The Lautenberg Amendment
The Lautenberg Amendment stands as one of the most significant federal firearms prohibitions that can permanently affect your gun rights following a domestic violence conviction in California. Enacted in 1996 as an amendment to the Gun Control Act, this federal law creates a lifetime ban on firearm possession for individuals convicted of misdemeanor domestic violence offenses. Consequently, even a seemingly minor domestic violence conviction can result in permanent loss of Second Amendment rights, regardless of what California state law might otherwise permit.
California gun laws themselves impose strict restrictions following domestic violence convictions, but the Lautenberg Amendment goes further by establishing a nationwide, lifetime prohibition. Furthermore, this federal ban applies retroactively to convictions that occurred before the law's passage, catching many gun owners by surprise. The interplay between California state restrictions and federal prohibitions creates a complex legal landscape that many individuals don't fully understand until facing serious consequences.
Importantly, violations of these firearms prohibitions carry severe penalties—including felony charges, significant prison time, and substantial fines at both state and federal levels. For anyone facing domestic violence charges in California, understanding these potential consequences before entering a plea or proceeding to trial is essential, as certain legal outcomes can permanently impact your constitutional rights.
California Gun Restrictions After Domestic Violence Conviction
California implements some of the nation's strictest firearm prohibitions for those convicted of domestic violence offenses. These restrictions operate independently from federal laws and create a multi-layered system of prohibitions that vary based on the specific conviction.
PC 29800: Lifetime Ban for Felony DV Convictions
Under California Penal Code 29800 PC, anyone convicted of a felony domestic violence offense faces a permanent prohibition from owning, possessing, purchasing, or receiving firearms. This "felon with a firearm" law applies to convictions from any state or country, not just California cases. Violations of this prohibition constitute a separate felony offense, punishable by up to three years in state prison and fines reaching $10,000 . The courts strictly enforce this ban through a relinquishment process that begins immediately upon conviction.
PC 29805: 10-Year Ban for Misdemeanor DV Offenses
California Penal Code 29805 PC outlines approximately forty specific misdemeanor offenses that trigger a ten-year firearm prohibition. These include common domestic violence charges such as:
- PC 243(e)(1): Domestic battery
- PC 422: Criminal threats
- PC 646.9: Stalking
- PC 273.6: Violation of protective orders
- PC 136.1: Dissuading a witness
This section covers instances where domestic violence doesn't result in physical injury or when skilled defense attorneys negotiate reduced charges . While state law imposes a ten-year restriction, it's essential to note that federal prohibitions may still apply permanently, especially for qualifying domestic violence misdemeanors.
PC 273.5: Misdemeanor Conviction with Lifetime Ban
Since January 1, 2019, California has implemented a significant change to firearm prohibitions through an amendment to PC 29805. This amendment adds subsection (b), which imposes a lifetime ban on firearm possession for misdemeanor convictions of PC 273.5 (corporal injury on a spouse or cohabitant) that occur on or after January 1, 2019 . Previously, these convictions triggered only a ten-year ban under state law. This change effectively aligns California's restrictions with federal prohibitions under the Lautenberg Amendment, creating uniformity between state and federal consequences.
Notably, this lifetime ban applies even after an expungement of the conviction, making it one of the most severe collateral consequences of a domestic violence conviction .
Firearm Surrender Timeline Under PC 29810
California's firearm relinquishment requirements became significantly more robust with the passage of Proposition 63, which took effect January 1, 2018. Under Penal Code 29810, individuals convicted of prohibiting offenses must surrender their firearms according to a strict timeline:
- Individuals must complete a "Prohibited Persons Relinquishment Form" listing all firearms they own or control
- Defendants must designate a third party to take possession of the firearms
- Firearms must be relinquished within 24-48 hours after conviction (or 14 days if the defendant is in custody)
- Proof of compliance must be filed with the court
If a defendant fails to properly relinquish firearms, the court may issue a search warrant authorizing law enforcement to locate and remove any firearms . Additionally, non-compliance with the relinquishment process can result in new criminal charges for unlawful firearm possession .
These California-specific restrictions operate alongside federal prohibitions, creating multiple layers of firearm restrictions for those with domestic violence convictions.
Federal Law: Lautenberg Amendment and 18 USC 922(g)
Federal firearm prohibitions extend far beyond California's state restrictions, with the Lautenberg Amendment representing one of the most sweeping gun control measures in U.S. history. Enacted in 1996, this amendment to the Gun Control Act established firm nationwide restrictions on firearm possession by those with domestic violence convictions or restraining orders, regardless of state laws.
Definition of Misdemeanor Crime of Domestic Violence (MCDV)
For a conviction to qualify as an MCDV under federal law, three key elements must be present. First, the offense must be classified as a misdemeanor under federal, state, tribal, or local law. Second, it must include "the use or attempted use of physical force, or the threatened use of a deadly weapon." Third, the offense must have been committed against a qualifying intimate partner .
The relationship requirement is particularly important. The victim must be a current or former spouse, parent, or guardian; a person with whom the defendant shares a child; someone who cohabited with the defendant as a spouse, parent, or guardian; or a person "similarly situated" to these categories. Moreover, as of June 25, 2022, the definition expanded to include current or recent dating relationships .
