Supreme Court Upholds Law Temporarily Disarming Person Subject to Domestic Violence Restraining Order
SCOTUS: Disarming an individual ‘found by a court to pose a credible threat to the physical safety of another’ is ‘consistent with the Second Amendment.’
The U.S. Supreme Court handed down a landmark Second Amendment decision this morning in a case that pitted the Second Amendment against the interests of domestic violence victims.
The Court held 8–1 in United States v. Rahimi that a law temporarily disarming a person subject to a domestic violence restraining order does not violate the Second Amendment in an opinion written by the Chief Justice.
“When an individual has been found by a court to pose a credible threat to the physical safety of another,” the Court held, “that individual may be temporarily disarmed consistent with the Second Amendment.”
Justices Sotomayor, Gorsuch, Kavanaugh, Barrett, and Jackson wrote concurring opinions. Only Justice Thomas dissented.
Legal Insurrection covered the lower court’s decision and Rahimi’s appeal to the Supreme Court.
The case originated in the Fifth Circuit, invalidating a law prohibiting firearms possession by individuals subject to an order. The lower court found this law violated the Second Amendment right to bear arms.
A family court judge in Texas issued the order against Rahimi and included a finding that “Rahimi had ‘committed family violence,’ and such violence was ‘likely to occur again in the future.'”
The United States, which petitioned the Court to review the Fifth Circuit’s decision, described the circumstances leading to the order:
In December 2019, Rahimi and his girlfriend C.M. had an argument in a parking lot in Arlington, Texas. C.M. tried to leave, but Rahimi grabbed her wrist, knocking her to the ground. He then dragged her back to his car, picked her up, and pushed her inside, causing her to hit her head on the dashboard. Realizing that a bystander had seen him, he retrieved a gun and fired a shot. In the meantime, C.M. escaped the car and fled the scene. Rahimi later called her and threatened to shoot her if she told anyone about the assault. (citations omitted)
The order “prohibited Rahimi from committing family violence and from threatening, harassing, or approaching [the recipient of the order] or her family” and “suspended Rahimi’s handgun license, prohibited him from possessing a firearm, and warned him that possessing a firearm while the order remained in effect may be a federal felony” under the challenged law. The law, 18 U.S.C. § 922(g)(8), provides that
(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 . . . .
* * *
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
Fifth Circuit Background
Rahimi violated § 922(g)(8) by possessing a firearm, and “[t]he [district] court sentenced him to 73 months of imprisonment, to be followed by three years of supervised release.” Rahimi challenged his conviction, arguing the law violated the Second Amendment.
The Fifth Circuit, which previously upheld § 922(g)(8), ruled against Rahimi, who asked the court to reconsider its decision in light of the landmark Supreme Court decision New York State Rifle & Pistol Association, Inc. v. Bruen, which announced a new standard for evaluating gun laws:
[W]hen the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct, and to justify a firearm regulation the government must demonstrate that the regulation is consistent with the Nation’s historical tradition of firearm regulation.
On rehearing Rahimi’s claim, the Fifth Circuit ruled in his favor and struck down § 922(g)(8) after finding no historical analogs to the contested law. The court reached this conclusion despite the government offering historical laws disarming classes of individuals “considered to be dangerous” and “laws under which a person who was found to pose a threat to someone else could bear arms only if he posted a surety.”
MORE TO FOLLOW
The majority found a tradition of disarming individuals ‘who threatened physical harm’
The Chief Justice’s opinion held that from “the founding, our Nation’s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms. As applied to the facts of this case, Section 922(g)(8) fits comfortably within this tradition.”
The majority found historical analogs to the challenged law in surety and “going armed” laws that coexisted with the Second Amendment since its ratification.
“[T]he surety laws could be invoked to prevent all forms of violence, including spousal abuse,” and required posting of a bond that the subject would forfeit if he engaged in violence.
“Importantly for this case, the surety laws also targeted the misuse of firearms,” the majority opinion reads.
“Going armed” laws “prohibited ‘riding or going armed, with dangerous or unusual weapons, [to] terrify[] the good people of the land'” and could subject a violator to “forfeiture of their arms and imprisonment.”
These laws, taken together, established a tradition of disarming individuals “pos[ing] a clear threat of physical violence to another” and were analogous to the challenged law, according to the majority.
Five justices wrote concurrences expounding on their views
Sotomayor’s concurrence, which Justice Kagan joined, challenged Thomas’s dissenting views as threatening “to make the historical inquiry so exacting as to be useless, a too-sensitive alarm that sounds whenever a regulation did not exist in an essentially identical form at the founding.”
