Guns and Protective Orders

Today, the United States Court of Appeals for the 5th Circuit found the federal statute that prohibits the possession of a firearm by someone who is subject to a domestic violence restraining order to be unconstitutional. (USA vs. Rahimi) The basis of this decision is that prohibiting the possession of a firearm is infringing upon the Second Amendment.

Federal statute 18 U.S.C. § 922(g)(8) makes it a crime for a person to ship or transport, possess, or receive any firearm or ammunition if the person is subject to a court order that (a) was issued after a hearing wherein the person received notice and had an opportunity to participate; (b) restrains the person from harassing, stalking, or threatening an intimate partner (or child of an intimate partner) or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and (c) includes a finding that the person is a credible threat to the physical safety of the partner or child or explicitly prohibits the use, attempted use, or threatened use of physical force against the intimate partner or child.

In other words, if the person is subject to a restraining or protective order that protects an intimate partner, that person cannot possess a firearm or ammunition under federal law. The statute operates to deprive an individual of his right to keep and bear arms once a
court finds, after notice and a hearing, that the individual poses a “credible threat” to an intimate partner or her child and enters a restraining order to that effect.

This law and concept has historically been found to be constitutional; however, since the United States Supreme Court’s decision in Bruen, constitutional challenges are finding new footing and invalidating laws such as 18 U.S.C. § 922(g)(8). Bruen is a 2022 decision, that was widely publicized in the media, which expanded the American’s right to bear arms guaranteed by the Second Amendment of the U. S. Constitution. Specifically, Bruen struck down New York’s concealed carry law that required an individual to prove “proper cause” existed before a license would be issued allowing that person to carry a concealed pistol or revolver in public. [NY State Bar Analysis of Bruen] Writing for the Court, Justice Clarence Thomas, held that courts going forward should uphold gun restrictions only if there is a tradition of that restriction in U.S. history.

Today’s decision is especially important to Texans because Texas courts are generally bound by the 5th Circuit’s opinions. The 5th Circuit would handle any appeals from federal district courts in Texas, so if a person where prosecuted under this statute in the District Court for the Southern District of Texas, for example, the district court would find the prosecution invalid because the statute has been found unconstitutional. Additionally, this 5th Circuit opinion can be used to challenge the constitutionality of Texas statutes in state courts which are similar.

The Second Amendment guarantees an individual’s right to keep and bear arms. Because the Constitution protects the conduct [possessing a firearm], the Government bears the burden of justifying its regulation of the conduct by showing it is consistent with the Nation’s historical tradition of firearm regulation. Simply put, in Rahimi, the 5th Circuit found the Government did not meet its burden; the Government did not point to historical precedent for this type of regulation on the right to keep and bear arms. Note, however, the 5th Circuit drew a possible distinction between restraining orders in civil proceedings and criminal proceedings. Because this case involved a civil court proceeding restraining order, the court did not address an order in a criminal proceeding.

Not only does the United States Constitution protect a person’s right to keep and bear arms, but also the Texas Constitution, Article 1, Section 23, provides every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State. Where both the United States and Texas have granted a right, it’s important to understand that the United States Constitution sets the floor, or the minimum, of the right given to the people. States are free to broaden or expand the federal rights, but states cannot further restrict that right provided by the United States.

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