ICYMI 5 Circuit: Ban on 2A Rights by Civil Restraining Order is Unconstitutional

Second Amendment

U.S.A.-(AmmoLand.com)-— In the Fifth Circuit, the entire Court has ruled, en banc, that mere civil restraining orders may not infringe rights protected by the Second Amendment. The unconstitutional infringement was placed into law by the infamous Lautenberg Amendment in 1996. Hundreds of thousands of lives have been turned upside down and ruined by this infamous and unjust law.

In the opinion published by the Fifth Circuit Court of Appeals, Circuit Judge James C. Ho writes a particularly well-argued and presented concurrence. The concurrence is worth reading. It is quoted below, without the footnotes:

James C. Ho, Circuit Judge, concurring:The right to keep and bear arms has long been recognized as a fundamental civil right. See, e.g., Johnson v. Eisentrager, 339 U.S. 763, 784 (1950) (describing the First, Second, Fourth, Fifth, and Sixth Amendments as the “civil-rights Amendments”); Konigsberg v. State Bar of Cal., 366 U.S. 36, 49–50 n.10 (1961). Blackstone saw it as essential to “‘the natural right’”of Englishmen to “‘self-preservation and defence. ”District of Columbia v. Heller, 554 U.S. 570, 593–94 (2008)(quoting 1 William Blackstone, Commentaries on the Laws of England139–40 (1765)). 

But the Second Amendment has too often been denigrated as “a second-class right.”McDonald v. City of Chicago, 561 U.S. 742, 780 (2010). In response, the Supreme Court has called on judges to be more faithful guardians of the text and original meaning of the Second Amendment. See N.Y. State Rifle & Pistol Association, Inc. v. Bruen, 142 S. Ct. 2111 (2022). Our court today dutifully follows the framework recently set forth in N.Y. State Rifle. It recognizes the absence of relevant historical analogues required to support the Government’s position in this case. I am pleased to concur.

I write separately to point out that our Founders firmly believed in the fundamental role of government in protecting citizens against violence,as well as the individual right to keep and bear arms—and that these two principles are not inconsistent but entirely compatible with one another.

Our Founders understood that those who commit or threaten violence against innocent law-abiding citizens may be arrested, convicted, and incarcerated. They knew that arrest and incarceration naturally entails the loss of a wide range of liberties—including the loss of access to arms.

So when the government detains—and thereby disarms—a member of our community, it must do so consistent with the fundamental protections that our Constitution affords to those accused of a crime. For example, the government may detain dangerous criminals, not just after conviction, but also before trial. Pre-trial detention is expressly contemplated by the Excessive Bail Clause and the Speedy Trial Clause. And it no doubt plays a significant role in protecting innocent citizens against violence. See, e.g., United States v. Salerno, 481 U.S. 739, 755 (1987) (permitting“the detention prior to trial of arrestees charged with serious felonies who . . . pose a threat to the safety of individuals or to the community”).

Our laws also contemplate the incarceration of those who criminally threaten, but have not (yet) committed, violence. After all, to the victim, such actions are not only life-threatening—they’re life-altering. See, e.g., United States v. Ackell, 907 F.3d 67 (1st Cir. 2018)(upholding criminal stalking law); United States v. Gonzalez, 905 F.3d 165 (3rd Cir. 2018)(same); United States v. Osinger, 753 F.3d 939 (9th Cir. 2014)(same); United States v. Petrovic, 701 F.3d 849 (8th Cir. 2012)(same); see also People v. Counterman, 497 P.3d 1039 (Colo. Ct. App. 2021) (same), cert. granted, _ U.S. _ (2023).

In sum, our Founders envisioned a nation in which both citizen and sovereign alike play important roles in protecting the innocent against violent criminals. Our decision today is consistent with that vision. I concur.

Judge Ho says what many Constitutionalists have been saying for decades. If a person is too dangerous to have arms, they are too dangerous to be on the streets.  At present, the Biden administration has chosen not to appeal this Fifth Circuit decision to the Supreme Court of the United States.

Fast Forward to March 2023: The Epoc Times reports ‘Biden DOJ Asks Supreme Court to Fast-Track Case That Could Reinstate Federal Gun Ban’

“The U.S. Department of Justice (DOJ) is asking the Supreme Court to overturn an appeals court ruling that struck down a federal law preventing people under domestic violence-related restraining orders from having guns.

The Biden administration asked in its new petition (pdf) for the high court to hear the case on a “highly expedited schedule” because of the “significant disruptive consequences” of the lower court’s ruling. The petition was reportedly filed with the court on March 17th, 2023 but had not been docketed as of press time….”

Opinion:

Many times more people have their rights infringed with a civil restraining order than are ever convicted of domestic violence. People have had their lives destroyed by this evil and unconstitutional law. If you are willing to have your blood pressure raised with pure injustice, read of the case of Tim Emerson, M.D. Emerson was the first federal case since Miller to affirm the Second Amendment as an individual right. However, because of the Lautenberg amendment, Emerson was unjustly convicted, impoverished, jailed, put on a sex offender list, and denied the most basic rights.

