The imprecise draftsmanship of the Lautenberg Amendment and the resulting problems for the judiciary.

In 1996, Congress passed the Domestic Violence Offender Gun Ban ("Lautenberg Amendment"), a controversial amendment to the Gun Control Act (1) that makes it unlawful for individuals previously convicted of a misdemeanor domestic violence offense to possess a firearm. (2) Legislative history shows that Congress intended to address state criminal laws that prosecute domestic violence as only a misdemeanor, which allows offenders to continue to possess firearms. (3)

Statutory interpretation is the only remaining avenue to challenge the Lautenberg Amendment and the courts' improper interpretation of its meaning. In the rush of the legislative process, Congress hastily enacted Senator Lautenberg's amendment, (4) and this sheds light on the resulting problems for the judiciary, which is forced to interpret unclear statutory language. Congress has not corrected the Lautenberg Amendment, enacted over a decade ago. Further, numerous constitutional challenges to the Lautenberg Amendment have already failed. (5)

This Article considers the circuit courts' use of statutory interpretation to broaden one phrase, the "use of physical force," (6) and to narrow another phrase, "as an element." (7) The circuit courts have selectively pulled certain arrows from the quiver, while ignoring others, in order to "bolster" (8) a conclusion that leads to short-term results--a retroactive, broad firearm prohibition. Yet there are other tools of statutory construction that direct the judiciary to read the word "violence" into the "use of physical force" and to require the predicate state statute to contain both physical force and a domestic relationship as elements. (9) This alternate construction would limit the amendment's scope to offenders charged with committing violent physical force against a domestic partner, in violation of a statute that contains both as elements.

Although this interpretation has the consequence of narrowing the scope of the firearm prohibition, it is one that the courts can be expected to follow. The judiciary must determine the meaning of a statute, (10) and its decision-making is a systematic process that cannot be circumvented solely due to policy concerns. (11) Further, the constitutional principle of separation of powers designates the legislature as the appropriate branch to modify statutory language on the basis of policy implications. If advocates against domestic violence want to avoid such a result, then they should mobilize for legislative reform. For the courts, it is better to err on the side of a narrow interpretation. Although this will not resolve every issue that arises under the Lautenberg Amendment, which will remain irreparably unfair and inconsistent in application, it will narrow the scope until Congress clarifies the text or repeals the statute.

Part I examines the enactment of the Lautenberg Amendment and the textual problems that arise from the imprecise draftsmanship. It also sets the scene for questioning the circuit courts' reliance on legislative history and on one senator's misconstrued statements as representative of "Congress's intent." The Eleventh Circuit Court's decision in United States v. Griffith establishes a backdrop to examine the two textual provisions, the use of physical force and the domestic relationship requirement, and the resulting problems for the judiciary.

Part II discusses the circuit court split regarding what constitutes "physical force," in order to bring a state predicate offense within the scope of the federal firearm prohibition. This Article examines the mechanisms that the Eleventh, First, and Eighth Circuit Courts used to justify holding that any physical contact constitutes "physical force." (12) It then considers the interpretation by the Fifth, Seventh, and Ninth Circuit Courts, (13) which reads "violent" into the "use of physical force," and argues that this narrow interpretation is a common-sense approach. It is necessary to distinguish physical contact from physical force, (14) and it is supported by a neighboring statute (15) and pertinent legislative history, (16) which the circuit courts have ignored. (17)

Part III challenges the circuit courts' nearly-unanimous interpretation of the domestic relationship provision in the Lautenberg Amendment. (18) It argues that the statutory language requires the predicate state offense to have a domestic relationship as an element, in order to bring the defendant's assault or battery conviction within the scope of the federal firearm ban. This is supported by the plain language of the amendment and the courts' misplaced justification based on the need for uniformity. (19) Further, the circuit courts' reliance on legislative history (20) is undermined by the rule of lenity, which construes ambiguous language in favor of the defendant. (21) Additionally, Supreme Court precedent requires a categorical approach, considering only the elements of the state offense, which results in a more uniform application of this federal statute.