“RIGHTS” OR FAVORS FROM A MASTER? Supreme Ct Manipulates 2nd Amendment Test to Disarm People.
The US Supreme Court on Friday upheld a federal law barring gun ownership for individuals who have been subjected to domestic violence restraining orders by a civil court. Under the contested federal law in the case, the government automatically revokes an individual’s 2nd Amendment rights as a direct consequence of a finding that a person might commit a crime in the future. Thereafter, If a person violates the court order the government again automatically revokes their gun rights permanently as a direct consequence, without a hearing. [MORE]. Under Court’s holding, the individual need not be charged or arrested for the dangerous conduct and the judicial finding that ‘a person might commit a crime’ can be made at informal hearings based on hearsay and relaxed evidentiary rules with notice to the individual as the only Due Process protection.
Elites and their media are very pleased with the result.
In 2020, Zackey Rahimi and his ex-girlfriend, C. M., entered into a qualifying civil restraining order. C. M. had requested the order and asserted that Rahimi assaulted her. Because the order found that Rahimi presented a credible threat and prohibited him from using physical force against C. M., the order automatically triggered §922(g)(8)’s firearms ban. A year later, officers discovered firearms in Rahimi’s home. Rahimi pleaded guilty to violating §922(g)(8).
In 2022 the Supreme Court held in NY v Bruen that any law which infringes on an individual’s 2nd Amendment right is presumptively invalid and must be struck unless it is consistent with the nation’s tradition of firearm regulation. A law consistent with the nation’s tradition of firearm regulation ‘is analogous to laws that existed at the time the 2nd Amendment was ratified and is a law that was “well established and representative” at the time.’ Nevertheless, in the new case the court rationalized that because surety laws, which merely fined people for domestic violence, existed at the time of the 2nd Amendment and because laws also existed that provided minor punishment for committing public affrays (violence in public) at the time of the 2nd Amendment, it could therefore uphold the federal domestic violence law as passing Constitutional muster. That is, the Court found traditional surety laws and affrays laws to be analogous to the federal domestic violence law despite the fact that the domestic violence law revokes gun rights permanently and carries felony punishment as opposed to a mere fine provided by surety laws and despite the fact that affrays laws were concerned with public violence/terror, not interpersonal violence such as domestic violence. Despite the lack of similarity to traditional laws existing at the time of the 2nd Amendment, the court inexplicably said the domestic violence passed the Court’s test. In the lone dissent Justice Thomas warned: ‘In short, laws targeting “dangerous” persons led to the Second Amendment. It would be passing strange to permit the Government to resurrect those self-same “dangerous” person laws to chip away at that Amendment’s guarantee.” He wrote,
“This case is not about whether States can disarm people who threaten others. States have a ready mechanism for disarming anyone who uses a firearm to threaten physical violence: criminal prosecution. Most States, including Texas, classify aggravated assault as a felony, punishable by up to 20 years’ imprisonment. See Tex. Penal Code Ann. §§22.02(b), 12.33 (West 2019 and Supp. 2023). Assuming C. M.’s allegations could be proved, Texas could have convicted and imprisoned Rahimi for every one of his alleged acts. Thus, the question before us is not whether Rahimi and others like him can be disarmed consistent with the Second Amendment. Instead, the question is whether the Government can strip the Second Amendment right of anyone subject to a protective order—even if he has never been accused or convicted of a crime. It cannot. The Court and Government do not point to a single historical law revoking a citizen’s Second Amendment right based on possible interpersonal violence. The Government has not borne its burden to prove that §922(g)(8) is consistent with the Second Amendment’s text and historical understanding.“
The law at issue, 18 U. S. C. §922(g)(8) makes it unlawful for an individual who is subject to a civil restraining order to possess firearms or ammunition. To trigger §922(g)(8)’s prohibition, a restraining order must bear three characteristics. First, the order issues after a hearing where the accused “received actual notice” and had “an opportunity to participate.” §922(g)(8)(A). Second, the order restrains the accused from engaging in threatening behavior against an intimate part- ner or child. §922(g)(8)(B). Third, the order has either “a finding that [the accused] represents a credible threat to the physical safety of [an] intimate partner or child,” or an “explici[t] prohibit[ion]” on “the use, attempted use, or threatened use of physical force against [an] intimate part- ner or child.” §922(g)(8)(C). If those three characteristics are present, §922(g)(8) automatically bans the individual subject to the order from possessing “any firearm or ammunition.” §922(g).
