun possession by people convicted of crimes punishable by more than a year of incarceration, meaning nearly all felonies. That lifelong ban does not allow for the possibility of rehabilitation, since it applies regardless of how old the conviction is, and it is clearly overbroad, since it includes nonviolent crimes such as fraud and even offenses, like drug dealing, that violate no one's rights. At the same time, the ban as originally enacted was arguably underinclusive, since it did not cover violent misdemeanors such as assault and battery—including misdemeanor domestic violence that might signal a potentially deadly threat.

In 1996, Congress addressed that issue by extending the ban to include convictions for any "misdemeanor crime of domestic violence." That phrase is defined as a misdemeanor that "has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim." The ban also covers anyone who is subject to a restraining order aimed at protecting someone who falls into those categories and who faces "a credible threat" to her "physical safety."

The "boyfriend loophole" refers to the omission of misdemeanors and restraining orders involving people who were never married to a would-be gun buyer, never lived with him, and never produced a child with him. [...] .....

The whole concept of "red flag" laws is not only contentious but downright dangerous, with a demonstrative lack of due process as well as 'ex parte' action - exclusion of the subject. It is hard to see a much more devisive process that infringes on rights and here we particularly see discussion of the much contested "boyfriend loophole", which could further convolute the process.


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