Critically, the term "force" doesn't necessarily mean violent force—even "offensive touching" can satisfy this element .
18 USC 922(g)(8): Protective Orders and Firearm Ban
Unlike conviction-based prohibitions, 18 USC 922(g)(8) restricts firearm possession by individuals subject to qualifying domestic violence protective orders. For a protective order to trigger federal firearm restrictions, it must meet specific criteria: the defendant must have received actual notice and had an opportunity to participate in a hearing; the order must restrain the person from harassing, stalking, or threatening an intimate partner or child; and the order must either include a finding that the person represents a "credible threat" or explicitly prohibit the use of physical force .
Essentially, this means temporary ex parte orders generally won't trigger federal firearm prohibitions—although a full hearing resulting in a restraining order typically will. Violations of this federal prohibition carry penalties of up to 10 years in prison and fines up to $250,000 .
18 USC 922(g)(9): Convictions Triggering Lifetime Ban
Commonly referred to as the "Lautenberg Amendment," 18 USC 922(g)(9) permanently prohibits firearm possession by anyone convicted of a qualifying domestic violence misdemeanor. Unlike California's 10-year prohibition for most misdemeanors, this federal ban is lifetime and applies retroactively to convictions that occurred before the law's passage .
The law contains limited exceptions. A person isn't considered "convicted" under this statute if: they weren't represented by counsel and didn't knowingly waive that right; they were entitled to a jury trial that didn't occur without an informed waiver; or if the conviction was expunged, set aside, or pardoned (unless the expungement specifically maintains the firearm prohibition) .
Since 2022, individuals with a single MCDV conviction involving only a dating relationship may have firearm rights restored after five years—provided they haven't been convicted of another disqualifying offense .
Supremacy Clause: Federal Law Overrides State Law
Under the Supremacy Clause (Article VI, Paragraph 2 of the U.S. Constitution), federal law takes precedence over conflicting state laws . Hence, even if California's restrictions expire after ten years for certain misdemeanors, federal prohibitions remain in effect. The Ninth Circuit Court of Appeals has specifically upheld this principle regarding firearm prohibitions following domestic violence convictions .
Ultimately, domestic violence defendants must understand that state-level outcomes can have permanent federal consequences for gun rights, regardless of California's own restrictions.
Protective Orders and Firearm Possession Limits
Protective orders dramatically limit firearm rights for those accused of domestic violence in California, often taking effect before any criminal conviction. These court-issued orders trigger immediate weapon prohibitions that function alongside the Lautenberg Amendment restrictions.
California Penal Code 29825: Firearm Ban During Restraining Orders
California Penal Code 29825 PC makes it a criminal offense to own, possess, purchase, or receive a firearm while subject to a protective order. These orders include domestic violence restraining orders, civil harassment orders, workplace violence prevention orders, and elder abuse protective orders. Once served with a protective order, the respondent must surrender their firearms either immediately upon request by law enforcement or within 24 hours if no immediate request is made. The respondent must then file proof of surrender within 48 hours of receiving the order.
Violations of PC 29825 can be charged as either a misdemeanor (punishable by up to one year in county jail and a $1,000 fine) or as a felony (carrying potential state prison time). A key provision requires all protective orders to explicitly state that the respondent is prohibited from owning or possessing firearms while the order remains in effect.
Federal Requirements for DVPO-Based Firearm Ban
For a domestic violence protective order to trigger federal firearm prohibitions under the Lautenberg Amendment (18 USC 922(g)(8)), it must meet specific criteria. First, the respondent must have received actual notice and had an opportunity to participate in a hearing. Thus, temporary ex parte orders typically do not trigger federal restrictions until after a full hearing. Second, the order must protect an "intimate partner" or their child. Third, the order must either include a finding that the respondent poses a "credible threat" or explicitly prohibit physical force that could cause bodily injury.
Federal violations carry penalties of up to 10 years imprisonment and $250,000 in fines—substantially more severe than state penalties.
Assembly Bill 818: Temporary Confiscation at Scene
Assembly Bill 818 expanded law enforcement's authority to remove weapons during domestic violence incidents. The law requires peace officers to take temporary custody of any firearm or deadly weapon in plain sight or discovered during a lawful search when: (1) at the scene of a domestic violence incident involving a threat to human life or physical assault, (2) serving a protective order, or (3) serving a gun violence restraining order.
AB 818 also requires law enforcement to enter confiscated firearms into the Automated Firearms System (AFS), California's database of firearms that have been reported stolen, lost, found, or recovered. Importantly, this bill imposes no fee for service of protective orders, removing financial barriers for victims seeking protection.
Penalties for Violating State or Federal Firearm Bans
Violating firearm bans after domestic violence incidents carries substantial legal penalties that compound the original conviction. These consequences vary significantly between state and federal jurisdictions.
California Penalties: PC 29800 and PC 29805 Violations
Violating California's firearm prohibitions constitutes a separate criminal offense with serious repercussions. For PC 29800 violations (possession after a felony or certain misdemeanor convictions), offenders face felony charges punishable by up to three years in state prison . These penalties apply regardless of whether the underlying conviction occurred in California or another jurisdiction.
