Gun Control

In Negotiations Over the 'Boyfriend Loophole,' Republicans Show More Concern for Due Process Than Democrats

Senators are mulling legislation that would expand the categories of people who are disqualified from owning guns.


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 At the same time, the ban as originally enacted was arguably underinclusive, since it did not cover violent misdemeanors such as assault and battery—including misdemeanor domestic violence that might signal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. If a woman does not fall into any of those categories but is nevertheless reasonably afraid of an angry boyfriend, he would still be allowed to buy or possess a firearm unless a court order or state law said otherwise. Critics of the current federal rule argue that it misses many potentially violent men, sometimes with deadly consequences.

Closing that "loophole" by expanding the ban to cover other kinds of "intimate partners" might seem straightforward. But "lawmakers must agree on what exactly makes someone an intimate partner," The New York Times notes. "Is it one date or several? Could an ex-boyfriend count?" NBC News reports that "Republicans want a clear and limited definition that only includes serious long-term relationships, whereas Democrats say it must be able to cover abuse in various dating circumstances for it to matter."

California exemplifies the latter approach. It defines an "intimate partner" to include current or former participants in a "dating relationship," meaning "frequent, intimate associations primarily characterized by the expectation of affection or sexual involvement independent of financial considerations." That definition does not specify how long the relationship must last or how "frequent" the "intimate associations" must be, and it leaves open the question of whose expectations or perceptions are decisive.

To some extent, California sidesteps such issues, since its gun-possession ban covers anyone convicted of assault, battery, or stalking, regardless of his relationship to the victim. That means someone who swings his fist during a barroom altercation—which qualifies as assault under California law, even if the fist does not connect and causes no injury—would lose his gun rights for 10 years if he is convicted. California also casts a wide net when it comes to protective orders, which can include, for example, orders obtained by employers, schools, and anyone who alleges harassment or stalking.

In addition to extending its ban beyond the convictions and restraining orders that trigger the federal disqualification, California applies looser standards. It authorizes courts to prohibit defendants from possessing firearms when they have been charged with a domestic violence misdemeanor, even before a conviction. Similarly, the subject of an ex parte restraining order loses his Second Amendment rights even before he has a chance to contest the allegations against him. Federal law, by contrast, requires a conviction or an order issued "after a hearing of which [the respondent] received actual notice, and at which such person had an opportunity to participate."

Sweeping disqualifications like California's aim to prevent violent people from obtaining firearms. But the looser the criteria for judging someone dangerous and the weaker the evidence required, the more likely it is that people will lose their constitutional rights even though they do not actually pose a threat—the same basic issue raised by "red flag" laws, which authorize gun confiscation orders that typically last for a year. In this context, Republicans are showing more concern about due process than Democrats, a reversal of the usual partisan pattern.

Senate Minority Whip John Thune (R–S.D.) told the Times "a lot of our members" are "concerned about making sure that there is robust due process." According to the Times, Republican senators "have raised questions about whether the provision should be retroactive, or whether someone barred from purchasing a gun under the measure, particularly because of a misdemeanor, should have an opportunity to appeal [i.e., seek restoration of his gun rights]—and how long they must wait before they can do so."

Expanding the federal ban would not be retroactive in the sense that people could be punished for possessing guns before the law took effect. But assuming the legislation resembles existing law, any gun owner with a disqualifying misdemeanor record would face up to 10 years in prison if he did not surrender or transfer his firearms, and that disqualification would last indefinitely.

The National Coalition Against Domestic Violence obfuscates the latter point. The organization insists that "closing the boyfriend loophole" would not "permanently restrict gun rights," because "adjudicated abusers can have their gun rights restored by having their records expunged or set aside, obtaining a pardon, or having their civil rights restored." Those are the same rarely met conditions that apply to people with felony records. In practical terms, unless the bill includes a time limit, we are talking about a lifetime ban, which is hard to justify even for violent offenders who go decades without committing new crimes, let alone for people whose offenses do not suggest they are prone to violence.

CNN says "the National Rifle Association and other pro-firearm groups have long opposed closing the 'boyfriend loophole,' casting it as an attempt by Democrats to advance a gun control agenda." Last week the NRA said it opposes "initiatives that override constitutional due process protections and efforts to deprive law-abiding citizens of their fundamental right to protect themselves and their loved ones into this or any other legislation."

Although CNN implies that only gun nuts would raise such concerns, they are appropriate whenever the government aims to promote public safety by taking away people's rights. While Republicans are hardly consistent defenders of due process, this debate shows the same is true of Democrats.