Military possession of weapons after conviction

[medalguy]

I've seen a number of inquiries and discussions on this and other forumns regarding possession of a firearm by military members following any kind of felony conviction. On the face of it, it does seem like military folks should be allowed to handle weapons as a matter of their job description, right?

Well the Lautenberg Amendment seems to have changed this. I was looking for some background information on various types of military 5.56 ammunition, and in my ramblings through the web, I came across a NG training regulation that mentioned this particular subject as it pertains to use of a training range. Here's the document as I found it:

Lautenburg Amendment
The Federal Gun Control Act of 1968, as amended in 1996, makes it a federal Felony for anyone
who has a qualifying misdemeanor conviction for domestic violence to ship, transport, possess, or
receive firearms or ammunition. It is also a felony for you to issue or dispose of firearms or
ammunition to anyone with a qualifying conviction if you know, or should know, about the
conviction.
To qualify as a conviction under the Lautenburg Amendment, there must be:
1. A conviction, not a mere arrest; AND
2. The crime must have involved the use or attempted use of physical force, or the threatened
use of a deadly weapon; AND
3. At the time of the crime, the Soldier/Airman must have had a particular relationship with the
victim, such as current or former spouse, parent/guardian, cohabited with the victim, shared a child in
common with the victim or was similarly situated.
This law applies to everyone, including military personnel.
There is no time limit on how old or recent the conviction need be, and all qualifying convictions,
no matter their age, are covered under the law.
If you have a qualifying conviction, do not accept possession of firearms or ammunition, military or
otherwise, to do so violates the law and subjects you to criminal prosecution, as well as possible adverse
administrative action by the military.
If you know of someone in the Tennessee National Guard who has a qualifying conviction, report
this fact or your commander or First Sergeant, and do not issue that person firearms or ammunition.
Issuing firearms or ammunition to someone who has a qualifying conviction, which you know or
should know about, is also a federal felony, which would subject you to criminal prosecution and
adverse administrative action.
Remember, it is not a federal felony under the Lautenburg Amendment to merely have a qualifying
conviction. You are committing a felony only if you have such a conviction, and then possess firearms
or ammunition. Therefore, if you have a qualifying conviction, or may have one, it is in your interest
to avoid possessing firearms or ammunition and violating the Lautenburg Amendment.
If you have a qualifying conviction, or if you are unsure whether you have one, see your
commander. Your access to firearms and ammunition will be suspended, but you will also be referred
to a legal assistance attorney, who will work with you to find out if you have a qualifying conviction.
If you do not have such a conviction, your access to weapons and ammunition will be restored. If you
have a qualifying conviction, it is in your interest to know, so you can avoid violating the Lautenburg
Amendment, thereby committing a federal felony. In that case, your legal assistance attorney will
explore with you your legal options to obtain relief from the Lautenburg Amendment’s restrictions.
READ BEFORE DRAWING A WEAPON OR AMMUNITION
*If you have a qualifying misdemeanor conviction for domestic violence under the Federal Gun
Control Act, you may not possess or receive firearms, ammunition, military or otherwise.
* If you have such a conviction and draw a weapon or ammunition, you are committing a federal
felony under Title 18, Section 922.
* If you have any questions whether this law applies to you, contact your commander or First Sergeant.
They will provide you information, or refer you to a legal assistance attorney.

 

[leadcounsel]

If you know of someone in the Tennessee National Guard who has a qualifying conviction, report
this fact or your commander or First Sergeant, and do not issue that person firearms or ammunition.
Issuing firearms or ammunition to someone who has a qualifying conviction, which you know or
should know about, is also a federal felony, which would subject you to criminal prosecution and
adverse administrative action.
Remember, it is not a federal felony under the Lautenburg Amendment to merely have a qualifying
conviction. You are committing a felony only if you have such a conviction, and then possess firearms
or ammunition. Therefore, if you have a qualifying conviction, or may have one, it is in your interest
to avoid possessing firearms or ammunition and violating the Lautenburg Amendment.
If you have a qualifying conviction, or if you are unsure whether you have one, see your
commander. Your access to firearms and ammunition will be suspended, but you will also be referred
to a legal assistance attorney, who will work with you to find out if you have a qualifying conviction.
If you do not have such a conviction, your access to weapons and ammunition will be restored. If you
have a qualifying conviction, it is in your interest to know, so you can avoid violating the Lautenburg
Amendment, thereby committing a federal felony. In that case, your legal assistance attorney will
explore with you your legal options to obtain relief from the Lautenburg Amendment’s restrictions.

Uh - I think a lot of this is terrible crappy advice.

If you know of someone that has a conviction, you should discuss it with that person first rather than diming him out to your Commander!

