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Friday
Jan292010

Legal Pad: Guns and Domestic Violence a Loaded Issue

I spend a good bit of time in the Anderson County Family Court.  I see a lot of interesting things there.  Most are sad.  However, a recent Order of Protection Hearing, though somewhat routine on the surface, was thought provoking.

I have been a prosecutor, in one form or another, for almost two decades now.  I’ve also been involved in my fair share of nasty divorce cases.  As such, I am vehemently opposed to domestic violence in all its forms.  I am also, however, an ardent supporter of Second Amendment rights.  The Second Amendment states that “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”  Our Courts have interpreted this provision to apply to a citizen’s right to keep and bear arms.  

Patrick Henry might help us shed some light on this.  A fiery young Virginia lawyer, and great figure of the American Revolution, he is famous for saying “Give me liberty or give me death.”  He was also a proponent of the right to bear arms.  He said  “Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are inevitably ruined.”  He also said “the great object is that every man be armed”.  He understood the need for a citizenry to bear arms.  Our roots as an armed nation go way back.  Without the shot heard round the world, we would all be British citizens today.  But I digress.  

The situation before the 21st century Family Court was something like this:  wife files for an Order of Protection, alleging that husband had shoved her and prevented her from leaving the residence.  She said that she hit her head during the scuffle.  She did not have any injuries and did not seek or need any medical attention.  She said she was afraid of her husband and that he had hit her before.  No allegations of any gun violence toward her or anyone else were made.  Both these parties appeared to reasonably nice people, with jobs, a nice home and good friends.  Upon questioning by the Court, the wife stated that she was afraid that her husband was going to shoot her.  She said that he had not threatened to shoot her, but she was still afraid of that.  Her husband, it turns out, is a hunter.  He has several firearms.  Husband’s lawyer raised the issue that the husband is a hunter.  Wife stated that “hunting season is over” and she did not think her husband should have a gun.  

The fourth page of the Family Court’s form order requires the Judge to answer three questions.  If the answers to those questions are “yes”, then the abuser cannot legally possess, transport, ship or receive any firearm or ammunition, pursuant to 18 U.S.C. Section 922.  All of this transpires in a hearing that takes about fifteen minutes.  By the end of this particular hearing, husband was prohibited from having his guns.  There are criminal penalties for the violation of this law.

So now what?  This Order of Protection will expire within six to twelve months of the order being issued.  What does the husband do with his guns right now?  If they are at home, he can’t go home.  He can’t put them in his car and take them somewhere else.  He can’t even ship them to someone else via UPS.  Is he obligated to call the Sheriff’s Office and tell them to come and get his likely very expensive hunting rifles?  If he does that, what happens to them when the Order of Protection expires?  Would the wife even want him to do that, as they are likely marital assets?  After all, a divorce is likely be filed soon.   Wife will want her fair share of the value of those guns.  Her attorney may want to leverage the guns against some asset the wife wants.  The possibilities are endless.  The questions many; the answers few.

The problem is that compounded by the statistics.  South Carolina Coalition Against Domestic Violence and Sexual Assault (SCCADVASA) reports that in 2003, 36 women in South Carolina were murdered by their domestic partner.  SC ranked sixth in the nation for men who murder women.  Domestic violence is the leading cause of injuries to women age 15 to 44, more common than auto-accidents, mugging, and cancer combined.  A woman is beaten by her boyfriend or husband every 12 seconds in the United States.   However, a relatively small percentage of these violent acts involve the use of firearms, according to the Violence Policy Center.  Yet, a woman is far more likely to be killed by her intimate partner.  So, while a woman is at a higher risk for being murdered by her intimate partner, the likelihood that she will be shot by him (as opposed to beaten or stabbed) is not significantly higher.  There does not seem to be a correlation between gun ownership and wife beating.   In the 40 states with concealed carry laws, other criminal activity has declined.  According to the NRA, gun ownership is at an all time high.  The nation’s violent crime rate has declined 40% since 1991.  States with right to carry laws have lower crime rates.  So there does seem to be a correlation between gun ownership and citizen safety, at least with regard to crimes committed on strangers.

The flip side of this is the argument that if an abuser is not in control of himself, he should not have a gun.  That makes sense.  If he can’t control his actions and has in fact injured his wife, can he be trusted to be responsible with that hunting rifle?  So the law takes the right to have the gun away.   But few are actually prosecuted for having the gun after an Order of Protection is entered.  So does this law work?  I don’t know.

But I return to my original conundrum.  What to do with the guns right now?  What happens when the Order of Protection expires?  By then, the couple has either filed for divorce or reconciled.  Reconciliations are extremely common among victims of domestic violence.  The reasons for that are not entirely clear to me.  Some of them were surely false reports to begin with.  Others seem to feel trapped by the relationship, with no other options.   But for whatever reason, they go home.  Some get killed, some do fine.  

So where do I stand on these issues?  A friend recently pointed out to me that anecdotal evidence is good for rallying the troops, but not so good as a basis for policy making.  Maybe he is right about that.  Maybe this should be addressed on a case by case basis.  Maybe the gun issue should get a separate, more in-depth hearing than a fifteen minute Order of Protection hearing.  I think that is probably the best answer.  I am against domestic violence.  I am a second amendment supporter.  I don’t think the two positions have to be inconsistent.  

I will leave you with two quotes:

“Are we at last brought to such humiliating and debasing degradation, that we cannot be trusted with arms for our defense?”  Patrick Henry.

“I’m afraid this man will kill me someday.”  Nicole Brown Simpson

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Reader Comments (2)

The issue is really the usual one. Politicians rarely logically think about the consequences of their vote. A judge may not either, but I don't want to paint the judiciary with a broad brush. Perhaps, you, me or a friend could pick them up from the home, before he goes back, and keep them for him. The judge could make his or her order state that the husband can have a few hours or days to make that happen.

January 30, 2010 | Unregistered CommenterV McDade

Hi, MJ. I'm a little confused about your assertion that the likelihood of a woman being shot to death by an intimate partner-- as opposed to beaten or stabbed-- is not significantly higher. All the data that I've seen very strongly suggests otherwise. As a matter of fact, access to guns is one of the factors that experts use in assessing the risk of an intimate partner resorting to homicide. According to the National Violence Policy Center (the resource that you alluded to), 52% of intimate partner deaths involved firearms. Do you really not consider this a significant number?

Also, I think it's a little concerning that someone in your field and of your stature doesn't understand the dynamics of abusve relationships, has no problem saying this publicly, and seems to have no intention of attemtping to understand. For instance, whether or not a perpetrator of domestic violence is in "control of himself" is not the issue, as they are typically very much in control of themselves. Domestic violence is not an anger problem, it is a control and entitlement problem (as in, they feel entitled to control their parter). You also seem to make light of the plight of the victims as the issue plays out in court. I think perhaps that if you took the time to avail yourself of the resources that you mention (such as the SCCADVASA) you wouldn't be quite so flippant and dismissive of the issue from the victim's perspective. It is very disappointing to see this attitude and level of ignorance from someone so involved in the family court system in our state. I respectfully encourage you to educate yourself so that more victims aren't potentially re-victimized by you in court.

January 20, 2012 | Unregistered CommenterMiranda

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