Will the Supreme Court Let These Domestic Abusers Get Their Guns Back?

Unpacking the danger of convicted domestic abusers lobbying for their gun rights.

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Update, June 27, 2016: The Supreme Court upheld the federal law that bars convicted domestic abusers from owning guns, ruling against Voisine and Armstrong. It's a huge win for victims of intimate partner violence in the U.S.

On November 23, 2009, state officials in Maine received an unusual tip from an anonymous caller: a bald eagle might have been shot near the timber-country outpost of Kingman. Arriving at the scene, game wardens found the lifeless bird tangled in a barren tree. It had been hanging there for over a month.

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Killing an endangered species that is also America's national symbol can be a felony punishable by fines of up to $250,000. As the tipster had suspected, the eagle found near Kingman had died of bullet wounds. The investigation narrowed around a central suspect: Stephen L. Voisine, then 48, a logger and a father of six living in the hardscrabble village of Wytopitlock, roughly half an hour from where the dead bird was found.

The officers who arrived at Voisine's home asked a question that comes up in any potential crime involving a gun: whether he was legally allowed to have the firearm allegedly used to commit the offense. A set of federal laws makes it illegal for certain people — primarily,convicted felons and convicted domestic abusers — to possess guns. If it's illegal to shoot a protected bird of prey, it's doubly illegal to do that with a gun you're not even supposed to own.

Voisine shouldn't have had guns. His criminal record included 14 convictions for assault and domestic violence spanning 28 years. When Voisine admitted that he shot the bald eagle with a rifle, he unwittingly confessed to owning a gun as a domestic abuser.

The primary statute prohibiting domestic abusers from owning guns is the Lautenberg Amendment, enacted by Congress in 1996. It's not a perfect seal against wrongdoing. Air gets through; criminals get guns. When a domestic abuser walks into a federally licensed dealer to buy a new weapon, he or she will be asked to go through a background check, and that background check is supposed to raise a red flag blocking the sale. But whether that actually happens depends on the right records getting submitted to government databases. (Most states rely on the FBI to run their checks, but some do them on their own.) Despite improvements in recent years, millions of those files never make it into the system. As of 2013, Voisine's home state of Maine had not submitted a single domestic-violence record to the federal gun-background-check system. Neither had 12 other states.

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There are two responses to hearing that a man like Voisine got his hands on a gun. One would be to ask: what would it take to strengthen the background-check system so that this never happens again? But a gun-rights advocate might pose a different question: should he have been barred from owning a gun in the first place? That's the question Voisine has been raising. He lost an appeal in the First Circuit Court in 2015, and now his legal fight has reached the Supreme Court. Voisine and another Maine man with a history of domestic abuse, William E. Armstrong III, have joined to challenge the gun-possession charges brought against them. The justices will hear the case on February 29. (This date was set before the death of Justice Antonin Scalia, which may alter the timing, and the ultimate decision).

Through their attorney, a federal public defender named Virginia Villa, Voisine and Armstrong are arguing that there's a hierarchy of abusive behavior, in which some actions ought to count as "domestic violence" while others should be seen as lesser crimes that don't earn that title — and therefore shouldn't trigger a gun ban. And it's that idea that makes this case about more than a dead bird.

Much of domestic-violence advocacy over the past 30 years has been successful in classifying more — not less — behavior under the umbrella of domestic violence, from withholding money and food to making empty but persistent (and therefore pernicious) threats. As those beliefs have taken hold, the criminal-justice system has come around to the view that men who condemn women to a life of fear — even if they never land a punch — can be guilty of domestic violence, full stop. Now Voisine and Armstrong and their lawyer are using a gun-rights case to ask the country's highest court to rethink that definition.

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The mid-1980s saw a real shift in the way America and its institutions regarded domestic violence. Law enforcement in particular did a complete 180: Arresting a man for abuse of his wife or partner used to be seen as an intervention in private life, but by 1984, states were changing their laws to make the arrests of abusers mandatory. In 1990, Maine established a Commission on Domestic Abuse. In 2002, the state's legislature passed a law allowing judges to temporarily bar suspected abusers from having firearms, offering protection to domestic-violence victims while domestic-violence complaints inched through the legal system.

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The year after Maine passed that law, Voisine was arrested for domestic violence. According to court documents provided by prosecutors in Maine, he was living with his girlfriend of seven years, Tina Farwell. After a night of drinking, he slapped her across the cheek so hard that she fell to the kitchen floor, where her daughter found her. Farwell called 911. She told the officers who came to the house that she wanted the abuse to stop, but she didn't want Voisine arrested — a refrain common among domestic-violence victims. In Maine, police must make an arrest when responding to a domestic-violence call, and despite Farwell's plea, they made no exception for Voisine. That night, the police took multiple rifles they found in Voisine's house and put them in the care of his sister. He was convicted of domestic violence against Farwell again in 2005.