And if you suspect you have a conviction, you should talk to a free legal assistance attorney FIRST before talking to your Commander. Because, essentially, you'd be confessing to a FELONY criminal act of possessing prohibited weapons/munitions.

If I recall correctly, there is a mandatory 5 year minimum sentencing guidelines for violation of Lautenberg.

Lautenberg is about the most atrocious laws ever put on the books and it's in every freedom loving gun owners' interest to write his/her representatives to repeal it. It's a dog of a law. An end around the felony conviction that is otherwise required to strip a person of his 2A rights. In some jurisdictions, misdemeanors are handed out like candy... requiring little proof and conducted in a civilian court (not a criminal court, where a defendant has the right to a court appointed lawyer and a jury; but instead it is in front of a family court judge - often biast). And, folks who admited to domestic violence misdemeanors PRE-1996 were retroactively hit with Lautenberg in 1996!!! Can you say Ex-Post Facto???

A TERRIBLE law!

 

[deadin]

Well, if true, that basically says if one has a domestic violence conviction and are in the military, they should be receiving a general discharge as being unfit for military service. (Last time I looked all military are expected to be able to pick up a weapon if need be, regardless of what their job is.)

 

[Shadow 7D]

The loose their right to possess a INDIVIDUAL WEAPON
but, from what I understand, they can be a member on a crew served weapon.

 

[Uteridge]

Members of crew served weapon teams still carry individual weapons in addition to their MG.

 

[Shadow 7D]

Not if you have a DV...
and by crew served, remember, that includes things like 16" battleship main guns.

 

[Uteridge]

This issue has been looked at extensively by the Judge Advocate General. If you have a specific legal question dealing with military members and the laws that apply to them on duty you should talk to your unit's legal section who will direct you to a JAG if they are unable to answer your question. It is also important to remember that as a member of the military you fall under the UCMJ when you are on duty. The UCMJ has powers that are much broader than civilian laws in large part because there are many American Service Members that are stationed or deployed OCONUS where U.S. Statute is not worth the paper it is printed on.

 

[leadcounsel]

The loose their right to possess a INDIVIDUAL WEAPON
but, from what I understand, they can be a member on a crew served weapon.

Wrong - The military requires nearly all members (with minimal exception) to be deployable and this means able to handle weapons and/or ammo, including crew served weapons. Conviction = Lautenberg = Discharged from service.

The UCMJ has powers that are much broader than civilian laws in large part because there are many American Service Members that are stationed or deployed OCONUS where U.S. Statute is not worth the paper it is printed on.

UCMJ has broad powers - correct.
Servicemembers MUST still follow applicable state and federal laws while deployed, and they are never deployed 100%. Failure to follow Lautenberg would be a violation of federal law. The military could convict under the UCMJ or the Feds or State court could convict. There would also likely be some court order the service member would be found to be in contempt of, and Judges tend to frown on that behavior.

 

[bobbo]

If you know of someone that has a conviction, you should discuss it with that person first rather than diming him out to your Commander!

According to the "Bro Code," yes. Talk to him first. According to a motivated prosecutor, you're guilty of conspiracy or aiding and abetting by not going straight to your commander or sergeant. There's the right way, the wrong way, and the Army way. Do it their way.

And, folks who admited to domestic violence misdemeanors PRE-1996 were retroactively hit with Lautenberg in 1996!!! Can you say Ex-Post Facto???

That's not really ex post facto... ex post facto would be like Joe Blow blowing up a building, the federal government passing a law making a specific crime of blowing up a building, and then prosecuting him under it. If Joe Blow beat up his wife in 1995, was convicted and then in 2007 bought a gun at a yard sale, then that's not an ex post facto law. The law was in place before he broke it (i.e. possession of a firearm).

Is it a bad law? Well, this is a gun forum, so everyone here will say yes. However, wife beaters are on my list of people I have no respect for, like child molesters, so I really don't care what rights they have.

 

[USAF_Vet]

However, wife beaters are on my list of people I have no respect for, like child molesters, so I really don't care what rights they have.

Why is it always assumed that it is the man in the relationship who is the abuser?

 

[BeerSleeper]

Is it a bad law? Well, this is a gun forum, so everyone here will say yes. However, wife beaters are on my list of people I have no respect for, like child molesters, so I really don't care what rights they have.

I agree with you on the subject of beaters/molesters, but in some jurisdictions domestic violence misdemeanors are handed out like speeding tickets, often times on evidence no more substantial evidence than "she said". That's fine, if "she said" the truth, but it's not unheard of for "she said" to more aptly be "cried wolf".

