A standing-room only crowd attended the Senate Judiciary Committee’s first (ever!) hearing on guns and domestic violence on Wednesday morning; when the door opened, one could hear that there were people out in the hall as well. Under discussion were S. 1290, Sen. Amy Klobuchar (D-MN)’s Protecting Domestic Violence and Stalking Victims Act, and S. 2483, freshman Sen. Richard Blumenthal (D-CT)’s Lori Jackson Domestic Violence Survivor Protection Act. Both were presented as extensions of the Violence Against Women Act, which was reauthorized last year.
Klobuchar’s bill would do two things: extend domestic violence protections to include “dating partners” or others “similarly situated to a spouse,” and make it illegal for convicted stalkers to own guns. Blumenthal’s would prevent gun purchases or possession by abusers under temporary restraining orders—the kind of order a woman can get from a judge while waiting for a more permanent restraining order, and is explicitly designed to protect women in the first hours and days after they leave abusive partners by authorizing police to immediately remove all guns from their abusers’ possession. Like Klobuchar’s bill, Blumenthal’s would cover dating partners as well as victims who had been living with or married to their abusers.
Klobuchar made the point that essentially these bills can be seen as updates to the Violence Against Women Act, bringing the existing law into line with laws in several states that already provide these protections. The proposed legislation also acknowledges the realities that, according to Department of Justice statistics, violence against dating partners is now actually more prevalent than violence against victims who are married to their abusers and that stalking is both on the rise and a leading predictor of violent attacks against women. In essence, she said, these are “common sense” ideas. Klobuchar, Blumenthal, and two of the five witnesses emphasized, too, that the proposed laws are not intended to erode or deprive “law-abiding citizens” of their Second Amendment rights.
Testifying were Jacquelyn Campbell, a nursing professor and national domestic violence advocate; Joyce Lee Malcolm, a law professor and Second Amendment proponent (who was cited in the recent Heller decision against gun restrictions in the city of D.C.); Christopher Schmaling, sherriff of Racine County, WI, who has worked to get guns out of the hands of abusers within his jurisdiction; Seamus McCaffrey, justice of the Supreme Court of Pennsylvania, arguing that the proposed laws would do little to help victims; and Elvin Daniel, a gun control advocate—and National Rifle Association member—whose sister, Zina, was killed by her estranged husband the day after he bought a gun online without a background check.
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Some statistics about guns and intimate partner violence in the United States: Eighty-four percent of the women who are victims of gun violence in economically advanced nations are from the United States; fifty-seven percent of recent mass shootings involved some form of domestic violence; and homicides are the most prevalent cause of death for pregnant or immediately postpartum women in many states, and 61.8 percent of those murders involve guns.
And, as Jacquelyn Campbell pointed out, a gun doesn’t have to actually shoot someone to play a significant role in a domestic violence situation. In a survey of 400 California women in domestic violence shelters, two-thirds of the women who came from homes where a gun was present said that that gun was used to threaten them—even though less than 5 percent of the women were actually shot at. Along similar lines, Schmaling told a horrifying story of a woman whose case his department had handled, whose husband beat her with a baseball bat and used a gun—not to shoot her, but to prevent her from fighting back and to force her to comply with his tying her up and stuffing her into a garbage can filled with snow, which he then left in a shed for hours until the police finally found her and saved her life.
Chuck Grassley (R-IA), the ranking member of the judiciary committee, was the only Republican on the committee at the hearing. In his introductory remarks, he set the tone for the opposing witnesses to follow by arguing that on the one hand, there are so few stalking convictions that the bills in question wouldn’t have any real effect—but on the other hand, that they would retroactively deprive people from their Second Amendment rights. How legislation simultaneously has no effect and violates people’s rights wasn’t clear. I don’t think it’s bias on my part (Full disclosure: I think domestic abusers shouldn’t be allowed to own guns) that led me to think that the opposition arguments were surprisingly weak.
Seamus McCaffrey’s, for instance. He gave the impression of earnest sincerity—but his proposed solution was that, since denying gun ownership to those named in temporary restraining orders violated their rights, we should instead attach GPS tracking devices to their ankles. Apparently tracking people’s movements in the absence of a conviction doesn’t violate their rights. Likewise, he pointed out that victims don’t always appear at hearings because, among other reasons, they are afraid to show up, while failing to recognize that since abusers are legally allowed to own guns, victims have good reason to be afraid of showing up at a place and time that their abusers know about in advance (a point that Blumenthal made clear in the question period).
McCaffrey’s talking point was that it’s important to “level the playing field” by making sure that both the accuser and the accused have an opportunity to tell their sides of the story. That a history of violence, particularly one in which guns are involved, means the “playing field” is deeply uneven before the courts ever get involved didn’t seem to occur to him. Moreover, during questioning, he agreed with Blumenthal that judges “do take it seriously” when they issue temporary restraining orders, which aren’t available simply for the asking.
Malcolm’s testimony similarly focused on the argument that a temporary restraining order would constitute unfair grounds for suspending an accused abuser’s right to own or purchase guns, since the accused would not yet have had a chance to present his side of the story. She seemed confused, though, about what’s actually required to get a stalking conviction or temporary restraining order, hypothesizing that people accused of “bullying” or “simply verbally harassing someone” might lose their Second Amendment rights. During the questioning period, Klobuchar gave Campbell an opportunity to clarify that stalking convictions are not easy to get.
The room’s favorite moment, though, came when Sen. Sheldon Whitehouse (D-RI), chair of the hearing, pointed out to Malcolm that following her logic, it was unconstitutional for police to execute search warrants—since a search warrant, like a temporary restraining order, is issued by a judge without the presence of the accused, and allows the police to search and remove personal property. When pressed, Malcom agreed that search warrants are constitutional (whew!), because judges “have to have evidence”—just as, Whitehouse pointed out, they do to issue restraining orders. Asked if she thought that there should be a higher standard of evidence for a restraining order than there is for a search warrant, she had to answer no.
Whitehouse gave the final word to Shmaling, who emphasized, as he had done throughout his testimony, that it was important to him to maintain the Second Amendment rights of law-abiding citizens—but that those convicted of domestic violence or stalking are, by definition, no longer law-abiding.
During Shmaling’s testimony, he also said that in his mind, since domestic violence calls involve intimate relationships and situations coupled with heightened feelings, they are the most dangerous calls for police to go on. Therefore, he argued, the proposed laws would help protect not only victims, but also law enforcement. One doesn’t have to reach hard to think of situations where men with a past history of domestic violence have killed or threatened people other than their partners: Ronald Haskell, the man whose 15-year-old niece was the only survivor when he shot her entire family earlier this month, is just the most recent example.
Obviously, both bills have a long way to go, given Republican control of the House of Representatives, the caution of many Democrats where gun laws are concerned, and the lobbying power of the National Rifle Association. If the Democrats lose the Senate in November, the kind of protections being proposed here will likely recede even further into the future. But if opponents of better gun regulations can’t marshal stronger arguments than were presented Wednesday afternoon, it’s hard to imagine that things won’t, eventually, change.
CORRECTION: A previous version of this article misidentified the chair of the hearing. It was Sen. Whitehouse and not Sen. Patrick Leahy (D-VT), who serves as chairman of the Senate Judiciary Committee.