As he built a record of crimes against his partners, Voisine ignored four different restraining orders issued to protect the women he was dating, according to court documents. Once, while prohibited from contacting an ex-wife, he entered her home.

Armstrong was similarly prone to brutality; a judge once described him as a man with a "history of violence against women." Court records show that on separate occasions, his wife, ex-girlfriends, and mother called the police on him for pushing, grabbing, and hitting them. During one of these altercations, officers seized a loaded handgun that was on his bed. In 2008, Armstrong provoked an argument with his wife that turned dangerously physical. She was in the middle of baking cookies and had her wedding ring off. When Armstrong saw she wasn't wearing the ring, he pushed her and slapped her on the leg.

In challenging their subsequent convictions for illegal gun possession, Voisine and Armstrong have asked judges to focus less on what they did to women and instead on why they did it. The men maintain that they never meant to hurt their partners but only got carried away in the heat of the moment. In legal terms, they are arguing that they behaved "recklessly," not "intentionally."

The men maintain that they never meant to hurt their partners but only got carried away in the heat of the moment.

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To courts, the distinction between those two words is important. It's why colliding with a pedestrian in your speeding car because you don't see them is not the same — and indeed, not as bad — as plotting to run over your ex. Law is full of all sorts of fine distinctions that seem overwrought to the outside world but form the basis of the profession: entire textbooks have been written about the exact meaning of the word fees. It's also on such semantics that important Supreme Court decisions are made.

Virginia Villa, the federal public defender assigned to represent Voisine and Armstrong, thinks that the criminal-justice system must maintain a line between intentional and reckless, even in cases of domestic violence. Villa does not see her clients as habitual domestic abusers, despite their records. She says, "I don't think it's fair to say that Voisine has a history of domestic violence. The question is, 'What is domestic violence?' I don't think it's just offensive touching that causes no serious injuries and has no intention to cause harm."

Villa's interest in raising the bar for what counts as abuse stems in part from a broader desire to keep people out of prisons, which she sees as hotbeds of violence that only exacerbate a defendant's aggressive tendencies. But in the context of her clients' date with the Supreme Court, her case is relatively simple: Voisine and Armstrong were merely being reckless when they struck their partners; reckless crimes must be treated differently than intentional crimes; and only intentional violence against a partner counts as domestic violence, for the purposes of the federal gun ban.

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If it were up to Villa, domestic-violence calls would not lead to automatic, precautionary arrests of the alleged abusers, as they do in Maine and many other states. She thinks from a feminist standpoint, such mandates take away agency from a woman to make her own decisions about her family or home situation: She may not want her partner arrested, and she should be the one to decide what she can or cannot tolerate in her relationship.

That view puts her even further at odds with victim-advocate groups, several of whom have filed friends-of-the-court briefs in the Voisine case. Their experience has taught them that while, yes, it makes perfect sense to separate careless driving from attempted vehicular manslaughter, you can't draw such distinctions when it comes to domestic violence, which is a fundamentally different kind of offense. Its injuries are often inconspicuous, and it's a crime that puts women in fear and jeopardy every day, not just at the moment of a climactic strike. An erratic slap or a careless push, compounded over the span of a volatile and manipulative relationship, qualifies as domestic violence every bit as much as a beating planned in advance.

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Joan Meier, a law professor at George Washington University who has also filed a brief with the Supreme Court in Voisine's case, calls any supposed difference between reckless and intentional domestic violence a legal fiction. A domestic-violence victim, she says, "doesn't have a good way of interpreting intent, but nor should she have to. If it's terrorizing to her, it's terrorizing." Meier would go even one step further: she thinks partners have a responsibility not to do scary things, especially if they're in a heated argument. Research has shown how a lack of emotional self-control can become physically dangerous: one study found that impulsiveness is linked to a propensity for future violence.

There's also evidence to suggest that the domestic-violence gun ban in the Lautenberg Amendment was intended to apply to partners who acted impulsively. Named after former senator Frank Lautenberg, the measure passed the Senate by a vote of 97 to two in 1996. At the time, a gun ban on felons already existed, but domestic abusers were rarely convicted of felonies, and there was no gun ban to capture the many domestic abusers who were convicted only of misdemeanors. Lautenberg's bill filled the gap by treating domestic violence as seriously as other crimes prohibiting a person from firearms possession.

