Firearms in the Family

Firearms in the Family CAROLYN B. RAMSEY* This Article considers firearms prohibitions for domestic violence offenders, in light of recent Supreme Court decisions and the larger, national debate about gun control. Unlike other scholarship in the area, it confronts the costs of ratcheting up the scope and enforcement of such firearms bans and argues that the politicization of safety has come at the expense of a sound approach to gun control in the context of intimate-partner abuse. In doing so, it expands scholarly arguments against mandatory, one-size-fits-all criminal justice responses to domestic violence in a direction that other critics have been reluctant to go, perhaps because of a reflexive, cultural distaste for firearms. Both sides in the gun-control debate rely on starkly contrasting, gendered images: the helpless female victim in need of state protection, including strictly enforced gun laws, and the self-defending woman of the National Rifle Association’s “Refuse to be a Victim” campaign. Neither of these images accurately describes the position of many domestic violence victims whose partners have guns, and neither image responds effectively to the heterogeneity of conduct leading to a protection order or a misdemeanor domestic violence conviction that triggers federal and state firearms bans. The emphasis the National Rifle Association and other pro-gun organizations place on a woman’s right to carry a firearm in self-defense ignores the most common homicide risks women face, as well as structural inequalities that contribute to gender violence. Yet, significant problems afflict an uncritically anti-gun approach, too. First, gun-control advocates tend to ignore the reality of intimate-partner abuse—a reality in which some women fight back; some family livelihoods depend on jobs for which firearms are required; not all misdemeanants become murderers; and victims have valid reasons for wanting to keep their partners out of prison. Second, to the extent that proponents of strict gun regulation also exhibit distaste for racialized crime-control policies, they fail to acknowledge that zealously enforced gun laws aimed at preventing * Professor of Law, University of Colorado School of Law. Thanks to the U.C. Irvine Initiative to End Family Violence, the American Historical Association, the Law and Society Association, and the Colorado Law Faculty Scholarship Retreat for opportunities to present early drafts of this Article in conference settings. I especially appreciated targeted suggestions from Aya Gruber, Ben Levin, Elizabeth MacDowell, Eugene Volokh, and Ahmed White. My Article also benefitted from research assistance by Erika Kuhl, Rosemary Loehr, Matthew Simonsen, Jennifer Sisk, and Kate Watt. As always, Jane Thompson, Matthew Zafiratos, and others from the University of Colorado’s William A. Wise Law Library staff helped immensely with unflagging good spirits throughout my research process. 1258 OHIO STATE LAW JOURNAL [Vol. 78:6 domestic violence would put more people—including more men and women from vulnerable communities of color—behind bars. The current framing of the argument for tougher firearms laws for abusers is derived from public health research on domestic violence that makes a reduction in intimate homicide rates its chief goal. Yet, since hundreds of thousands of domestic violence misdemeanants are thought to possess illegal guns, reformers should also consider the potential costs to victims and their families of a move to sweeping and rigorous enforcement. Changes in gun laws and their implementation in the context of intimate-partner abuse ought to cure over- and under- breadth problems; provide greater autonomy to abuse victims and protections for those who resist their batterers; reconsider the lack of an exemption to the misdemeanor ban for firearms required on-duty; and include a better mechanism for restoring gun rights to misdemeanants who have shown the capacity to avoid reoffending. TABLE OF CONTENTS I. INTRODUCTION ..........................................................................1259 II. THE SELF-DEFENDING WOMAN IN GUN-RIGHTS RHETORIC AND GUN MARKETING ...............................................................1267 A Guns as an Equalizer in Gender Violence..........................1268 B. Efforts to Increase the Appeal of Guns to Women..............1271 C. Criticizing the Use of Gender in Pro-Gun Rhetoric...........1273 1. Guns and Intimate-Partner Violence............................1274 2. The Myth of Guns as the Great Equalizer ....................1277 a. Gender Disparities in the Perpetration of Intimate-Partner Gun Violence...............................1277 b. Structural Inequalities ............................................1280 III. THE PARADIGM OF THE BATTERER IN