Federal Law Banning Gun Possession because of Restraining Order is Unconstitutional under the Second Amendment

Federal District Judge David  Counts in the Western District of Texas has ruled the controversial federal law banning gun possession by a person who has been served with a restraining order for domestic violence, is unconstitutional under the Second Amendment.

The statute in question is 18 U.S.C. § 922(g)(8). This statute makes it a crime to possess a firearm if the person is subject to a court issued restraining order about domestic violence.  The maximum term of imprisonment for violation of the statue is up to 10 years in prison. The actual wording of 18 U.S.C. §922(g)(8) is this:

(g) It shall be unlawful for any person-

(8) who is subject to a court order that-

(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate; 

(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and 

(C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury;

The person subject to a restraining order alone has not been convicted of any crime.

Restraining orders do not have the protections afforded suspects in an actual trial.  Restraining orders have historically been obtained from judges with little effort.

A restraining order does not show the person restrained is guilty of domestic violence. 

A restraining order shows a judge was willing to accommodate a person who claimed they feared domestic violence, by restraining the accused person from harrassing, threatening, or stalking the person or persons.

Judge Counts, in his opinion, starts with a description of the state of Second Amendment law today: From the opinion:

Before Bruen, the Second Amendment looked like an abandoned cabin in the woods. A knot of vines, weeds, and roots, left unkempt for decades, crawling up the cabin’s sides as if pulling it under the earth. Firearm regulations are that overgrowth. Starting with the Federal Firearms Act in 1938, laws were passed with little—if any—consideration given to their constitutionality. That is, until the Supreme Court intervened in Bruen.

Several appellate courts have upheld the restraining order ban before the Supreme Court decision in Bruen. Those courts used the discredited “collective rights” approach to the Second Amenment.

Judge Counts suggests the entire ban on the possession of firearms by people convicted of domestic violence may be unconstitutional. However, he stops short of that conclusion, ruling only on the precise case before him:

is banning possession of firearms, because of a restraining order showing fear of domestic violence, constitutionally allowed under the Second Amendment?

Judge Counts finds the obvious:

The State has not shown any historical precedent for removing the right to keep and bear arms because of a restraining order for domestic violence. 

Judge Counts concludes with this:

That said, this Court embraces Bruen’s charge. Thus, after sifting through the history above, this Court finds that the Government did not prove that §922(g)(8) aligns with this Nation’s historical tradition of firearm regulation and declines the Government’s invitation to insert its own public policy concerns rather than following Bruen. As a result, the Court holds that § 922(g)(8) is unconstitutional under Bruen’s framework.

Before and after the passage of the controversial Lautenberg Amendment in 1996, many commentators noted several constitutional problems with the law.

• It was the first time a fundamental constitutional right could be removed for a misdemeanor;
• It was the first time a fundamental constitutional right could be removed for a restraining order;
• The amendment punished people for past behavior, thus, it was an ex-post-facto law.

When courts were presented with these arguments, the counterarguments were:

• The Second Amendment is not an individual right;
• People are not being punished for past acts, but acts in the present; if they possess firearms in the present, they are violating the law (this presumes removing a constitutional right is not punishment)

Judge Counts opinion sweeps away those excuses. As Bruen shows the Second Amendment to be a fundamental right on par with the First Amendment, those arguments no longer apply.

The Supreme Court has held a person whose constitutional rights are violated, even for a moment, suffers irreparable harm.

The current argument in support historical analogs for removing the right to keep and bear arms from those convicted of domestic violence is: an act of violence is similar to other acts of violence which are used to remove the right to keep and bear arms for felonies.

Opinion:

This correspondent has seen the Lautenberg Amendment, especially the restraining order section, used as a cudgel by attorneys in many cases.

Often, its use has little to do with actual domestic violence.

It is used to punish those accused with little or no evidence.

It is used in divorce cases, custody cases, even in contrived “domestic violence” cases.

The purpose is to dishearten the accused and to make it more difficult to muster the resources for an effective defense.

Many attorneys, in divorce cases, insist that a request for a restraining order be filed, in order to take the case.

Removal of fundamental constitutional rights for a mere restraining order is an outrage to the Constitution and the rule of law.

Domestic homicides were on a steep downward trend before the Lautenberg Amendment was passed.

After it was passed, the number of domestic homicides leveled off.  (FBI -UCR)

©2022 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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