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.

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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 At the same time, the ban as originally enacted was arguably underinclusive, since it did not cover violent misdemeanors such as assault and battery—including misdemeanor domestic violence that might signal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.

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  1. Both those proposals, and this article, are openly sexist.
    First close the girlfriend loophole, where any woman can accuse damn near any man who has ever been the same city with "domestic violence", and due process be damned.

    1. Thank you. And we need to include the millions of shemales out there. They could begin ovulating at any moment and get really cranky.

    2. Don’t stick it in crazy.

      1. way too limiting.

        1. It really depends on what kind of crazy. Or whether they know where you live.

          1. Buttigeg was discussing this last night.

            He was talking about his boyfriends hole. And something about Kentucky.

            Im not sure thay boy is all there.

    3. Exactly. When I went back to college I was lab partners with a guy who was a former police officer. His ex-wife filed a complaint against him for pointing his service weapon at her. When it was investigated it was found that at the time she says it happened he was testifying in Court in another State. The DA wouldn't back him because it was a political issue and his Union wouldn't for the same reason. "Other women might be afraid to come forward if we prosecuted her." As a result of the COMPLAINT he lost his certification from the State to be a Police Officer. That was why he was going to school. He was never charged, just the complaint was enough.

  2. Just for the record, it says "shall not be infringed".

    1. This is the real issue. Once we decided that an American citizens 2A right may be infringed for the "right" reason there was a constant line of trucks full of "right" reasons outside of congress infringing all of the rights of millions of American citizens. Neither R's nor D's actually believe that rights are rights, they believe they're just privileges and the only argument is over what's a "right" reason.

  3. "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."

    Not Constitutional due process though. Something something, innocent until proven guilty, something. Fuck the Democrats and fuck the GOP.

  4. Doesn't seem like much of a loophole. Seems like "similar to a spouse" should cover it. Otherwise it just becomes unreasonably broad.

    1. So buying and selling unsubsidized drugs violates the rights of no individual, yet is an "offense" such that goons with service pistols are brought in to coerce by deadly force while enjoying unqualified or absolute immunity from prosecution for wrongful multiple deaths. Today, failure to kowtow to pronoun chauvinism violates no rights yet many contrive to act "offended." So why not sent goons with service pistols to...

  5. It's like anything else; depending on the issue and on which side you fall, concerns like due process take a back row seat to the agenda.

    With guns, all kinds of boundaries are going to get pushed in order to impose limits on access to them. And of course about 90% of our media is all in.

    1. Abolishing government schools is the same as ending school shootings. There are none at private schools. Abolishing all State law infringing the right of the women to keep and bear arms is recommended now at the Libertariantranslator blog. Males, practically all of them either religious national socialists or lay international socialists were the perps in 124 of 127 shootings these past 40 years. So there may be a statistical case for barring whack jobs like Eric Greitens from obtaining guns. Even Lysander Spooner agreed to that.

  6. Rs better than Ds on Due Process, you say? This is indeed shocking - to anyone who has been in a coma the last 15 years

    1. Thats me !

      Captain Applesauce here.

      I must learn very well, Jill said I have a brain like a sponge !

    2. Hey it's Sullum. He stared at the screen for hours trembling before he could bring himself to push submit. I'm not saying he can ever redeem himself. He can't. I'm just saying we should stifle our laughter as he spirals ever downward into well deserved obscurity.

  7. >>As a bipartisan group of negotiators

    I'll donate money to the next drive if one of you writes a piece from the correct Ruling Class v. Peasant point of view

  8. Why is it ok to assault your neighbor but not your girlfriend?

    1. Or: if a crime isn't serious enough to be a felony, should a person permanently lose basic rights over it? I'm pretty sure actual assault is a felony in every state.

      1. I was accused of molesting a 12 year old girl. Got the charge reduced to assault with a Friendly Weapon.

        1. And I bet your 81 year old grandfather was charged for assault with a dead weapon.

      2. Nope. Misdemeanor assault exists pretty much everywhere. You think spitting in someone's face is a felony?

    2. Attention Republican National Socialists: many male foreigners are deported after the manly MAGA act of beating their wife, girlfriend or kids. Furthermore, NONE of them are Swiss, therefore none of them are allowed to keep, bear or even touch guns were they're from (but wife-beating is OK.) So Dems need only suggest that no foreign males be allowed near guns not pointed at them by ICE, and Real Republican National Socialists™ will back it.

  9. It's the "queer for guns" you twit, not "due process".

    What a clown.

