Law Banning Gun Possession Due to Restraining Order is Unconstitutional

Ban on Second Amendment rights by Restraining Order Unconstitutional

U.S.A.-(AmmoLand.com)-– 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 harassing, 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 Amendment.

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 the 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 for 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 as 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 of 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, and it is used to punish those accused with little or no evidence.

It is used in divorce cases, custody cases, and 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)


About Dean Weingarten:

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.

Dean Weingarten

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Ope

This restraining order BS has always reminded me of Red Flag Law to revoke CCW’s and confiscate firearms from law-abiding citizens. No due process involved and unconstitutional as hell. This Trump appointed federal judge upheld the constitution and did what was right.

Matt in Oklahoma

Due Process
It’s not hard to understand

Ledesma

I wonder when they’ll remember to throw in bad credit, divorce and traffic infractions to scrap a citizens 2A rights?

Last edited 2 months ago by Ledesma
Xaun Loc

NY, NJ, and CA already have. They call it “Good Moral Character”

nrringlee

Analysis is correct. I have a student in CA who is a family practice attorney of some note. This former President of her county bar association confirms Dean’s opinion that domestic violence restraining orders are often used as leverage in divorce and especially child custody and property division disputes. Divorce lawyers are now armed with spurious Red Flag Laws in Ca which are an even more effective tool. There is nothing like a criminal conviction for domestic violence to keep creeps under control. Invoking a restraining order should be an immediate, temporary step leading to criminal referral and criminal trial.… Read more »

TStheDeplorable

If restraining orders protected people, cops would wear them instead of body armor. The only protection anyone really has if they fear someone is going to do them harm is to be armed, but the same liberal politicians who passed overly broad laws disarming EVERYONE subject to an ex parte restraining order from courts that virtually never deny restraining order requests have enacted state laws that have “waiting periods” during which people must be unarmed after learning someone is out to kill them.

Tionico

I know for a fact that at least some lawyers handling divorce cases simply fill out the paperwork for a restrining order and add it to the rest of the pile for the acting party to sign. It would seem that most of the time the party signing is not even aware the restraining order was in there. I know personally of one case whereshe filed for divorce was not aware a restrining order was part of the “package”, He moved after papers were filed (of course how often does the he remain in the same house?) and thus never… Read more »

Xaun Loc

Hopefully the US Attorney for that district will be stupid enough to appeal the decision — and hopefully the 5th Circuit will be smart and honest enough to uphold the decision.

Mac

Restraining orders are useless. Criminals don’t care what a judge orders, except for his/her sentence. Unfortunately, our system allows these useless orders to be used as a weapon by the state against the law abiding.

Steve

This is why I am so glad to have married the magnificent woman I proposed to 40 years ago. One of her gifts to me on our 1st anniversary was a Remington 870 Wingmaster 12 gauge pump. Guys, pick your mate carefully and ladies, if he ever threatens you or raises a hand – get out of that relationship. What this judge did was absolutely long overdue and I commend him on making that ruling. The Lautenberg amendment was a piece of legal/legislative garbage reflective of the fiasco that was the Clinton administration.

The other Jim

Yes, guys have to be very careful today. There are a lot of battered husbands. Not just physically, but verbally. The woman today are not the same as 40 years ago; many are very brutal and at animity with God.

Steve

Your last statement “at animity with God” is absolutely right on Jim. The rapid increase in Societal perversions, a rise in mental illness, eating disorders, abuse of drugs and alcohol – a general lack of self respect and respect for others – it can ALL be traced to a steep drop off in Christian education, church attendance and a focus on secular crap. All one has to do is step back, take measure of the rapid rise in the culture of Homosexuality, Lesbianism, the obsession with Abortion, pedophilia – Western Culture is careening down a very dark and deadly tunnel.

The other Jim

Exactly Steve. All of those things are noted in the bible as evil and not to do them. The Lesbian and Homosexual agenda is out of control. In Kings and Chronicles the people suffer and some die for what the leaders do (but doesn’t mean they are bad and go to hell), and the Democrat Leaders are doing very evil. Biden has murdered more people then any president; The fentanyl and 300,000 overdoses he caused, the illegal aliens and deaths caused by some of the evil people he let in that raped, murdered and beheaded woman, the $83,000,000,000 that he… Read more »