Gun Rights after Domestic Violence | Voisine v. United States

Voisine v. United States

The Supreme Court of the United State handed down Voisine v. United States  in June 2016. The decision addressed the gun ownership and possession rights of individuals who have been convicted of domestic violence charges. In 2014, the Supreme Court handed down United States v. Castleman in which the Court ruled that a “knowing” or “intentional” assault qualifies as a “misdemeanor crime of domestic violence” under 18 USC 922(g)(9), but left open whether a “reckless” assault qualifies as such a crime. The decision in Voisine answered that question.

The Lautenberg Amendment

In Voisine, the Supreme Court addressed the constitutionality of the Lautenberg Amendment to the Gun Control Act. The Lautenberg Amendment affected the ability of individuals convicted of domestic violence misdemeanors such that they are treated the same as felons in being restricted from shipping, transporting, possessing, or receiving firearms or ammunition.

Voisine v. United States

18 USC 922(g)(9) prohibits any person convicted of a “misdemeanor crime of domestic violence” from possessing any gun or ammunition with a connection to interstate commerce. 18 USC 922(a)(33)(A) defined “misdemeanor crime of domestic violence” to include a misdemeanor under federal, state, or tribal law, committed by a person with a specified domestic relationship with the victim that “has, as an element, the use or attempted use of physical force”

The statutory text and background led the Court to conclude that a reckless domestic assault qualifies as a “misdemeanor crime of domestic violence” under 922(g)(9).

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First, an offense counts as a “misdemeanor crime of domestic violence” only if it has, as an element, the “use” of force. In interpreting the text of the statute, the Court noted that the definition of “use” is the “act of employing” something. Based on that common interpretation, the force involved in a qualifying 922(a)(33)(A) assault must be volitional and that an involuntary motion, even a powerful one, is not usually described as an active employment of force. However, the Court articulated that the word “use” does not require that the person applying force have the purpose or practical certainty that it will cause harm, as compared with the understanding that it is substantially likely to do so. Therefore, they held that a person who assaults another recklessly “uses” force, no less than one who carries out that same action knowingly or intentionally.

Second, in reviewing the legislative background, the purpose of 922(g)(9) was to bar domestic abusers convicted of garden-variety assault or battery misdemeanors, just like those convicted of felonies, from owning guns. The Court noted that 35 jurisdictions defined a 922(g)(9) misdemeanor offense to include the reckless infliction of bodily harm and construing the statute to exclude crimes committed recklessly would substantially undermine the purpose of the provision. Additionally, because the Model Penal Code had taken the position that the mens rea of recklessness should generally suffice to establish criminal liability and states incorporated the Model Penal Code view into misdemeanor assault and battery statutes, Congress must have known it was sweeping in some persons who had engaged in reckless conduct.

In Texas, an Assault Bodily Injury charge may be alleged as an intentional, knowing, or reckless act. Anyone charged with a family violence or domestic violence charge in Texas should fully understand the repercussions of a plea before pleading to an assaultive charge against a family member. To hire our attorneys to represent you against a family violence charge, call us at (817) 203-2220.


Benson Varghese

Managing Partner at Varghese Summersett PLLC
Benson Varghese is the founder and Managing Partner of Varghese Summersett PLLC. He is a prolific writer and has authored hundreds of articles about criminal law in Texas and at the Federal level. His articles have been featured in the Wall Street Journal, Above the Law, and have been selected as Top Blogs by the State Bar of Texas. He was named the Young Lawyer of the Year in 2019 by the Tarrant County Bar Association. Benson led the firm to become one of the 500 fastest growing businesses in the United States by Inc 500 Magazine in 2018. In the same year, the firm was named the Best Law Firm in Fort Worth by the Fort Worth Star-Telegram. The lawyers at Varghese Summersett PLLC exclusively handle criminal defense matters.
Benson Varghese