Domestic Violence, Due Process and Gun-Rights



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By Rob Morse, August 17th 2013
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Domestic violence makes me think of battered women. It is that, and it is more. Sometimes the real victim is abused twice; once by their abuser and once by the law. We need the full due process of the legal system to protect the innocent victim of domestic abuse.

We want the law to make things better. At worst we want the law to do no harm to the innocent party. That simple requirement makes good law hard to find. The innocent person can be savaged by average laws in the hands of corrupt prosecutors and clever accusers. We've seen this time and again with gun laws. Let me show you the evil hidden in poorly crafted laws that take guns from those "accused" of domestic violence.

A good feeling gone wrong - We all have the urge to protect the innocent and take guns away from domestic abusers. Those same laws that originally protected married couples have now been extended to boyfriends and girlfriends. Yes, you could have your gun rights taken from you for life if your date says you threatened her.. or threatened him. I include both men and women because both men and women are abusive in almost equal numbers. Except for sexual coercion, men and women perpetrate physical and non-physical forms of abuse at comparable rates and here.

Living with a broken law - Here is an important distinction between domestic violence and other crimes; you don't lose your gun rights because you threatened your partner. You loose your rights if your partner merely accuses you of threatening them. The law leans so far to protect the possible victim that it only takes an accusation for the power of the state to punish you. Your accusing partner might be angry that you grabbed their car keys while they were drunk, but your accuser may never have to offer evidence or even a sworn affidavit testifying to your "abusive" conduct.

Abusing the law - Why would someone lie about something as serious as physical assault? The usual reasons are enough. Does your partner want a new boyfriend? Does your ex-partner resent your breakup and want the children? Does your roommate want the apartment to themselves? I know you don't think that way, but sometimes good people succumb to temptation. Think about this the next time a visiting roommate says, "Pretty nice place you have here." Bad laws leave us vulnerable to lawfare.

The asymmetry of accusation - Remember that all it takes is an accusation rather than the legal standard of reasonable doubt, the civil standard of preponderance of evidence, or solid proof and a jury's decision. Now you have a legal accusation against you, and I've never read of a criminal penalty being imposed for false accusations of domestic violence. I looked. It might happen, but I couldn't find examples of punishment. False accusation cost the accuser nothing. That is bad law.

Turning the innocent into victims - Say you've been accused and now your guns are gone. Maybe you'll lose your job as well unless you got rid of your guns very carefully. I know lawyers who suddenly acquired an entire gun collection in a single evening. Yes, people with security clearances or a job around money can lose their job if the violence charge gets compounded by a firearms violation. Did you miss a single deformed bullet as you cleaned out your stuff? Did you leave behind a recycled shell casing hidden away in a bucket in the basement? Don't expect justice. With the help of a divorce lawyer, a punitive judge sees those incidental articles as ammunition components.

Using the law as a weapon - There are legitimate cases of domestic abuse. There are also abuses of the system. We don't want the law to inadvertently arm and empower the abuser. The first person to make the claim often has the assumption of innocence. That fact can be used by a perpetrator to disarm their victim. The abuser can disarm their victim both physically and psychologically by manipulating gun laws. Anyone can claim to be a victim of domestic violence because of our low standards of evidence. When it comes to firearms, we don't want to remove a legitimate tool of self-defense and so give the abuser another weapon to use against the abused.

Think like a criminal - Criminals don't fear the criminal justice system. Dedicated criminals plan ways to manipulate others using the law as a weapon. You would probably be forced from your home once you've been accused of domestic violence. Few of us have another place to live and are instantly ready to move. That leaves your computer, your money, your valuables, your personal and financial records, your guns and perhaps your children in someone else's possession. That is a very vulnerable place to be. All the accuser has to do is be the first one on the phone to the police and suddenly they have access to your valuables and your identity.

Making things worse - A calculating abuser uses the criminal justice system to overwhelm his intended victim. An abuser can force his girlfriend to leave her home and perhaps her children by accusing her of assault. Now she loses access to any firearms for self-defense. She could also loose her bank account too, now that the manipulating accuser has access to her records.

The law is a mighty club - You might think this doesn't apply to you, but I ask you to think again. Half of adults have ex-husbands and ex-wives who might be manipulative. Imagine your wife has a record of military service, and someone wants her, or you, out of the way at work. Your gun collection and a charge of violence against her is all it takes to disarm and preoccupy both of you.

Unintended consequences - Do we really want to disarm a woman who is a victim of domestic violence? We need due process to carefully separate the real perpetrators from those victims who desperately need the tools of self-defense. Yes, our heart goes out to suffering victims of domestic violence. That is different than disarming everyone who is accused. We can't protect the innocent when they are automatically disarmed by a simple, and perhaps unfounded, accusation. Lives will be ruined if the courts get this one wrong.

Let there be justice - We need to treat domestic violence as a serious criminal charge and require proof and due process before we hand out punishment. A simple cell phone recording has made proof easier than ever to produce in court. We do not want swift enforcement to make things worse. Licensed concealed carry permit holders are extraordinarily peaceful and law abiding.. even more so than police. Most permit holders bought firearms for the very purpose of protecting those they love.

Firearms laws that disarm innocent gun owners can easily aid abusers. Well written laws should not harm the innocent.


Rob, and IANAL.

What say you?

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