 

[BeerSleeper]

Why is it always assumed that it is the man in the relationship who is the abuser?

Because if you're a man, being abused by a woman, you have bigger problems to deal with.

 

[USAF_Vet]

Because if you're a man, being abused by a woman, you have bigger problems to deal with.

I know many people who have been convicted of/ accused of DV, and sad to say, the majority of them are females. Most of their victims/ accusers were not their husbands/ boy friends, although some were. Many were children, grandchildren, sisters, mothers, fathers, etc. Being assaulted by a woman is a problem, but not in the way I assume you mean.

 

[BeerSleeper]

I didn't look at it in the broader picture, I took a somewhat narrow view in that I only thought of husband/wife/significant other/etc. I neglected to consider technically DV encompasses a wide variety of familial relationships. In that scope, my statement is somewhat shortsighted.
I do still think if your an adult male, you should be able to take anything your woman can dish out.

 

[NavyLCDR]

I do still think if your an adult male, you should be able to take anything your woman can dish out.

The problem is the male cannot fight back. If he does, he gets slapped with domestic violence. That's why it is just better to report the woman, let the cops take her away, and walk away a free man. It's better to have a bruised ego (and maybe a black eye) and have all of your freedoms intact, rather than fighting back and having everything stripped from you. In reality, it doesn't matter who hit who first - all that matters is the man hit the woman, or restrained the woman.

I am the Arms, Ammunition and Explosives Officer for a command of over 1,100 Sailors. I screen personnel records prior to anybody being issued a personal weapon. I am also a division officer with more than 410 Sailors who work for me. I deal with these matters almost on a daily basis.

A message came out last year that said any Sailor who was not eligible to possess a personal firearm WAS eligible for administrative discharge.

Put the machoism and testostrone aside and if your woman slaps you, leave and call the cops.

 

[USAF_Vet]

I believe you are correct, in that a man should be able to take whatever a woman can dish out. But being able to take it doesn't make it right, or legal. Also you have to remember, a lot of DVs are called in my friends, relatives, neighbors, and not the victim themselves. But this is getting way off track.

Back on topic, when I was on active duty, a young Airman was having some marital issues, and a neighbor (a Security Forces sergeant) called it in. This young Airman was arrested, Mirandized, and eventually turned over to his supervisor (me) and the First Sergeant. As it turned out, it appeared both the Airman and his wife were at fault, based on the LEO statements. Charges were dropped in lieu of marital counseling and anger management. Prior to even finishing the mandated counseling, the young Airman was deployed in support of OEF, with an issued M-16. After his deployment, he and his wife did not finish the mandated counseling, and the issue was closed out as 'unresolved' mostly due to issues the wife had. She was refusing to participate, because, as a civilian, the military couldn't mandate anything from her.

So in this situation, we had an active duty Airman under investigation for/ accused of domestic violence, whose mandated counseling was suspended for a deployment, then closed out unsuccessfully months later. This young Airman was deployed at least once more while I was his supervisor, and again issued a firearm.

All this happened post '96/ Lautenberg.

 

[Shadow 7D]

Surprisingly, in the military, under UCMJ, with the direct involvement of command, it is better prosecuted than I think the civilian side, where you get a over worked prosecutor trying to make a name for himself and clear X many cases being advised by a "Family Advocacy Center" (lets not get side tracked and figure that the family is the LAST thing most of these center advocate for)

So they all go to court, and in the mean time, "interviewers' who could have come straight from Stalin's CCCP or North Vietnam, are working on your wife and kids. They tell the wife fun stuff like, press charges or we take the kids.

In the military, the command gets to intervene and sort out the situation in a much less confrontational manner, and to the best good of all involved.
On the Other Hand, I have personally seen the command go out of it's way to throw the book, and then drop the book case, on a soldier who was abusing his wife and kids, to the point of having someone escort him/ watch him 24hours a day, remove his civilian clothes and put him on restriction.

 

[Strykervet]

Lautenberg whatever. The simple fact is that soldiers with known convictions do carry weapons in the military. They can't have personal ones, NICS will deny them, but they can be issued ones. I know this because I knew one guy that had a domestic violence charge --ranger, sniper, all that hooah stuff. A friend of mine had a domestic violence charge and tried to get into the army. He had to get a general's signature to get in, but he got in and went airborne. One guy tried to get me to buy a rifle for him --again, ranger, sniper-- because of domestic violence (the answer was NO of course). All these guys are infantry.

