‘Boyfriend Loophole’ – The Roadblock on Gun Control?

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Like most loopholes, this really isn’t one. We’re stuck arguing over what the meaning of ‘is’ is, more or less. We’re not talking about the definition of domestic violence, we are setting a new definition for what a domestic relationship is.

We remember the ‘Gun Show’ loophole, right? The panic generating fact that a private non-FFL’d individual could sell a firearm to another non-FFL’d individual, under the rules of the state governing private sales, and most of those didn’t involve a NICS check because it wasn’t a federally regulated transfer. But because it could happen at a ‘gun show’ too, as well as just about anywhere else, this was a bad thing.

This is truly more of the same.

What ‘Boyfriend Loophole’ implies is that somehow a domestic partner outside of marriage, familial, cohabitation, or other traditional definitions of domestic partner, gets special immunity during their background check for a firearm, even if they are a convicted domestic abuser at the misdemeanor level. Yes, it is weirdly specific.

Defining beyond these physical parameters is difficult, current or former cohabitation. What will constitute serious ‘dating’ that didn’t end up in a cohabitation situation and resulted in a misdemeanor violence conviction? The Senate is working hard on defining this, a crucial element in legislation. What a non-cohabitant domestic relationship would look like to trigger an appropriate domestic violence conviction and make firearm purchase prohibitive.

Again, if this seems weirdly nuanced it is. It is a serious nuance and deserves attention as dating partners, even serious ones, did not necessarily cohabitate, but it is still a very select situation.

Democratic lawmakers have long sought to expand the law to extend that coverage to dating partners, convicted stalkers and any individual under a protective order. But as of now, it doesn’t apply to other types of dating partners, hence the label “boyfriend loophole.”CNN

People subject to a protective order are already prohibited persons, CNN. It is the question just before the domestic violence question on the 4473 form, 21 h. current version, and a yes to either (in fact a yes to ANY except the one establishing you are the transferee) is an automatic denial of transfer.

So then this becomes a reporting concern within NICS, updating federal and compelling an update to state DV conviction reporting to the NICS system and making certain that the answers on the 4473 can accurately be verified with the NICS check. This also means covering down on definitions of domestic relationships state to state, a not so simple task.

We’re talking about a dramatic change in what will be considered domestic violence base upon the expansion of the definition of what is a domestic relationship, and the equivalence of cohabiting partners who have not lived together and have no familial relationship. This is probably a relevant question in 2022, with digital communication and online harassment being what they are and the expansion of polygamous style relations, the highly complicated question is what will the new line for the digital and more socially distanced age look like?

Domestic violence isn’t changing, domestic relationship definition is. This has very far reaching implications for several other avenues of law too. Inheritance, power of attorney, and so forth.

Also important, which types of relationship are non-permanently prohibitive and which ones are able to be removed through establishment of proper behavior. This assumes a new definitive relationship, a domestic violence conviction under the new relationship, and the conviction is not otherwise covered under prohibited person definitions. This is a really narrow selection of actions.

If your answer is ‘none’ than you do not believe in a rehabilitative justice system. Permanently removing a civil right through adjudication should never be a step lightly taken. It should remain under strict and constant scrutiny, however when this question involves firearms the Democrats are willing to throw every possible variable under the denial format and damn the consequences. They very prominently disregard the negative impacts of current firearm law on poor and minority communities. This while LE branches and research consistently comeback and do not enforce or recommend enforcing these provisions, because they acknowledge they are low threat the majority of the time.

This practice consistently undermines current gun regulations. This undermining needs to stop, either by shifting the regulations back to the consistently enforceable limits or by enforcing them at their currently prescribed limits.

The new domestic relationship definition is unlikely to change much on the legal front, other than generating more court cases and NICS denials that are not followed up with even an inquiry. Again, we are talking about non-cohabitation. People who did not live together and have no other familial connection, this is a difficult relationship situation to define.

I do not know how many convictions exist which would fall under the expanded domestic relationship, as domestic violence as a misdemeanor, that are not already under a different prohibitive category. That is an important number to know as we look at the efficacy of this change. Additionally, how many estimated crimes would be intervenable upon under the new definition and vs how many have law enforcement failed to under current definitions that resulted in a serious injury or death.

Like the Red Flag language, which is the other main hangup, the expansion of relationship definition must be causative and effective if the bill is to have any positive influence. We will see, we still have not seen the text of this agreed to framework.