The Second Amendment to the US Constitution affirms the right to keep and bear arms, but legislators and judges have over the years carved out an expanding list of groups for whom no such right exists. Thanks to the Supreme Court’s ruling in New York State Rifle & Pistol Association, Inc. v. Bruen, however, that list is being re-evaluated. The Fifth Circuit Court of Appeals, for example, recently overturned a federal law prohibiting anyone under domestic violence restraining orders from possessing firearms. But Biden’s anti-gun attorney general, Merrick Garland, isn’t satisfied with that result. He asked the High Court to examine the case and decide, as he has, that the prohibition is constitutional and should be reinstated.
Domestic Violence vs the Right to Be Armed
The specific case in question is United States v. Zackey Rahimi. Police found a rifle and a pistol in Rahimi’s home after he was restrained by a civil protective order from harassing, stalking, or threatening his ex-girlfriend and their child. The order also prohibited him from having guns. Rahimi pleaded guilty to the illegal possession, but then challenged the indictment, arguing that the law stripping him of his rights was unconstitutional. He lost the initial appeal, but then succeeded at the Fifth Circuit.
As Gun Owners of America spokesman Erich Pratt told Liberty Nation Legal Affairs Editor Scott D. Cosenza, Esq. in February, the prohibiting law is no longer valid in the Fifth Circuit – Texas, Louisiana, and Mississippi – because it “purports to revoke Second Amendment rights without prosecution and conviction of a crime.” He called it “obviously unconstitutional” and hoped the Supreme Court would concur.
No Conviction? No Problem!
Cosenza explained that Rahimi might be precisely the sort of person society wouldn’t want to have a gun, but that whether the guy was the mean hombre he’s accused of being isn’t the issue. Judge Cory Wilson, a Trump appointee, wrote in the court opinion:
“The question presented in this case is not whether prohibiting the possession of firearms by someone subject to a domestic violence restraining order is a laudable policy goal. The question is whether 18 U.S.C. § 922(g)(8), a specific statute that does so, is constitutional under the Second Amendment of the United States Constitution. In the light of N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, it is not.”
This story takes place in Texas. Title 1, Chapter 7B of the Texas Code of Criminal Procedure states that a protective order will be granted if “the court finds that there are reasonable grounds to believe that the applicant is the victim of sexual assault or abuse, stalking, or trafficking.” Such an order defaults to two years if no end date is specified, but they can be made to last the entire remaining life of the alleged victim or abuser. The protective order fact page for Bexar County, TX, clarifies that a temporary ex-parte order goes into effect immediately, even before the hearing. Ex-parte, of course, in the legal sense simply means that it can be done without a response from the other side.
(Photo by Kevin Dietsch/Getty Images)
As Cosenza points out, it’s a problem of the legal burden of proof. “Beyond a reasonable doubt is the criminal standard required,” he wrote. “versus a preponderance of the evidence, often called ‘more likely than not,’ for civil orders.” One might be slapped with such an order – justly or otherwise – without warning, without being formally indicted (forget convicted) of an actual crime, and at least temporarily without even a chance to appear before a judge. Never mind the citizen jury and stricter burden of proof that comes with criminal cases.
Attorney General Merrick Garland condemned the Fifth Circuit’s opinion the day it was released, saying: “Whether analyzed through the lens of Supreme Court precedent, or of the text, history, and tradition of the Second Amendment, that statute is constitutional.” That he would advocate for disarming citizens without due process – or, rather, for redefining what constitutes said due process – is hardly surprising. The question is whether he can convince the Supreme Court to take up the case and give him what he wants: gun confiscation without criminal conviction.