PC 29805 violations (possession within the 10-year prohibition period) are prosecuted as "wobbler" offenses, giving prosecutors discretion to file either:
- Misdemeanor charges: Punishable by up to one year in county jail
- Felony charges: Punishable by up to three years in county jail or state prison
In reality, courts often consider factors like the circumstances of possession, criminal history, and whether the firearm was used in additional criminal conduct when determining appropriate sentences.
Federal Penalties: Up to 10 Years in Prison and $250,000 Fine
Federal penalties substantially exceed California's punishments. Violating the Lautenberg Amendment's prohibitions under 18 U.S.C. § 922(g)(9) carries a statutory maximum of 10 years in federal prison . Additionally, convicted individuals face fines reaching $250,000 and up to three years of supervised release following incarceration.
Nevertheless, actual sentences typically fall below the maximum. Data from "Operation 922" enforcement actions showed an average sentence of 74 months (approximately 6 years) for firearm possession after domestic violence convictions . Importantly, a conviction creates a paradoxical situation: the underlying crime was a misdemeanor, yet possessing a firearm afterward becomes a federal felony .
No Parole in Federal System for Firearm Offenses
Unlike California's state prison system, the federal correctional system has eliminated parole. This means individuals sentenced for federal firearm violations must serve nearly their entire sentence, with only limited "good time" reductions available (typically 54 days per year for sentences exceeding one year).
Beyond direct imprisonment, collateral consequences include permanent firearm prohibition (now as a felon, rather than just as a domestic violence offender), significant employment barriers, and lifetime explanation requirements on background checks . Given these facts, anyone facing domestic violence charges should carefully consider the potential lifetime impact on firearm rights before accepting plea agreements.
Restoring Gun Rights After a DV Conviction
Contrary to popular belief, regaining firearm rights after a domestic violence conviction presents significant challenges in California. The path to restoration involves complex legal processes with limited success rates.
Why Expungement Does Not Restore Gun Rights
Expungement under California Penal Code §1203.4 does not restore firearm rights after domestic violence convictions. In fact, this common misconception leads many to pursue expungements in vain. Despite clearing your criminal record for most purposes, expungement fails to override the federal firearms ban under the Lautenberg Amendment. California law explicitly maintains firearm restrictions even after successfully expunging domestic violence convictions.
Governor's Pardon: Requirements and Limitations
A full and unconditional pardon from California's Governor represents the primary viable path toward restoring gun rights. To qualify, you must have completed your sentence entirely, demonstrated significant rehabilitation, and maintained a clean record for a substantial period. The application process demands thorough documentation, including rehabilitation evidence, character references, and detailed explanations of community contributions. Important to realize, this highly selective process succeeds rarely, as the Governor grants few pardons annually, particularly for offenses related to firearms or domestic violence.
Federal Recognition of State Pardons Under 18 USC 921(a)(33)(B)
Federal law acknowledges state pardons under specific conditions outlined in 18 USC 921(a)(33)(B). A person "shall not be considered convicted" if they've received a pardon that restores civil rights—provided that the pardon doesn't expressly prohibit firearm possession. In other words, the pardon must explicitly restore gun rights or remain silent on the matter. Absent this specific language, even a gubernatorial pardon may fail to override federal restrictions.
Conclusion
Understanding the Lautenberg Amendment proves essential for anyone facing domestic violence charges in California. This federal law creates a lifetime ban on firearm possession following misdemeanor domestic violence convictions, regardless of California's own restrictions. Therefore, even seemingly minor incidents can permanently strip away Second Amendment rights.
The complex interplay between state and federal laws creates a multi-layered system of prohibitions. California imposes various restrictions—from 10-year bans for most misdemeanors to lifetime prohibitions for felony convictions and certain post-2019 misdemeanors under PC 273.5. Still, federal law ultimately prevails through the Supremacy Clause, extending prohibitions beyond state limitations.
Violations of these prohibitions carry severe consequences. California penalties include up to three years imprisonment, while federal violations face substantially harsher punishments—up to 10 years in federal prison without parole, alongside $250,000 in potential fines. Additionally, protective orders trigger immediate firearm surrenders, often before any criminal conviction occurs.
Contrary to widespread belief, restoring gun rights after domestic violence convictions remains exceedingly difficult. Expungements fail to override federal restrictions, leaving gubernatorial pardons as the primary pathway—though these rarely succeed for domestic violence cases. Federal recognition requires explicit restoration language within the pardon.
Given these permanent consequences, defendants must carefully weigh their options before accepting plea agreements. What might appear as a minor charge could result in lifetime prohibition of constitutional rights. This underscores the critical importance of seeking qualified legal counsel before making decisions that permanently impact firearm rights under both California law and the Lautenberg Amendment.
Need a Criminal Defense Attorney? CALL NOW: 213-932-8922
Yuliya Kelmansky is an Expert Criminal Defense Attorney who has over 10 years of practice defending a variety of criminal cases.