ARGUMENTS FOR DOMESTIC VIOLENCE GUN CONTROL ........................................1288 A. The Vulnerable, Unarmed Female Victim ..........................1292 1. The Myth that Women Don’t Fight Back ......................1292 2. The Role of Victim Preferences ....................................1295 B. Gun Possession and the Stereotype of the Inevitably Homicidal, Male Abuser .....................................................1298 1. The Batterer Paradigm in Constitutional Analysis.......1298 2. The Batterer Paradigm and the Scope of Gun Prohibitions ......................................................................................1303 a. Over-Inclusiveness: Misdemeanants Who Are Unlikely to Kill .................................................1305 b. Under-Inclusiveness: Excluded Relationships........1311 2017] FIREARMS IN THE FAMILY 1259 IV. WHAT WORKS,WHAT DOESN’T:THE COSTS OF POORLY- CONCEIVED DOMESTIC VIOLENCE GUN-CONTROL LAWS .........1314 A. The Limited Success of DVRO Gun Prohibitions ...............1314 B. The Shortcomings of Misdemeanor Gun Bans ...................1329 1. Enforcement Woes and Backlash..................................1330 2. A Vicious Circle? Socioeconomic Impacts, Retaliation, and Recidivism ..........................................1332 3. The Problem of Permanence.........................................1336 C. The Potential Impact of More Rigorous Enforcement on Vulnerable, Minority Communities................................1340 V. TOWARDS REASONABLE GUN CONTROL FOR DOMESTIC VIOLENCE OFFENDERS...............................................................1342 I. INTRODUCTION The competing images of women deployed in the gun-control debate juxtapose the gun-wielding, female survivor of an attack against the vulnerable victim who ostensibly needs the state to confiscate her homicidal abuser’s weapons. However, the real relationship of America’s firearms culture to the problem of gender violence lies somewhere between these feverish extremes. Gun-control in the context of domestic abuse ought to respond to a variety of concerns, not solely the aim of reducing homicide rates. According to some researchers, battered women are five times more likely to be killed by an abusive intimate partner if the abuser possesses a firearm.1 However, despite the Supreme Court’s willingness to endorse a broad definition of domestic violence2 and federal appellate courts’ near unanimity in rejecting Second Amendment challenges to domestic violence gun laws,3 strict prohibitions on paper do not guarantee women’s safety. Even if governmental actors aggressively enforced 18 U.S.C. § 922(g)(8) and § 922(g)(9) and corresponding state laws, which they 1 See Jacquelyn C. Campbell et al., Risk Factors for Femicide in Abusive Relationships: Results from a Multisite Case Control Study, 93 AM.J.PUB.HEALTH 1089, 1092 (2003). 2 See Voisine v. United States, 136 S. Ct. 2272, 2282 (2016) (holding that petitioners’ possession of guns following conviction under a Maine misdemeanor assault statute that encompassed reckless conduct violated 18 U.S.C. § 922(g)(9)). 3 See infra Part III.B.1. At least a half-dozen circuits have concluded that § 922(g)(9) does not violate the Second Amendment. See United States v. Chovan, 735 F.3d 1127 (9th Cir. 2013); United States v. Staten, 666 F.3d 154 (4th Cir. 2011);United States v. Booker, 644 F.3d 12 (1st Cir. 2011); United States v. Skoien, 614 F.3d 638 (7th Cir. 2010) (en banc); United States v. White, 593 F.3d 1199 (11th Cir. 2010); In re United States, 578 F.3d 1195 (10th Cir. 2009) (unpublished order appended to published dissent) (granting petition for writ of mandamus directing district court not to instruct jury that § 922(g)(9) is inapplicable to persons who do not pose a risk of violence). 1260 OHIO STATE LAW JOURNAL [Vol. 78:6 remain reluctant to do,4 stripping all domestic violence offenders of their guns for conduct that includes merely reckless infliction of injury5 might have a variety of negative outcomes. It might chill the reporting of abuse; exacerbate recidivism; lead to unemployment, a known contributor to intimate femicide,6 for abusers whose jobs require them to carry a gun; and leave victims without weapons for self-defense. But a simplistic, politically-motivated call for women to arm themselves is not the answer either. For many Americans, the gun debate is not really about guns at all, but a culture war between two competing visions of self and nation: a masculine, individualistic, self-reliant, arms-bearing America and an urbane society grounded in civic solidarity and abhorrence of violence, sexism, and racism.7 The gun-control facet of domestic violence policy has roots in the second social model, but it also displays a tough-on-crime

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