A federal law that prohibits people subject to domestic violence restraining orders from possessing firearms is unconstitutional, a conservative-leaning appeals court ruled Thursday. The ruling is the latest significant decision dismantling a gun restriction in the wake of the Supreme Court’s expansion of Second Amendment rights last year in the New York State Rifle & Pistol Association, Inc. v. Bruen decision. The 5th US Circuit Court of Appeals said that the federal law targeting those believed to pose a domestic violence threat could not stand under the Bruen test, which requires that gun laws have a historical analogy to the firearm regulations in place at the time of the Constitution’s framing. A federal law that prohibits people subject to domestic violence restraining orders from possessing firearms is unconstitutional, a conservative-leaning appeals court ruled Thursday.

The ruling is the latest significant decision dismantling a gun restriction in the wake of the Supreme Court’s expansion of Second Amendment rights last year in the New York State Rifle & Pistol Association, Inc. v. Bruen decision. The 5th US Circuit Court of Appeals said that the federal law targeting those believed to pose a domestic violence threat could not stand under the Bruen test, which requires that gun laws have a historical analogy to the firearm regulations in place at the time of the Constitution’s framing. “Through that lens, we conclude that (the law’s) ban on possession of firearms is an ‘outlier’ that our ancestors would never have accepted,” the 5th Circuit said.

The Justice Department did not specify its next step in seeking review of the ruling, which could include asking the 5th US Circuit Court of Appeals for an en banc rehearing by all the judges on the court, or asking the US Supreme Court to take up an appeal. The court’s opinion was written by Judge Cory Todd Wilson, who was appointed by former President Donald Trump. He was joined by Reagan-appointee Judge Edith Jones and Judge James Ho, another Trump appointee who also wrote a concurrence. The 5th Circuit panel was not persuaded by the historical parallels put forward by the US Justice Department, which was defending the conviction of a person who possessed a firearm while under a domestic violence restraining order that had been imposed after he was accused of assaulting his ex-girlfriend. The Justice Department argued that the domestic violence law was analogous to 17th-and 18th century regulations that disarmed “dangerous” persons.

The defendant challenging his conviction, Zackey Rahimi, had lost in an earlier round before the 5th Circuit, before the Supreme Court issued its Bruen ruling last year. The previous 5th Circuit opinion was withdrawn after the Bruen decision was handed down, and the appeals court did another round of briefing directed at the new test.

https://www.cnn.com/2023/02/02/politics ... index.html

Chuck Michel, president of the California Rifle and Pistol Association, said the problem with laws like the one the federal appeals court struck down is that they are too broad and don’t take into account the details of each case. He offered as an example a client of his whose neighbor filed a restraining order against them because they had pointed a security camera on their property. “They lost their gun rights,” he said. “When they do a blanket prohibition without considering individualized circumstances, they shoot the dogs with the wolves.”

https://www.politico.com/news/2023/02/0 ... w-00081053

Here's the decision:

https://assets.nationbuilder.com/firear ... pinion.pdf

These are the opening sentences:

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, 142 S. Ct. 2111 (2022), it is not.

Discuss in laudable.

CDFingers

Sounds like this 3 judge panel considers domestic violence restraining orders, as a whole, to be unconstitutional.

I suppose that could be rationalized under "Due Process" requirements, but only if they DO consider the Constitution to be a "suicide pact". OTOH, a DVRO, when issued by a judge according to definable standards, could, alternatively, be considered "Due Process".

But did this panel think that deeply, or just say "RKBA is absolute!"

Good thoughts, YT. I'll need to read the opinion at some point, thanks for posting it, CDFingers.

Due process is important. So is reigning in domestic violence which often leads to domestic homicide. One wonders, where does root cause intersect here? This feels icky and awful. But is it legally correct? Dunno.

Here is Beau dissing originalism and the strict constructionist mindset with respect to this ruling.

.

CDFingers

The section of the US Code appears on the ATF 4473 form we sign.

