Is there really a 'boyfriend loophole,' or is Biden full of it?

President Biden has several times this year spoken of the necessity of closing the so-called "boyfriend loophole," by which domestic partners who have been convicted of domestic relations law violations are nevertheless still able to buy and acquire firearms.

He spoke to this as recently as June 24, when he signed into law the so-called "Bipartisan Safer Communities Act," which is the latest federal act of Congress designed to curb gun violence.

In this short speech, which Biden gave on the (South?) lawn of the White House, almost literally as he was getting ready to dash out the door to get on board Air Force 1 to take him to Europe and the G7 and NATO conferences, Biden had this to say about the "boyfriend loophole."

And it finally closes what is known as the "boyfriend loophole."  So if you assault your boyfriend or girlfriend, you can't buy a gun or own a gun. 

All of this is a great surprise to me.  Almost 30 years ago, I was involved in a bitter and savagely adversarial divorce proceeding.  Naturally, I was accused of domestic violence.  And immediately upon getting served with the resulting restraining order, I was ordered to surrender all my firearms forthwith.  (It would be self-serving of me here to declare my innocence of the accusation, so I'll not venture to comment on that one way or another, save to note that upon expiration of the restraining order, my full rights to possess firearms in The People's Republic of Massachusetts were fully restored.)

As a result of my legal predicament, I imposed upon myself a crash course in the law, and among other things, I learned that in The People's Commonwealth, all persons who have ever been convicted of any domestic violence law violation — nationwide — are permanently barred from firearms possession.  Massachusetts flatly will not license such persons.

This is all thanks to the Lautenberg Amendment of 1996 — specifically Title 18, United States Code, Section 922(g)(9).  This amendment actually took an already old idea one step farther.  According to this DoJ archive site, "[t]he 1968 Gun Control Act and subsequent amendments codified at 18 U.S.C. § 921 et seq. prohibit anyone convicted of a felony and anyone subject to a domestic violence protective order from possessing a firearm" (emphasis added). 

There is not much one — especially if you're a man — can do about it.  Restraining orders are routinely given out upon request, and no probable cause is necessary to justify the request.

But the Lautenberg Amendment took the basic idea farther "by banning the possession of firearms by individuals convicted of a misdemeanor crime of domestic violence."

Furthermore, Lautenberg made the lifelong bans on firearms possession retroactive. 

Date of Previous Conviction: The prohibition applies to persons convicted of such misdemeanors at any time, even if the conviction occurred prior to the new law's effective date, September 30, 1996.

I remember, at the time, that there were a number of police officers who discovered to their horror that they'd suddenly been disarmed.  Before Lautenberg went into effect, they'd been accused of domestic violence, and rather than fight the case and maybe incur a felony conviction, they accepted an "easy" plea bargain down to a misdemeanor, just to get on with their careers and lives.  Suddenly, they found they were out of jobs, because what is a police officer who cannot carry a firearm?

So what is Brandon talking about when he claims there is — or was — a "boyfriend loophole" which enables "boyfriends" convicted of misdemeanor domestic violence to retain legal possession of firearms?  I know that that has been flatly impossible in Massachusetts for many, many years.

Is he just lying again, as he so often does?

Well, yes and no.  The answer is cloudy and complicated.

According to the Twyford Law Office site, "[d]espite prohibiting the possession of firearms, federal law does not actually ensure that such laws are enforced, with no policies in place for the relinquishment of guns[.] ... Although this direction is generally left to the states, just 16 states have laws that require the relinquishment of firearms and ammunition if the offender is convicted of a domestic violence crime."

In other words, while Lautenberg does define a national standard, by itself, Lautenberg is toothless, because it leaves enforcement up to the states, and each state defines domestic violence and domestic relations and how to police those things differently.  For those who are interested, the Twyford Law site has a table giving the state of the law in all 50 states.

I don't know how Brandon's new law improves on the Lautenberg Amendment.  It's hard to believe that it will use federal marshals or other law enforcement officers to enforce its law against those convicted of state-level domestic violence misdemeanors.  But if it leaves enforcement to the states, as it has done for almost the past 30 years, how is it any kind of "improvement"?

Brandon's law changes nothing in many states.  For that reason, and if I were Glenn Kessler, the Washington Post Fact-Checker, I'd give Brandon's claim two or three out of four possible Pinocchios.

Image: Gage Skidmore via Flickr, CC BY-SA 2.0.

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