A Poll: Domestic Violence Protective Orders And The Second Amendment.
“Man’s capacity for justice makes democracy possible, but man’s inclination to injustice makes democracy necessary.” (Reinhold Niebuhr)
I’m asking everyone to take the poll below, but before you do let me provide you with some background and 2nd Amendment law as it stands today. It’s about a 4 minute read.
New York law made it a crime to possess any firearm without a license, both inside and outside a person’s home. New York law also required people who wanted to carry a loaded pistol outside their home to obtain an unrestricted license to “have and carry” a concealed “pistol or revolver.” To obtain this license, a person had to prove that “proper cause exists.” A person could satisfy the “proper cause” requirement only by proving they had “a special need for self-protection distinguishable from that of the general community.”
In New York State Rifle & Pistol Association, Inc. v. Bruen 597 U.S. ___ (2022) (Bruen) the Supreme Court overturned these laws and established the “Bruen Test.” Under this test governments can only justify its regulation of firearms if the regulation meets a two-part test:[i]
Courts must determine whether “the Second Amendment’s plain text covers an individual’s conduct.”;
If the conduct falls within the plain text of the 2nd Amendment then the government “must justify its regulation by demonstrating [proving] that it is consistent with the Nation’s historical tradition of firearm regulation.”
So far so good. But then along came a guy named Zackey Rahimi, who by all accounts was less than a model citizen. In a 38-day period (December 1, 2020, to January 7, 2021) Rahimi was involved five shootings in and around Arlington, Texas:
December 1, he fired multiple shots into a ‘customer’s’ residence after selling him drugs;
December 2, he was involved in a car accident and expressed his thoughts on the driving ability of the other driver by shooting at him. He then fled the scene. But he was not finished and returned in a different vehicle and emphasized his displeasure by shooting up the other driver’s car;
December 22, he shot at a constable’s vehicle;
January 7 in protest of his friend’s credit card being declined at a Whataburger restaurant, he fired multiple shots into the air.
Police obtained a warrant and searched Rahimi’s residence where they found a rifle and a pistol. He was also the subject of a civil restraining order issued by a Texas court, which he agreed to, after he was alleged to have assaulted his ex-girlfriend. It is important to remember the protective order was a civil and not criminal matter. At this time Rahimi had not been convicted of any criminal act.
Rahimi was then indicted by a federal grand jury and convicted in federal court for possessing a firearm in violation of 18 USC §922(g)(8). A fair summary of §922(g)(8) is: it’s unlawful for any person to possess a firearm if they are subject to a civil protective order for domestic violence that was issued after an evidentiary hearing. Rahimi agreed to the order so an evidentiary hearing was not required.
Under the new Bruen Test the 5th Circuit overturned the district court’s judgment. The government appealed and the Supreme Court will hear this case during its upcoming term.
If the Supreme court decides US v. Rahimi in strict accordance with the Bruen Test they just adopted in 2022 then the outcome should up to uphold the 5th Circuit’s decision that 18 USC §922(g)(8) is unconstitutional. The other two options are to reject the Bruen Test, which I do not see happening. The third option is to carve out an exception for allegations of domestic violence in which a protective order was issued.
Now that you have the background, time for the poll:
[i] Restoring the Founders’ right to bear arms is a good article on what courts must consider under the Bruen test.