    1. You’re a clown. Probably a juggalo, but more retarded.

  10. I wonder how one would prove intimate or sexual relationships, exactly. Does this mean every woman should begin filming all her sexual encounters? Or are we just going to take every woman at their word because their gender precludes lying? Can a male-to-female transsexuals lie, or does swapping a pronoun make them equally truthful?

    Sounds to me like Congress wants to see some steamy videos to get them nice and hard before revoking some rights, which undoubtedly will bring them to climax.

  11. The law does not go far enough.

    These people:

    - should be prohibited from practicing law or medicine.
    - should be prohibited from teaching at a credentialed K-12 educational institution.
    - should be required to wear a distinctive badge on the left sleeve when out in public.

    1. Should probably tattoo Poor Impulse Control on their foreheads, too.

    2. Note to foreign readers: "These people" includes anyone who has ever passed anyone a joint. Federal law defines these people as dope pushers the instant the joint is even offered. It also means anyone who sold someone a glass of light beer before December 1933. It matters not they weren't caught, tried or convicted any more than it matters today if a cop claims to have smelled weed before robbing you. Libertariantranslator

      1. Put that in the LP platform and let our candidates get 3% of the vote by defending individual rights for BOTH genders of voters. The Kleptocracy will find a way to change the law to attract those votes, even if it means repealing cruel, barbarous, superstitious or suicidal legislation.

  12. If it's coming out of congress "the resulting legislation will rely on nebulous definitions and lack appropriate due process safeguards."

    When the fuck doesn't it?

  13. What I don't see is why there cannot be a compromise. First we should revise the felony rule so felons convicted of non violet crimes and having no evidence of themselves having a violet nature, should not be banded from every owing a firearm. Alternatively exhibiting a violet nature through a misdemeanors or felony should result in a loss of the right to firearm. It should not matter if you are married or just had a one night stand. People who exhibit a violet nature are giving a warning sign that we should not ignore.

    1. That or make them police officers.

    2. I agree that nonviolent felons shouldn't suffer the loss of their rights. On the other hand, misdemeanors often are subject to a lower burden or evidence than a felony case would. Furthermore, in some jurisdictions something as simple as touching someone's arm in a nonviolent manner is considered battery. There are lots of instances I can think of where innocent behavior can be misinterpreted either unintentionally or intentionally by a vindictive lover to punish their ex. I'd rather people get a full felony conviction with a strict burden of evidence on the accuser for an actual act of violence (where real damage is incurred) before they lose their rights rather than a low-burden-of-evidence misdemeanor for an intentionally misinterpreted love tap.

  14. Democrats plan to do away with due process if they can win again (any way they can).
    Dictatorships never care about due process.

  15. Yep. Because violent people will of course obey the laws saying that they cannot possess firearms. That's why there are so few firearms murders in D.C., Chicago, Baltimore, etc.

  16. Stand your ground Republicans.... For crap sake; UR this Nations only hope at this point.

  17. I didn't see anywhere in the article where it said boyfriends would be excluded from a red flag proceeding. How are they being denied due process?

    1. I know for a fact that no or almost no girlfriends mass-murder kiddies or beat their husbands bloody enough to be deported. I make a case for all girls from adolescence up be encouraged to buy as many weapons and as much tactical gear as possible, including silencers, full auto pistols, chemical warfare agents and body armor. As long as 98 of 100 collective shooters are males, and males are handed immunity from antiabortion laws, the fairness of such a measure can be sold to juries and voters. Non-socks can comment on the blog.

      1. Yes, you are almost there. Women kill more humans than men by a large margin every year with their abortion murders.

  18. Would that be her actual boyfriend, the one she's monkeybranching on the side, or all the others sitting on the tree branches that she has waiting for a chance?

  19. "Republicans are showing more concern about due process than Democrats, a reversal of the usual partisan pattern."

    On the contrary, 2nd Amendment issues are often an area where Republicans are more concerned about due process than Dems.

    Lots of Dems are equally comfortable as Republicans in supporting the FISA process and the Patriot act as well. Dems have also shown zero concern about any due process violations for nonviolent Jan 6 defendants. The Dems are not on some great lofty pedestal here when it comes to due process. For every police-state Neocon like Dan Crenshaw, there's some slightly more intersectional police-state hack like Eric Swalwell or Reuben Gallego out there. The reality is that the politicians who care about due process are in the minority among both major parties.

    1. Let's not forget the Title IX kangaroo courts.

      1. Good point

  20. GOP cares more about Due Process than Democrats. Wow, I wouldn't have ever guessed that. It's not like Democrats just a few years ago decided any man who looks at a woman wrong on a college campus should be expelled from school without ever facing their accuser or shown any evidence of their supposed wrong doing. Democrats have no respect for any rights: protected classes trump human or constitutional rights.

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