If the abuser has been convicted of a domestic violence misdemeanor or felony, can s/he keep or buy a gun?
No. Under federal law, if the abuser has been convicted of a felony or a domestic violence misdemeanor, s/he cannot have or buy a gun.1 If you’re not sure if the abuser has been convicted of a domestic violence misdemeanor, see What crimes are considered domestic violence misdemeanors?
Also, under MT state law, if the abuser assaults you with a firearm and is convicted of a crime for this assault, the court may order that the gun used in the assault be taken away and not used by the abuser.2
118 USC § 922(g)(9)
2 Mont. Code § 45-5-206(7)
How can I find out if the abuser has been convicted of a domestic violence misdemeanor or felony?
Domestic violence misdemeanor and felony records are open to the public, but they are not always easy to access. If you know the exact courthouse where the abuser may have been convicted, you can go to the courthouse and ask the clerk of court for access to those records.
Domestic violence misdemeanor and felony records are also kept in the National Instant Criminal Background Check System (NICS). However, no one other than law enforcement officials and licensed firearm sellers are allowed to search the NICS. Your local police department may be willing to search NICS for you if you ask, but they are not required to do so.
To read more about the NICS, please see the question What will happen if the abuser tries to purchase a gun?
What crimes are considered domestic violence misdemeanors?
A crime is considered a domestic violence misdemeanor under federal law if it:
- Can be defined as a misdemeanor under federal or state law; and
- Involves physical violence or force, or includes threats made with a deadly weapon; and
- Was committed by:
- a current or former spouse;
- a parent or guardian of the victim;
- a person with whom the victim shares a child;
- a person living with the victim as a spouse, parent or guardian; OR
- a person who has a similar relationship (listed above) with a spouse, parent or guardian of the victim.1
Note: The crime does not have to specifically mention “domestic violence” in order for it to be considered a domestic violence misdemeanor, and for the federal firearm law to apply.2 The relationship that the victim has with the offender is what determines whether or not the misdemeanor is a “domestic violence” misdemeanor.3
For example: If Bob is convicted of a misdemeanor assault against his wife, he may no longer have or buy a gun. If Bob is convicted of a misdemeanor assault against his neighbor, he may still be able to have or buy a gun.
Note: Montana is one of 10 states in which there are some misdemeanors that will not qualify as domestic violence misdemeanors, even if they seem to meet all of the requirements explained above.4 For more information about this complex topic, you can email us, call the National Center on Protection Orders and Full Faith & Credit at 1-800-903-0111 x 2 or talk to a lawyer who is familiar with gun laws and domestic violence – see our MT Finding a Lawyer page.
1 18 USC 921 (a) (33) (A)
2United States v. Kavoukian, 315 F. 3d 139 (2d. Cir. 2002); United States v. Meade, 175 F.3d 215 (1st Cir. 1999).
3United States v. Denis, 297 F.3d.25 (1st Cir. 2002.); United States v. Costigan, No. 009-B0H, 2000 U.S. Dist. (D. Me. June 16, 2000).
4 Although federal law prohibits owning or buying a gun if the abuser is convicted of a “domestic violence misdemeanor,” Montana is bound by current case law, which holds that misdemeanors that involve the “reckless use of force” will not meet the federal definition of domestic violence misdemeanors. See United States v. Nobriga, 474 F.3d 561, 564 (9th Cir. 2006)
What is the definition of a felony?
A felony under both federal law and Montana state law is a crime that is punishable by a prison sentence of more than one year.1
118 USC § 3559; Mont. Code § 45-2-101(23)
If a law enforcement officer or other government employee is convicted of a domestic violence misdemeanor, can s/he have or buy a gun?
No. Law enforcement officers and other government officials who have been convicted of a domestic violence misdemeanor or felony cannot have or buy guns for any purpose, including their official duties, according to federal law. 1
118 USC 925 (a) (1)