Gorsuch wrote to reiterate his view that the Second Amendment “codified a pre-existing right” whose scope today remains the same as it did when the amendment was ratified.
Kavanaugh devoted his concurrence to expounding on “the proper roles of text, history, and precedent in constitutional interpretation.”
Barrett, echoing Gorsuch, stated that “the Second Amendment is not absolute. It codified a pre-existing right, and preexisting limits on that right are part and parcel of it.”
Jackson began by expressing her disagreement with the Court’s Bruen holding, noting that she “would have joined the dissent had [she] been a Member of the Court at that time,” but nonetheless affirming that “Bruen is now binding law.” Jackson then praised the Court’s Rahimi decision for “fairly appl[ying] that precedent.”
Thomas wrote a lengthy dissent criticizing the Court’s finding of historical analogs
“Not a single historical regulation justifies the statute at issue,” Thomas’s dissent begins before moving on to criticize the court for “cobbl[ing] together” two historical laws to find an analogous purpose (preventing domestic violence) and an analogous means (forfeiture of firearms and imprisonment).
“Neither the Court nor the Government identifies a single historical regulation with a comparable burden and justification as §922(g)(8),” Thomas wrote.
Thomas also chastised the majority for relying on “going armed” laws, which governed public conduct, to support the challenged law, which also encompasses firearms possession in the home.
Rahimi opinion:
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Comments
This will be abused to guns from people.
But do they define “credible?” That’s the problem with this.
Courts are not perfect, but they are what we have.
Ask Donald Trump.
One important thing to note, however. There is NO “system” by which another system will be restrained. Our Founders set up a system that did as much as possible to give the people the opportunity to hammer down corruption and keep the system working for them. But, if the people don’t jealously guard those rights, that system, or the ‘public virtue’, then there’s nothing the Constitution or any other set of rules can do about it.
And there is no possible expectation of the people ever doing so, because they have work of their own to do and families to support, while politicians and bureaucrats are paid with tax money to sit in offices all day and do nothing but develop schemes to subvert the power of those other people.
Or “temporary.” Will both parties be similarly disarmed? Will the state be responsible for any harm that occurs to the disarmed person as a result of their disarming?
Is this just tacit admission that a restraining order is as effective as one of those “strongly worded letters” to the WH or elsewhere?
Babysteps to disarmament of civiilans.
Why would both parties need to be disarmed? In this case, the restraining order was placed against one of the parties because that party had demonstrated violence toward the other. Unless you can show the other party was also engaged in violence toward the first, why would they need a restraining order against them?
Two words: Polly Przybyl.
Correct. The problem is not keeping firearms out of violent individuals like the first example although I find it odd that this was the case that went to court as the individual broke several laws including kidnapping, assault and reckless discharge of a weapon. The problem are the numerous “Red Flag” laws that allow anyone to make any wild accusation and based on that gun hating judges removing a firearm from another person with no further proof that any of what is claimed is true.
We all know that women never lie about abuse or threats especially when a divorce is going on. /sarc
Another issue that I see is the time limit on the barrier. If you have to spend $10K to go to court to get a years old restraining order that is no longer relevant lifted, that would amount to a permanent barrier for most Americans. Incidentally, Europe is finding out that knives also kill people pretty effectively.
And trucks.
Im on the fence over issues like this.
Probably the only real concern is cases where malice is involved from the wife and how those are weeded out by a court system biased against men? But otherwise Im struggling to get outraged by this decision.
The wife may have genuine fear.
Perhaps, but we also know that the accusation of domestic violence is also weaponized in many cases.
Been there. Wild accusations with no basis in reality that only stopped when I threatened to report her to the State Licensing Board and her employer. It’s not fun and despite several people knowing me since high school they still looked at me very oddly and believed her. She was a very good actress. What is strange is that a few weeks ago, 30yrs after that, she somehow dug up my wife’s phone number and texted her asking how I was. Wife told her to keep her crazy ass away from us.
BTW, she actually did threaten to have me involuntarily committed and have my firearms taken away which was the straw that broke the camels back for me.
Does the Spouse have any police reports or medical evidence to sustain these allegations? Just b/c I fear that X person MAY in the future commit Y act is zero reasonable basis to do jack squat without any evidence. It is an invitation to make false allegations.
Nor does it pass the common sense test. If Joe Blow is a violent, loose cannon then removing a firearm isn’t gonna stop Joe Blow from kicking in the door and using a baseball bat, a set of Ginsu Knives, a claw hammer or a crowbar to do you in.
Either present sufficient evidence sufficient to lock up them up as a violently deranged person, dangerous to society/themselves or we shouldn’t be in the habit of depriving people of their Constitutional rights.