18 U.S.C. § 922(g)(8)

(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; or

From the opinion:

The Government fails to demonstrate that § 922(g)(8)’s restriction of
the Second Amendment right fits within our Nation’s historical tradition of
firearm regulation. The Government’s proffered analogues falter under one
or both of the metrics the Supreme Court articulated in Bruen as the baseline
for measuring “relevantly similar” analogues: “how and why the regulations
burden a law-abiding citizen’s right to armed self-defense.” Id. As a result,
§ 922(g)(8) falls outside the class of firearm regulations countenanced by the
Second Amendment.

Doubtless, 18 U.S.C. § 922(g)(8) embodies salutary policy goals
meant to protect vulnerable people in our society. Weighing those policy
goals’ merits through the sort of means-end scrutiny our prior precedent
indulged, we previously concluded that the societal benefits of § 922(g)(8)
outweighed its burden on Rahimi’s Second Amendment rights. But Bruen
forecloses any such analysis in favor of a historical analogical inquiry into the
scope of the allowable burden on the Second Amendment right. Through
that lens, we conclude that § 922(g)(8)’s ban on possession of firearms is an
“outlier[] that our ancestors would never have accepted.” Id. Therefore,
the statute is unconstitutional, and Rahimi’s conviction under that statute
must be vacated.

The 5th Circuit panel ruling only applies to the federal law, but if upheld state laws could also be challenged. Intimate Partner Violence isn't just a female problem, these stats are from the CDC which is probably closer to the real numbers, instead of the stats by Everytown, Giffords and other advocacy groups. Still not quite sure of the CDC numbers.

About 41% of women and 26% of men experienced contact sexual violence, physical violence, and/or stalking by an intimate partner and reported an intimate partner violence-related impact during their lifetime. Injury, posttraumatic stress disorder (PTSD) symptoms, concern for safety, fear, needing help from law enforcement, and missing at least one day of work are common impacts reported. Over 61 million women and 53 million men have experienced psychological aggression by an intimate partner in their lifetime.

https://www.cdc.gov/violenceprevention/ ... tfact.html

DOJ will have to decide if it's going to appeal to the full 5th Circuit (en banc) or to SCOTUS.


Since Bruen a lot of federal laws are being examined, remember an earlier case where a Texas federal judge overturned a federal law that said felons under indictment can't obtain firearms. An indictment isn't a conviction.
https://www.texastribune.org/2022/09/19 ... ndictment/

I really don't like the idea of gun rights being suspended simply based on probable cause.

Jondoe541 wrote: Fri Feb 03, 2023 10:12 pm I really don't like the idea of gun rights being suspended simply based on probable cause.

Also consider that in many jurisdictions, the accused has no right to council as it's a civil case.

Yup there is no right to counsel in a civil trial, only in criminal trials where the defendant can be imprisoned and even executed.

highdesert wrote: Mon Feb 06, 2023 11:32 am Yup there is no right to counsel in a civil trial, only in criminal trials where the defendant can be imprisoned and even executed.

Pretty shitty considering a right can be taken.

Perhaps DV needs to be in criminal court.

Jondoe541 wrote: Fri Feb 03, 2023 10:12 pm I really don't like the idea of gun rights being suspended simply based on probable cause.

Many 'rights' are suspended using 'probable cause'...like the search of your house or car w/o a warrant.."I smell marijuana, step out of the car'...

YankeeTarheel wrote: Tue Feb 07, 2023 7:07 am Perhaps DV needs to be in criminal court.

Assault by any other name... It probably should be.

This is a good explanation of our complicated judicial system.

Overview of Civil vs. Criminal Law
The legal system is divided into two areas: civil law and criminal law. Separate courts govern (control) these two areas of the law.

One of the most confusing things about the legal system is the difference between civil cases and criminal cases. In domestic violence situations, there may be both civil and criminal cases occurring at the same time as a result of the same violent act. You may want to pursue both civil and criminal actions for maximum protection. The major differences have to do with who takes the case to court and the reason for the case.

Civil Law
In a civil domestic violence action, you are asking the court to protect you from the person abusing you. You are not asking the court to send that person to jail for committing a crime. However, if the abuser violates the civil court order, he may be sent to jail for the violation. In a civil case, you are the person bringing the case against the abuser and (in most circumstances), you have the right to withdraw (drop) the case if you want to. The restraining orders in every state that we refer to in the Know the Laws section are under the civil law system.

Criminal Law
The criminal law system handles all cases that involve violations of criminal law such as harassment, assault, murder, theft, etc. A criminal complaint involves your abuser being charged with a crime. In a criminal case, the prosecutor (also called the district attorney) is the one who has control over whether the case against the abuser continues or not. It is the county/state who has brought the case against the abuser, not the victim. It is possible that if you do not want the case to continue (if you do not want to “press charges”), the prosecutor might decide to drop the criminal charges but this is not necessarily true. The prosecutor can also continue to prosecute the abuser against your wishes and could even issue a subpoena (a court order) to force you to testify at the trial.

https://www.womenslaw.org/laws/preparin ... iminal-law

The victims of domestic abuse are mostly female, but many are male.

In an opinion that sent shock waves through gun control and domestic violence advocacy circles, the 5th U.S. Circuit Court of Appeals ruled last week that the Second Amendment allows people under protective orders for committing domestic violence to keep their guns.

In the span of a month during the winter of 2020, Zackey Rahimi was involved in five shootings around Arlington, according to court documents. He shot at someone’s house after selling them prescription narcotics. After getting into a car accident, he shot at a car, returned in another vehicle and shot at the car again. Three days before Christmas, he shot at a constable’s car. And after New Year’s, he fired shots into the air outside a Whataburger after his friend’s credit card was declined.

During all these incidents, Rahimi was not supposed to have guns, one restriction of a protective order issued in February 2020 after he allegedly assaulted his girlfriend. When police officers executed a search warrant in connection with Rahimi’s alleged shooting spree, they found a handgun and a rifle — which violated both state and federal law. Rahimi was indicted by a federal grand jury for possession of a firearm while under a domestic violence restraining order.

Rahimi argued in court that the charge violated his constitutional rights, and the courts initially disagreed. But in the wake of a landmark 2022 ruling in New York State Rifle & Pistol Association v. Bruen, in which the U.S. Supreme Court established a new standard that modern gun control laws must be “consistent with the Second Amendment’s text and historical understanding,” Rahimi’s case was reheard, and the 5th Circuit, in an opinion authored by Donald Trump appointee Cory T. Wilson, agreed that Rahimi’s rights were violated when law enforcement disarmed him due to the protective order.

“Rahimi, while hardly a model citizen, is nonetheless part of the political community entitled to the Second Amendment’s guarantees, all other things equal,” Wilson wrote in the ruling.

Full article:https://www.texastribune.org/2023/02/09 ... amendment/

So this person not only under protective order is selling drugs and shooting at other people, but the 5th Circuit Court said he should keep his guns, because it is his right under the Second Amendment. Domestic Violence cases should be a felony and a trial by jury. DUI drivers cans can lose their license to dive due to their endangerment to public safety. The rights are not absolute, this has been ruled may times by the SCOTUS. . As an example the right of free speech, guaranteed under the first amendment, does not give you the right to yell fire in a crowded theater or cause other acts that endanger public safety. Just like the right to buy and own a gun is not absolute, check the wrong box on the Form 4473 and you won't be able to legally buy a gun. But that might change with this ruling y the 5h Circuit Court. So we can see all the Gangbangers and other nefarious individuals will be able to buy guns because, "it is my right".

I posted this on the other thread as well, but I think it is appropriate to repost here:

In deciding that case, the Supreme Court found that when courts are evaluating challenges to gun laws, they must ask first whether the conduct being regulated is covered by the text of the Second Amendment, which guarantees the right to bear arms. If it is, they must then consider whether the regulation aligns with the nation’s historical tradition of regulating firearms.

In dismissing the possession charge against Combs, Reeves found that he had not been shown a “comparable historical analogue” to the law prohibiting gun possession by those with a domestic violence order against them.

Combs’ attorney, Thomas Lyons, said that though Combs was “pleased with the dismissal of the charge,” the ruling should not be viewed as “an endorsement for people to have guns when they have a domestic violence order in place.”

“Judge Reeves is obligated by his oath of office to do justice impartially, and to follow the law as pronounced by the Supreme Court,” Lyons said in an email. “This is the essence of the rule of law. I am confident Judge Reeves takes that oath seriously.”

Read more at: https://www.kentucky.com/news/state/ken ... rylink=cpy

If we stick to originalism, we cannot respond to changing conditions. If domestic violence laws per se did not exist back in 1789, the we are screwn with the SCOTUS using originalism. I mean, cars did not exist back then, so all traffic laws are null and void? I'm not in favor of originalism.

What do you all think about that?

CDFingers

The basic premise behind rights do not really change. Trying to use the excuse that conditions have changed by “x” and we now need to limit a right is a cop out. It’s better to keep the intent and purpose of a right to what it was intended and address the underlying issue. Sounds boring, perhaps that’s originalism and I don’t think it’s a bad idea. If you change a fundamental premise you eventually end up in a place far away from what was intended. Perhaps a right becomes a privilege. I’m not for that.

If we embrace originalism, we cannot make laws that respond to changing conditions. I don't think "rights" and "originalism" have much relationship, one to the other. We do not have a "right" to drive, yet we can make laws surrounding driving. That means that originalism is bunk. Yet the current SCOTUS, in their anachronistic view of government, embraces originalism in an effort to support White Christian Nationalism which, we now know, will result in fascism. I do not agree, and I want those appointed by the tainted orange spirochete to be kicked off the Court and new Justices appointed to be confirmed by the Senate.

But I want more than is good for me, feeding my impatience rather than my logical approach to governing. I suppose sometimes it'll be that way.

CDFingers

To play devil's advocate, we always question studies done by and paid for by tobacco companies, oil companies, drug companies, banks and financial institutions so why not question studies done on this topic. Looking at domestic violence studies, a large amount of the research on guns and DV appears to have been done by or financed by DV advocacy groups or the usual anti-gun groups like Everytown, Giffords...

To reverse the CDC stats (quoted above), 59% of females did not experience contact violence, physical violence or stalking and 74% of males did not experience it. Sorenson of UPenn looked at intimate partner violence in Philadelphia for the year 2013.

Of the 35,413 incidents, 6,573 involved hands, fists, or feet, and 1,866 involved external weapons of which 576 were guns.

So only 1.63% involved guns. This is one study and one city, and it should be replicated in other cities and states for full validity by objective researchers. Many times people make decisions on a topic because it intuitively feels correct, they just know it's right.
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5361762/

We'll see what either an en banc panel or SCOTUS have to say on this 5th Circuit decision. Maybe it comes down to the federal law was too broad as Chuck Michel said above and a narrower law would pass judicial scrutiny.

highdesert wrote: Fri Feb 03, 2023 6:21 am

Chuck Michel, president of the California Rifle and Pistol Association, said the problem with laws like the one the federal appeals court struck down is that they are too broad and don’t take into account the details of each case. He offered as an example a client of his whose neighbor filed a restraining order against them because they had pointed a security camera on their property. “They lost their gun rights,” he said. “When they do a blanket prohibition without considering individualized circumstances, they shoot the dogs with the wolves.”

https://www.politico.com/news/2023/02/0 ... w-00081053

That sounds like a bizarre, improbable, and not entirely credible application of a DV/TRO -- what fuckwit judge would sign off on that?! I'll bet Michel is paraphrasing and misrepresenting a much more complicated story-- or the judge who granted this was the complainant's uncle or something.

