Peter Hamm

WASHINGTON (WOMENSENEWS)–The Supreme Court heard a case Monday that could decide the actual scope of a gun ban for batterers that–despite being a federal law–has never been applied to all 50 states.

If the justices side with the U.S. government’s challenge–which argues the law should not be restricted to just a portion of the states–batterers in every state and territory would be subject to the gun control ban.

If the court rejects the government’s reading of the law and limits the application of the law to those states with specific anti-domestic violence laws, safety advocates are apprehensive that thousands of abusers across the country will be erased from criminal lists, giving them new access to guns, said Peter Hamm, a spokesperson for the Brady Campaign to Prevent Gun Violence, a group in Washington, D.C., that lobbies for gun control.

Critics of the government’s challenge say if the lower court ruling is overturned it would infringe the constitutional right to possess firearms.

The government’s argument "boils down to an assertion that we cannot be trusted to responsibly exercise our civil liberties," Douglas Smith, a Chicago attorney, wrote in a friend-of-the-court brief on behalf of the Eagle Forum, the Alton, Ill., organization best known for its leader, Phyllis Schafly, and for leading a campaign against the Equal Rights Amendment.

"It kind of seems like a technical issue but it has really significant consequences," said Maya Raghu, a senior staff attorney at Legal Momentum.

A ruling is expected before the end of next June.

If the law’s jurisdiction is limited, more incidents of battery could end in death, according to Legal Momentum, an advocacy group in New York that lobbies on behalf of women’s legal rights. Domestic violence abusers are 12 times more likely to kill their victims if they have a gun, according to Legal Momentum, which signed a friend-of-the-court brief.

‘Problem for Women and Law Enforcers’

"It’s a serious problem to women and also to law enforcement officers, many of whom are killed" when responding to reports of domestic violence, Hamm from the Brady Campaign said.

At the foundation of the case is the federal Gun Control Act of 1968, which barred convicted felons from possessing firearms.

For decades that law was rarely applied to domestic violence cases because most of those cases were treated as misdemeanors rather than felonies.

But in 1996, Congress amended the law to apply to those convicted of misdemeanor crimes of domestic violence. The bill was known as the "Lautenberg Amendment," named after Sen. Frank Lautenberg, the New Jersey Democrat who championed it.

But the amendment did not entirely close the loophole because of a discrepancy in legal terminology among the states.

At the time the amendment passed, 17 states had specific laws criminalizing "domestic violence" misdemeanors.

The rest did not use that term.

Instead they categorized cases of domestic violence under broader terms such as assault, battery, kidnapping, rape or murder. That rendered the Lautenberg Amendment inapplicable in those states.

Question of Semantics

So the question before the court Monday was semantic: whether the Lautenberg Amendment could be read to apply to batterers across the country or just those in states with laws that specifically designate domestic violence.

At the center of the case is Randy Hayes of West Virginia, who pleaded guilty in 1994 to hitting his then-wife, Mary Ann, with whom he had a child, according to a summary of the case published by the American Bar Association. He was convicted of misdemeanor battery and sentenced to one year of probation.

Ten years later, Mary Ann–by that time divorced from Hayes–called police to report a second case of domestic violence, this time against Hayes’ girlfriend, Misty Oldaker, according to the summary.

Police arrived at Hayes’ home, where they found a rifle under Hayes’ bed. Hayes was subsequently indicted for violating the Lautenberg Amendment.

Hayes appealed, arguing that he had been found guilty of "battery" and not "domestic violence" as required by Lautenberg Amendment.

In 2007, the U.S. Court of Appeals for the Fourth District in Richmond, Va., agreed with Hayes and dismissed the case.

The government asked the Supreme Court for review and the court agreed to hear the case last March.

Questioning a ‘Dead-Letter’ Law

During Monday’s hearing, Justice Department attorney Nicole Saharsky argued that it is absurd to think Congress would enact a law that upon enactment would be "a dead-letter" in two-thirds of the states.

Representing Hayes, Troy Giatras, an attorney from Charleston, W.Va., argued that the limited scope of the law reflected a compromise for members of the House and Senate that paved the way to passage. A broad reading of the law would rewrite it and hand one side a victory that was never theirs, he said.

Justice Antonin Scalia seemed to agree, remarking at one point that the legislative language could have reflected the will of lawmakers who "wanted it to be a dead-letter" in certain states because they opposed it.

Regardless of congressional intent, Scalia suggested that the law is clear in its limited application. "I think that people are governed by the law that has passed, not the law that Congress intended to pass. I don’t care what Congress intended."

Saharsky argued that the law can also be read to back her point of view and engaged in a back-and-forth argument over grammar and syntax with several justices to make her case.

Justices Stephen Breyer, Ruth Bader Ginsburg and Samuel Alito seemed receptive.

"What sense would it make to say ‘in ‘State A’ there is a consequence but in ‘State B’ there isn’t,’ " Ginsburg said.

Raghu is concerned that a decision this past summer in District of Columbia v. Heller–in which the Supreme Court upheld individuals’ right to possess firearms under the Second Amendment of the Constitution–could influence the court in favor of Hayes. That case involved residents of Washington, D.C., who challenged the city’s handgun ban in court.

"Unfortunately for victims of domestic violence, the Supreme Court could decide that Hayes’ constitutional right to possess a gun is more important than a federal law keeping guns out of the hands of abusers," Raghu said.

Allison Stevens is Washington bureau chief at Women’s eNews.