Domestic violence is handed out these days like traffic tickets. Some cases warrant scrutiny, others are just an arguement that upset the neighbors and now one or both spouses have this crap judgement. Watch Cops on TV and you will see what I mean. Some of these guys and gals deserve to go to jail for beating their "loved" ones. But most just get caught up in beaureucratic nonsense because of a loud tiff. Where I live, I can get a domestic violence conviction if the cops are called and I broke one of my own possessions during a verbal arguement. Ridiculous. To lose 2A rights over this is not justice; it is, however, one step towards totalitarian control. An unarmed populace is an easy to manipulate populace.

It is also a felony to be in posession of a weapon while addicted to drugs. When 10% of a battalion tests hot, at least ONE has to be addicted... But I have seen them take a soldier who was obviously under the influence of multiple drugs (actually he was withdrawing and looked horrible) and issue him a SAW and 600 rounds and then run him to the range and make him qualify under those conditions. I was scared as hell to be next to him, but what could I do, I was a buck private at the time and we were trained to do what we were told. This SGT was told to torture and qualify this soldier on the SAW while specifically in a state of drug withdrawal. So there.

This guy eventually got discharged for testing hot on every single drug they tested for. How he got them all in his system and walked to the line beats me. He did this on purpose, he wanted out, and this was how he did it. It wasn't easy, they tortured him for almost a year, but no Lautenberg Act.

Another guy, my original roommate, he was crazy and broke so many laws I lost count. To include theft of ammunition (he had several hundred belted SAW rounds, some in drums, some linked up in 400rd. belts) and explosives. He kept them in his room (after I got another room of course, I hated this guy) on the third floor. Scary if you knew him, it looked right down on the ground where two companies formed. Anyway, he went AWOL, stole a dirtbike, had sex with a major's 14 yo. daughter, broke into muliple houses, stole weapons, sold stolen property, and theft of night vision equipment. There is more, but that is the gist.

No Lautenberg Act. He carried a weapon until the day he stood court martial (note he had already been convicted on some of these charges in a civilian court). He got two years in an army jail, but he made sexual gestures at the guards so they moved him to Levenworth for four years.

From my experience, I'd say that you don't have a problem in the military. They have your file and did an FBI check on you and let you in, so if they give you a weapon it is probably fine. What you do past the gates is your problem though. And if you get in trouble with the civilians and don't report it to your chain, then that is another problem.

BTW, I read, or heard a law professor's lecture somewhere, that there are tens of thousands of laws on the books here. That anyone can be found guilty of something if enough scrutiny were applied. There is even some obscure federal law that says you can be prosecuted for breaking laws unknown to you in other countries.

Also, if you break a law in another country that is a felony there but not here, you are still a felon here. For example. If you cross into Mexico (I thought it was a one way...) with one live cartridge in your trunk from that time you went shooting a couple of years ago and the ammo box fell over in your trunk, and the federales find it, you will get convicted of a felony and do time in a Mexican prison. This actually happened to an FFL holder, ten or more years ago if I recall, and he lost his license once he got back to the US. I don't know if it got rectified, but chances are it did if had enough money and not if he didn't. That is really how the law works.

Bottom line: the military can do whatever it wants. You as an individual cannot, and are always in violation of some law at some time whether you know it or not, and this can be prosecuted. Remember, they brought down the 20th century's biggest racketeers, murderers, and criminals of all time, simply because they failed to file a tax return on illegal profits.

In addition to this useless and misguided law, it is also illegal to take baths more than once a (week, month, year) --some with exception, such as a wedding, depending on where you live. Yes, not only are we all sinners, we are all lawbreakers too.

In a land with millions laws, it only stands reason to have millions of lawbreakers. Go figure.

 

[mljdeckard]

I am currently deployed, and we all had to sign Lautenberg statements. I have no idea if anyone refused or what would have happened to them if they had.

When I have reported to posts for TDY and turned my carry gun in to the armorer, (GGGrrrrr,) they had the commander give me a Lautenberg brief. He asked me if I had any problems with the Lautenberg Amendment, I replied; "Only that it exists sir." (He didn't think it was very funny.)

And Strykervet, what you have described above sounds more like units violating policy because they need people.

Lautenberg is ex-post-facto in that it changes the consequences for a crime AFTER the fact. This is exactly what we were trying to avoid in putting it in The Constitution in the first place.

 

[leadcounsel]

Lautenberg is most certainly Ex-Post Facto. The penalty for a crime being increased AFTER you pled guilty is by defination Ex-Post Facto.

The fact that thousands of people may have pled guilty in 1990 to a silly misdemeanor domestic violence conviction, only to have their 2A revoked in 1996 due to a new law is patently unfair.

How would you like to plead guilty today to a silly traffic violation, only to find that in 3 years a new law prohibits gun ownership for the same traffic violations, RETROACTIVELY!!!! Completely unjust!

 

[JShirley]

:banghead: