WASHINGTON — Thousands convicted of a misdemeanor for threatening or assaulting a spouse or girlfriend could once again own guns because of a flaw in the federal law.
That prospect grew more likely Monday after the Supreme Court gave a skeptical hearing to a government lawyer who argued that a crime of domestic violence should result in a loss of gun rights.
Neither families nor police officers should face "the powder keg situation of a domestic offender with a gun," said Nicole Saharsky, a Justice Department lawyer.
But she ran into sharp questioning from justices who said the law was badly written.
Congress in 1996 sought to strengthen the laws against domestic violence. Before, only persons convicted of violent felonies in such situations lost their rights to own a gun. Going a step further, lawmakers adopted an amendment to take away gun rights for those who had a "misdemeanor crime of domestic violence" on their records.
Sen. Frank R. Lautenberg (D-N.J.), the amendment's sponsor, said he was closing a loophole. In domestic violence cases, local prosecutors often agree to have defendants plead guilty to a misdemeanor assault or battery, which usually calls for less than a year in jail, he said.
"There is no reason for someone who beats their wives or abuses their children to own a gun. When you combine wife beaters and guns, the end result is more death," Lautenberg said in the Senate before the amendment was enacted.
But last year, the U.S. 4th Circuit Court of Appeals in Virginia cast doubt on the law's reach. Its judges decided the federal gun ban did not cover misdemeanor convictions involving assault or battery at home. Instead, it said the federal ban applied only to those convicted under a state's domestic violence law.
That would make the federal gun law "a dead letter in two-thirds of the states," according to the government's lawyer. Saharsky said most states do not have misdemeanor laws specifically targeting domestic violence.
Justice Antonin Scalia was unswayed by that argument. "People are governed by the law that is passed, not by the law that Congress intended to pass," he said. He and Chief Justice John G. Roberts Jr. said the law as written appeared to apply only to domestic violence measures, not the more common laws against assault and battery.
Scalia wrote the 5-4 opinion in June which held for the first time that the 2nd Amendment protects an individual's right to have a gun. He said then that the decision did not shield criminals who committed serious crimes with a gun.
But during Monday's argument, Scalia said possessing a gun was "lawful conduct," and a wife-beating charge lodged against a West Virginia man was "not that serious an offense."
The government lawyer shot back that the defendant "hit his wife all around the face until it swelled out, kicked her all around her body, kicked her in the ribs. . . . "
"Then he should have been charged with a felony," Scalia interjected, "but he wasn't."
The defendant, Randy Hayes, pleaded guilty in 1994 to misdemeanor battery of his then-wife. Ten years later, police responded to a domestic violence call from his home and learned he had owned or sold several guns. He was convicted of illegal gun possession under the 1996 amendment.
The case of U.S. vs. Hayes does not turn on the 2nd Amendment, but instead on how the justices read the words of the 1996 law.
"This statute is a mess," Justice Anthony M. Kennedy commented at one point.
Roberts noted that California, Illinois, Michigan and Ohio have misdemeanor domestic violence laws. People convicted under those measures would not benefit from a ruling that limited the reach of the federal law, he said.
The Brady Center to Prevent Gun Violence said a ruling for Hayes "could re-arm thousands of convicted domestic violence abusers." About 14% "of all police officer deaths occur during a response to domestic violence calls," the group said.
On the other side, the Second Amendment Foundation said the "fundamental right" to own a gun should not be taken away over a misdemeanor.