This was a decade before the Heller decision when Progressive judges still dominated the courts.


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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BigRed

No one ahould have their rights taken if they are not incarcerated or on parole…

Tionico

Yup. As someone most of us know and love declares: if someone is not able to be trusted in public with a gun, how can he be trusted in public without a qualified custodian?

You are either dangerous or not.

Desert Guy

There is nothing in the Constitution that penalizes its violation by government. Thus, there is no deterrent. Nor punishment.

Courageous Lion - Hear Me Roar - Jus Meum Tuebor

Making it a paper tiger for all intents.

USMC0351Grunt

Try Violation of Oath of Office for beginners… The fourth federal law, 18 U.S.C. 1918 provides penalties for violation of oath office described in 5 U.S.C. 7311 which include: (1) removal from office and; (2) confinement or a fine. The definition of “ advocate ” is further specified in Executive Order 10450 which for the purposes of enforcement supplements 5 U.S.C. 7311.
Violation of Oath of Office and Walker v Members of Congress
http://www.foavc.org/01page/Articles/Violation%20of%20Oath%20of%20Office%2

Henry Bowman

Better late than never! I hope we can all look back at the early 20’s and say this was the golden era of SCOTUS 2A jurisprudence and how we took back our liberty without having ever fired a shot.
Then again, winning every 2A case from now on thanks to Heller/McDonald/Bruen may be the thing that pushes the domestic communist traitors among us into starting a shooting civil war.

Arizona

It will be considered a win for justice when the unconstitutional NFA, GCA & Hughes amendment are all struck down as the infringements they are. The Constitution created the government with distinct and limited powers, none of which authorized the passing of laws restricting gun ownership, banning weapons, limiting citizens to semi autos, assessing cruel and unusual sentencing for those who build, buy or sell suppressors without government “permission” and a tax designed to be exhorbitant, etc.

Courageous Lion - Hear Me Roar - Jus Meum Tuebor
buzzsaw

THIS!
I logged in just to like it.

Tionico

Let them. It will NOT end well for them, as there are more of us, and a more determined us, than of them.
General Gage somehow was silly enough to think his “mighty garrison” of three thousand quartered in people’ homes in Boston were sufficient to control the entire English New World.

Ten years on he found out. They tried again a few decades later, but that failed as well.

Stag

All bans are unconstitutional.

Tionico

A major part of this travesty’s abuses comes with how easy it is for “the courts” to add a new name to the list of “bad people” who “mustn’t have guns”. In some states nearly every divorce lawyer, as a matter of course, will draw up a “restraining order” against the man targetted in the divorce. It goes into the pile of documents for her to sign. Most women are not even aware this is part of her legal action. The target of the action rarely learns of this, as it is often served separately from the divorce itself. Mostly… Read more »

Arny

Do you think it would matter to the woman, if she did know the order was in there ? I don’t think most would care, as long as they get theirs. You may find a unicorn out there, but not likely. Most want to make the mans life as hard as possible. And it cost them Nothing, to do so. I saw this at a early age with friends & relatives. I am going on my 55 th B-day. Single with NO kids. Without financial stability life is hard. And even harder with a mean spirited woman. As this mans… Read more »

Courageous Lion - Hear Me Roar - Jus Meum Tuebor

You can only have your rights infringed upon. How you deal with it is what mattes. In my case I would have ignored the judge and stayed armed and if someone, I don’t give a crap what they were wearing tried to take my arms I would consider that person my enemy and would have dealt with them as such. They can KMA when it comes to my rights.

Courageous Lion - Hear Me Roar - Jus Meum Tuebor

It really is simple. Either you have a PRIVILAGE or you have a RIGHT. RIGHTS cannot be curtailed in any way shape or form. If you are in a cage you have violated some law that hopefully had a victim involved. If you are in a cage and no one was damaged, you shouldn’t be in a cage. Seems to me that COMMUNIST countries have people living in them who have their rights VIOLATED continually in the name of the collective. Maybe, just maybe…Communism- AMERICAN Style!If all 10 planks are in force and effect…is the USA Communist???

Last edited 1 year ago by Courageous Lion - Hear Me Roar - Jus Meum Tuebor
USMC0351Grunt

THAT and the ‘Temporary Custody Orders’ they cajole Fathers into signing, “Just as a formality and only while going through these proceedings.” ALL BS! Where ALL fathers get screwed is that very first custody hearing when asked, “Who is the primary caretaker of the children for the past 6 months.” MOST fathers automatically assume it to be the wife because she watches the children while Dad is at work… WRONG ANSWER! THE FATHER is the Primary Caretaker, the mother only WATCHES the children for those 8-9 hours a day, DADDY is the Primary for the rest of the 15-16 hours… Read more »