Firearms in the Family

This Article considers firearms prohibitions for domestic violence offenders, in light of recent Supreme Court decisions and the larger, national debate about gun control. Unlike other scholarship in the area, it confronts the costs of ratcheting up the scope and enforcement of such firearms bans and argues that the politicization of safety has come at the expense of a sound approach to gun control in the context of intimate-partner abuse. In doing so, it expands scholarly arguments against mandatory, one-size-fits-all criminal justice responses to domestic violence in a direction that other critics have been reluctant to go, perhaps because of a reflexive, cultural distaste for firearms. Both sides in the gun-control debate rely on starkly contrasting, gendered images: the helpless female victim in need of state protection, including strictly enforced gun laws, and the self-defending woman of the National Rifle Association\u27s Refuse to be a Victim campaign. Neither of these images accurately describes the position of many domestic violence victims whose partners have guns, and neither image responds effectively to the heterogeneity of conduct leading to a protection order or a misdemeanor domestic violence conviction that triggers federal and state firearms bans. The emphasis the National Rifle Association and other pro-gun organizations place on a woman\u27s right to carry a firearm in self-defense ignores the most common homicide risks women face, as well as structural inequalities that contribute to gender violence. Yet, significant problems afflict an uncritically anti-gun approach, too. First, gun-control advocates tend to ignore the reality of intimate-partner abuse--a reality in which some women fight back; some family livelihoods depend on jobs for which firearms are required; not all misdemeanants become murderers; and victims have valid reasons for wanting to keep their partners out of prison. Second, to the extent that proponents of strict gun regulation also exhibit distaste for racialized crime-control policies, they fail to acknowledge that zealously enforced gun laws aimed at preventing domestic violence would put more people--including more men and women from vulnerable communities of color--behind bars. The current framing of the argument for tougher firearms laws for abusers is derived from public health research on domestic violence that makes a reduction in intimate homicide rates its chief goal. Yet, since hundreds of thousands of domestic violence misdemeanants are thought to possess illegal guns, reformers should also consider the potential costs to victims and their families of a move to sweeping and rigorous enforcement. Changes in gun laws and their implementation in the context of intimate-partner abuse ought to cure over- and under-breadth problems; provide greater autonomy to abuse victims and protections for those who resist their batterers; reconsider the lack of an exemption to the misdemeanor ban for firearms required on-duty; and include a better mechanism for restoring gun rights to misdemeanants who have shown the capacity to avoid reoffending