Just as important as §922(g)(8)’s express terms is what it leaves unsaid. Section 922(g)(8) does not require a finding that a person has ever committed a crime of domestic violence. It is not triggered by a criminal conviction or a person’s criminal history, unlike other §922(g) subsections. See §§922(g)(1), (9). And, §922(g)(8) does not distinguish contested orders from joint orders—for example, when parties voluntarily enter a no-contact agreement or when both parties seek a restraining order.
In addition, §922(g)(8) strips an individual of his ability to possess firearms and ammunition without any due process. Rather, the ban is an automatic, uncontestable consequence of certain orders. See §922(g) (“It shall be unlawful for any [qualifying] person [to] possess in or affecting commerce, any firearm or ammunition”). There is no hearing or opportunity to be heard on the statute’s applicability, and a court need not decide whether a person should be dis- armed under §922(g)(8). The only process §922(g)(8) re- quires is that provided (or not) for the underlying restraining order.
Despite §922(g)(8)’s broad scope and lack of process, it carries strong penalties. Any violation of §922(g)(8) is a felony punishable by up to 15 years’ imprisonment. §924(a)(8). And, a conviction for violating §922(g)(8) itself triggers a permanent, life-long prohibition on possessing firearms and ammunition. See §922(g)(1).
Thomas stated that the law clearly violated the 2nd Amendment guarantee and the court “cobbled together” so-called “evidence” that the law was consistent with the nations tradition of firearms regulations - as the laws basis cited by the court were not relevant to the statute at issue. Specifically, laws preventing “dangerous persons” from possessing guns were historically aimed at quashing treason and rebellion - not domestic violence. Also affray laws concerned public affrays or crimes in public that terrorize the public. Such laws did not prohibit carry arms in public for self-defense or possessing arms at home. Additionally, although surety laws addressed interpersonal violence, the violation of surety laws did not permanently revoke rights and were not punishable as a felony- they only imposed a civil fine and kept gun rights intact. Thomas explained,
“Critically, a surety demand did not alter an individual’s right to keep and bear arms. After providing sureties, a person kept possession of all his firearms; could purchase additional firearms; and could carry firearms in public and private. Even if he breached the peace, the only penalty was that he and his sureties had to pay a sum of money. To disarm him, the Government would have to take some other action, such as imprisoning him for a crime.”
As such, the court’s historical comparisons used to uphold the law were nonsensical. Justice Thomas stated,
The Court’s contrary approach of mixing and matching historical laws—relying on one law’s burden and another law’s justification—defeats the purpose of a historical in- quiry altogether. Given that imprisonment (which involved disarmament) existed at the founding, the Government can always satisfy this newly minted comparable-burden re- quirement. See ante, at 14–15. That means the Govern- ment need only find a historical law with a comparable jus- tification to validate modern disarmament regimes. As a result, historical laws fining certain behavior could justify completely disarming a person for the same behavior. That is the exact sort of “regulatory blank check” that Bruen warns against and the American people ratified the Second Amendment to preclude. 597 U. S., at 30.
The federal law at issue, 922(g)(8)’s has no requirement that the accused has actually committed a crime; instead, he need only be prohibited from threatening or using force, or pose a “credible threat” to an “intimate partner or child.” §922(g)(8)(C). Section 922(g)(8) thus revokes a person’s Second Amendment right based on the suspicion that he may commit a crime in the future.
In addition, the only process required before that revocation is a hearing on the underlying court order. §922(g)(8)(A). During that civil hearing—which is not even about §922(g)(8)—a person has fewer constitutional protections compared to a criminal prosecution for affray. Gone are the Sixth Amendment’s panoply of rights, including the rights to confront witnesses and have assistance of counsel, as well as the Fifth Amend- ment’s protection against double jeopardy. See Turner v. Rogers, 564 U. S. 431, 441 (2011) (“[T]he Sixth Amendment does not govern civil cases”); Hudson v. United States, 522 U. S. 93, 99 (1997) (“The [Double Jeopardy] Clause protects only against the imposition of multiple criminal punishments for the same offense”). Civil proceedings also do not require proof beyond a reasonable doubt, and some States even set aside the rules of evidence, allowing parties to rely on hearsay. See, e.g., Wash. Rule Evid. 1101(c)(4) (2024) (providing the state rules of evidence “need not be applied” to applications for protection orders (boldface and capitali- zation deleted)); Cal. Civ. Proc. Code Ann. §527.6(i) (West Supp. 2024) (judge “shall receive any testimony that is rel- evant” and issue order based on clear and convincing evi-dence). The differences between criminal prosecutions and civil hearings are numerous and consequential.
