http://www.justice.gov/olc/2007/atfmcdv-opinion.pdf" onclick="window.open(this.href);return false;
The “misdemeanor crime of domestic violence” firearms prohibition is the product of two provisions in title 18 of the U.S. Code. Section 922(g) (emphasis added) provides:
It shall be unlawful for any person— .. .
(9) who has been convicted in any court of a misdemeanor crime of domestic violence, to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
Section 921(a)(33)(A) (emphases added) in turn defines a “misdemeanor crime of domestic violence” as:
an offense that—
(i) is a misdemeanor under Federal or State law; and
(ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.
Putting these two provisions together, the prohibition applies, as relevant here, only to a person who (1) has been “convicted” in court, (2) of an “offense,” (3) that “has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon.”1 The application of this prohibition, then, depends upon the “element[s]” of the particular “offense” of which the person was “convicted.” That is, the prohibition turns on the legal definition of the predicate offense of conviction, not on the actual conduct that may have led to the conviction for that offense.
One must determine what the convicting court found, not what the defendant did.