Civilian courts and police could confiscate the firearms of service members accused of domestic violence by military authorities under a proposed law being considered by Congress.
The proposal is a bid by House Democratic lawmakers to give more protection to military-connected victims who have been battered, assaulted, or stalked. But conservatives are putting up fierce opposition because they say it would infringe on troops’ Second Amendment right to bear arms.
Supporters are hoping to pass the measure into law this year as part of the annual defense policy bill. Its future remains uncertain because the Senate hasn’t floated any similar domestic violence initiative as part of the bill, which must be negotiated and passed by both chambers.
“Domestic violence is a forgotten crisis in the military, and that’s why I offered an NDAA [National Defense Authorization Act] amendment to ensure that service members have access to military court protective orders that are as strong and enforceable as protective orders issued by civilian courts,” Jackie Speier, a Democrat from California who chairs the House Armed Services Committee’s personnel subcommittee, said in a written statement to Military.com.
Right now, military commanders can issue protective orders requiring a service member to stay away from an alleged victim of domestic violence or related crimes such as stalking, and temporarily confiscate their firearms if they are on a military installation.
Because those orders aren’t issued by a court, civilian law enforcement agencies won’t enforce them and commanders have no authority to seize guns from troops off base.
That means if a victim wants protection from their abuser outside of a military base, they have to go through the separate process of obtaining a civilian protective order, which advocates say puts victims through unnecessary trauma and potentially leaves them open to further abuse.
To address the gap between military and civilian laws, a provision in the House version of the NDAA creates a system for military courts to issue protective orders for victims of domestic violence, stalking, sexual assault, and related crimes.
Military court protective orders would be fully recognized by state and local law enforcement under the proposed law sponsored by Speier. The subject of the order would also be restricted from “possessing, receiving or otherwise accessing a firearm” while the order is in effect.
Retired Gen. Peter Chiarelli, who served as Army vice chief of staff from 2008 to 2012, told Military.com in an interview the proposal “makes all kinds of sense” to him.
Chiarelli previously lobbied for a change enacted in 2013 that allows commanders to ask troops at risk of harming themselves or others about personally owned firearms. While he said he has not read this year’s NDAA, he said Military.com’s description of it sounds similar to his previous effort.
“It’s not stripping service members of their Second Amendment rights,” he said. “If you’ve got a domestic issue that’s gone as far as the courts, it’s probably a pretty serious issue. If somebody is applying for a restraining order, they’re telling that individual to cease and desist. I personally have no issue with that.”
In July, an independent commission created by Defense Secretary Lloyd Austin recommended creating protective orders issued by military judges — versus those issued by commanders now — as part of an effort to finally reduce the number of sexual assaults in the military.
Forcing alleged victims to apply for both military and civilian protective orders is “overly burdensome and duplicative, and presents a clear safety risk,” the commission said in its July report.
The proposal is similar to the so-called Red Flag laws that exist in 19 states and the District of Columbia. The laws allow police or family members to petition a court to take away the guns of someone who may be a danger to themselves or others.
The measure was added to the House’s version of the NDAA during the House Armed Services Committee’s consideration of the bill in July. It was adopted as part of an “en bloc” package of amendments, which are typically considered non-controversial and supported by both parties.
But after the committee’s markup, conservatives fumed that the bill would trample on service members’ Second Amendment rights.
In an October letter, 160 House Republicans, including several Armed Services Committee members, called on the leaders of the House and Senate armed services committees to strip the provision from the final version of the NDAA, saying it “would violate the Second Amendment rights of our nation’s brave service members by allowing military judges and magistrates to issue military court gun confiscation orders.”
In a separate letter to fellow lawmakers last month, Rep. Chip Roy, R-Texas, took particular issue with parts of the measure that would allow a military court to expedite a protective order in an emergency, saying it violates rights to fair treatment under the law.
“Congress should not allow servicemen who are faced with allegations to have their firearms taken away first, and face due process later,” Roy wrote in the letter.
The bill text says an emergency order could be issued on an “ex parte basis,” meaning without all parties present in court. The court would then have to give the subject of the order up to 30 days to respond.
A spokesperson for Roy pointed Military.com to a statement from September and did not respond to a follow-up request for comment.
A similar provision was included in last year’s House version of the NDAA, but it was removed during negotiations with the Senate, which at the time was controlled by Republicans.
There is no similar language in this year’s Senate version of the bill, and that could give opponents an opening to have it cut.
A White House statement this week about the Senate NDAA urged lawmakers to “enable military protective orders (MPOs) to be given full faith and credit.”
Speier vowed to continue fighting for the provision during negotiations over the final bill “so that service members who are the target of intimate-partner violence are not treated like second-class citizens when it comes to protective orders.”
— Rebecca Kheel can be reached at firstname.lastname@example.org. Follow her on Twitter @reporterkheel.