To me, the more serious problem is the 'race to the courthouse' scenario, particularly common in LGBTQ domestic terrorism, though it shows up in PLENTY of hetero IPV scenarios: The aggressor realizes the survivor is about to go for the RO, and goes to law enforcement first, gaslighting the judge into believing that the survivor is actually the aggressor, and the court takes away the survivor's firearms. It can really be challenging sometimes telling the aggressor and survivor apart. Experienced clinicians with a quarter century or more of experience still sometimes make mistakes. The most dangerous aggressors are often charming and likeable-- that's even part of a good assessment protocol. If the clinician finds they find the survivor witty, friendly, and likeable for no good reason? Get a second opinion. Maybe they're not the survivor at all.

Still, I think the solution is to do the DV/TRO right, and do the confiscation (and potential return) right. LGS's are set up to store guns, and they could play a role here: Surrender the weapon to an LGS, who would charge a fee and process paperwork from the court to return the weapon if/when needed, so law enforcement time is not used for more busywork.

As we were saying, this all takes trial and error and hard work. I have seen situations where this all got done without a lot of paperwork, too-- where cops showed up and said, "Hey, we have an allegation you made a threat, we'd like you to surrender your guns and knives to a relative temporarily for safekeeping," and my client said, "Sure." The allegation was total BS, client got his weapons back later. No judges involved, it was like a 1945 small-town police department intervention in a 2015 Los Angele suburb.


* * * * *

On a broader note, I think the court's Bruen strategy is stupid and short-sighted as well as kind of ridiculous, though that's only a hunch. If the Bruen precedent (or whatever) gets thrown out by a different Supreme Court later, expect the pendulum to swing the other way, and more onerous restrictions to follow. Hope I'm wrong about that.

High Desert, just saw your post. That's a valid point-- there's a lot of good research done by DV advocacy groups, but plenty of BS mixed in with it as well. The statistic I'd like to see, and that we'll probably never know: How many people get their firearms taken due to junk or gaslight ROs, and who can't recover them in a timely fashion? My guess is, not very many-- but I can't claim that I just know that's correct because I just know it. I don't.

Right, so those with little to no income or limited would lose their guns when they can’t afford the mounting storage fees. Sounds like a privileged position to me. No thanks. There has to be a way to address protecting rights and not jumping on the confiscation train. Address the underlying causes, use existing laws to get violent individuals either off the streets or restraining orders as needed and allow victims access to the tools they need for self defense. As noted before if a law is written in a way to give due process and protect the rights of all, I’m for it. I’m pretty sure there are cases where innocent people have been wrongly accused and have had restraining orders and such imposed. That should not happen either.

I’m hoping these comments will clear up some confusion above:
1. Several commented that domestic violence should be in criminal rather than civil court. It’s actually in both, as well as (in some states) family court. Domestic assault or some variation is in criminal court and a conviction for whatever the state’s felony version of it is (usually “aggravated domestic assault”) will result in a felony record. There are also civil causes of action that an ex-spouse or partner might bring to recover damages for battery. That’s civil court. Finally, there are requests from abuse prevention orders, under various names, which are civil actions and depending on the state, sometimes in family court.

2. Someone above mentioned probably cause as “I smell marijuana, step out of the car.” Actually the standard for that is “reasonable and articulable suspicion of unlawful activity,“ which is a lower standard than probable cause.

Hope this helps. That fifth circuit decision definitely sparks some controversy.

To the comment above about LGSs handling the storage for a fee, I believe there are some states where the state foots the bill and the affected person just has to put their guns in storage. Not sure yet how I feel about it yet, but strikes me as better than the police storing the guns (and mistreating or losing them), and also better than making the affected person, who may well be innocent, bear the cost of the imposition.

Also if this sets a precedent then the court going back to their idea of original intent, could look and rule on other decisions that had already been made, such as Miranda, Brown, and other decisions that were controversial at the time of the ruling. especially those the rightwing would love to see reversed. We have already seen Roe V Wade gutted. Heck if we took the idea of the original intent and historical precedent to the extremes, there would be no women or blacks serving on the courts.

Don't worry about domestic violence, because it is okay for a husband to correct his wife by using a cane or switch for correction. But only if it is not bigger around than the wedding ring he wears.

It was only within my lifetime that a woman and a black man was appoint to the SCOTUS.

Nobody convicted of a violent crime should be allowed to possess a gun.