Ban on Gun Possession by Defendants Convicted of a "Domestic Violence Misdemeanor"

Federal law makes it illegal for a person to possess a gun after having been "convicted in any court of a misdemeanor crime of domestic violence." 18 U.S.C. § 922(g)(9). A "misdemeanor crime of domestic violence" is a misdemeanor that "has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by" a person with one of several specified relationships to the victim. 18 U.S.C. § 921(a)(33). In North Carolina, the most common misdemeanor charges used in domestic violence cases are simple assault and assault on a female. Is a person convicted of one of those crimes as a result of domestic violence prohibited from possessing a gun? One might think not, on the theory that neither simple assault nor assault on a female "has, as an element" any particular relationship between the defendant and the victim. But in United States v. Hayes, __ U.S. __, 129 S.Ct. 1079 (2009), the Supreme Court held that while a domestic relationship between the defendant and the victim of the prior domestic violence crime must be established beyond a reasonable doubt in order to convict a defendant under section 922(g)(9), a domestic relationship need not be an element of the prior conviction. In other words, it interpreted the "has, as an element" language in section 921(a)(33) to apply only to the phrase "the use or attempted use of physical force, or the threatened use of a deadly weapon," and not to the part of [...]