Lautenberg expressed hope that the legislation would protect women from men who fly off the handle at their partners' expense:

This Amendment would close this dangerous loophole and keep guns away from violent individuals who threaten their own families, people who have shown that they cannot control themselves and prone to fits of violent rage directed, unbelievable enough, against their own loved ones. The Amendment says: Abuse your wife, lose your gun … no ifs, ands, or buts.

The Amendment says: Abuse your wife, lose your gun … no ifs, ands, or buts.

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Lautenberg and the 96 senators who voted with him were clueing in to the reality that domestic violence, unlike assault at the hands of a stranger, is an ongoing threat and one made dramatically more lethal when a gun is added to the mix. "If someone has access to a firearm, either through themselves or through a friend, the victim they abuse is more likely to be killed than the battered victim of an abuser who does not have a gun," says Christopher Maxwell, a criminologist at Michigan State University who has been studying domestic violence for more than two decades. When there's a gun in a house where domestic violence has occurred, the risk that one partner will be killed is 20 times higher than it would be if none of the residents were armed.

But a gun can also abet or intensify domestic violence even if a trigger is never pulled. At the heart of the crime is a pattern of control, for which a firearm can be a highly effective tool. The National Domestic Violence Hotline identifies "intimidation with guns" as its own form of violence. For Ruth Glenn, executive director of the National Coalition Against Domestic Violence, a gun says, "'I can kill you. It just takes a squeeze of my finger. I don't have to look through the kitchen drawer for a knife. I don't have to watch your eyes roll back as I strangle you.'"

Such implicit threats take a very real toll. Researchers at San Diego State University found that as domestic-violence victims have perceived higher degrees of danger, they experience exacerbated PTSD symptoms. Glenn thinks that victims in abusive relationships respond to the presence of guns in all the ways that people normally respond to trauma: they become hyper-vigilant, sleepless, depressed. They experience chronic headaches or stomachaches. "It can be even more fear-inducing when the abuser never picks up a gun," Glenn adds, "because the victim is always imagining when the abuser will."

Twenty years after the Lautenberg Amendment became law, the American legal system is still grappling with scenarios it did not address. The Voisine and Armstrong case is one of them.

While the law extends protection to an abuser's spouse or live-in girlfriend, it does not cover girlfriends who live apart from their boyfriends. But vindictive partners often have a way of intruding, regardless of whether they share an address: Dating partners and current spouses are killed in almost equal numbers, and dating partners are more likely than spouses to seek restraining orders. Only ten states have passed their own laws that make violence toward a dating partner the grounds for a gun ban. A few more have tried to follow in their footsteps but have met staunch resistance from the National Rifle Association. In May of last year, the NRA gutted a Louisiana lawmaker's gun bill for the protections it offered to dating partners and victims of stalking. The NRA categorized the measure as one that would hurt women, rather than help them, by potentially barring a woman's right to bear arms.

Meanwhile, the existing federal gun ban for domestic abusers is embattled on several fronts. Voisine and Armstrong's case is the third time the Lautenberg Amendment will be at issue in the Supreme Court in seven years. Meier thinks the Supreme Court decided to take this case to clarify once and for all that the law's gun ban applies to those who've committed impulsive violence against their partners. Another expert believes the justices could come down either way. "They took the case because there's a truly open legal issue," says Emily Sack, a professor of law at Roger Williams University. "On a deeper level, I think it is about the conception of domestic violence," she says. With Scalia's recent death, Sack thinks it's possible the court's decision could be a 4-4 tie. If that happened, the First Circuit Court's ruling would stand — which means that Voisine would lose his case.

If the court is looking for a new chance to weigh in on what counts as domestic abuse, the Voisine case does provide that opportunity. And even if the court doesn't find in favor of the men, the conception of domestic violence as a pattern of controlling behavior — the thrust of domestic-violence advocacy — has already been tested by the argument they're prepared to present in Washington this month. Victims and their allies, through the criminal-justice system, have been slowly building a barrier of safety. They asked that domestic violence be treated just like any other crime. When a man hit his wife, he got arrested. Then victims built higher: before he could kill her, his gun was taken away. But when such measures are seen to step on the rights of men, people like Voisine and Armstrong come to knock the bricks down, questioning the danger women feel and the sincerity of their fear. Sack summarizes their rationale. "Why should we get our guns taken away for this type of crime?" they ask, as though they hadn't committed one.

This piece was produced in partnership with The Trace.

Olivia Li is a lapsed law student and an editorial fellow at The Trace.

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