Courts issuing DV restraining orders don’t care about evidence.
Yes, and the husband can have genuine fear as well.
The chances of the husband being arrested and charged, regardless of who the actual aggressor was, is higher than society and the system wants to admit. Reality is that the default arrestee tends to be the male.
I can understand disarming the aggressor, but I’m not confident in the system properly determining who that is.
Two words: Polly Przybyl.
Woops, posted the wrong comment here. I meant to post:
In acrimonious divorce cases, the wife is often urged by her attorney to allege abuse and take out a restraining order against the husband to fortify her eventual financial position. These orders are routinely granted by judges on the basis of allegation alone, since there is no downside to the judge for doing so, and much potential downside for not doing so. Thus the husband is disarmed entirely due to the allegation of his soon-to-be ex.
Many states have since tightened their rules to ensure the husband is granted a hearing with representation within a designated short time period of the issue of a DV RO against him, but many have not.
Several problems. Henry touched on the main one.
Lets follow the logical progression.
Wife files for divorce. No previous evidence of violence. Her Attorney WILL routinely ask for and usually receive a TRO. Not always but very often. Will that qualify? Maybe not under Federal statute but what about a blue State? If you don’t believe States hostile to 2A will create legislation to do this …you haven’t been paying attention.
Lets say there was a hearing. What is the evidence threshold? We are talking about depriving a person of Constitutional rights based upon predictions of the future behavior; ‘pre crime’. Very bad idea.
Next is the lack of specific application. Why not limit the ability to carry arms in public? IOW no one seizes the firearms and the individual maintains 2A rights and 4A rights for their property and 14th amendment rights to have an actual adjudication based upon criminal evidence standards v some process less than that.
Here the CT has effectively said;
1. Make allegation and a CT will rubber stamp (see how often these are approved v rejected due to low evidence required and general tradition in granting them)
2. Seize firearms
3. Those seized firearms will be catalogued by LEO. Now a list has been made held by gov’t.
4. The impacted person can not effectively defend themselves in their home and are at risk.
5. When/how does he get the decision overturned?
6. Is it a fixed temp time period that automatically expires? How much is that gonna cost if not?
7. What are the criminal penalties for making a false allegation as a legal maneuver for the accuser? Very common tactic in Family law by the way.
8. Will the false allegations impact decisions about that person’s ability/fitness as a Parent? If not why?
9. Who has the ‘eraser’ to expunge the records including the ones LEO made when the allegations are disproved/overturned? Anyone? No one? Why not?
Then there’s the BS red flag laws themselves where a non family member can make the claim. Get PO at the DMV? Use a naughty word that the DMV don’t like? That Govt employee can in some places make a referral that sets this whole thing in motion.
Substitute the 2A with the right to vote or 1A and it becomes far more clear why this is a dangerous decision b/c it didn’t set firm limits. Folks with an agenda or with animus will misuse this ruling.
Somewhere between 3 and 5, the cops “store” his firearms in an oil drum in the wet corner of the PD basement, and whatever he gets back is a bunch of junk. Happened all the time in Massachusetts. Had to get a law passed allowing the owner to surrender his guns to a bonded private warehouse instead… which, of course, he now has to pay for.
And the payments rapidly exceed the value of the firearms.
Exactly the point of the exercise: we’re taking your guns, the only question is how.
My concern is the legal construction. The Afghani was a bad one. He had history with the police. He committed a plenty of crimes for which the legitimate response is confiscation of his weapons: Assault, Brandishing the weapons, and so forth. But the fact that a restraining order was used as a cause is deeply concerning. A judge can hand the things out with no due process. To let a judge use a restraining order to override an enumerated right is disturbing. The witnessed felonies should have been used as the cause for a restraining order.
The issues here are not emergent, they are ancient, they don’t require innovative solutions. Anglo Saxon law has dealt with men brandishing weapons and beating women for a long time. The damage is not to the Afghani but to our legal system.
yeah
in a vacuum that makes perfect sense
REAL LIFE ISNT IN A VACUUM even though leftists do make it ssuck
So now the government has the authority to make BLANKET POLITICAL MOVES as it has already proven against its “enemies” as shown by obama and biden against pro americans
Rahimi is a dangerous man who shouldn’t be allowed to own firearms. In 2019, Rahimi pulled out a gun and fired at a passerby who witnessed him dragging his girlfriend through a parking lot. Months later, after getting into an accident, he repeatedly shot at the other driver. In 2021, he fired several times after a friend’s credit card was declined at a Whataburger burger joint.
True…. but it is the extension of the law… that foot in the door that is the problem. The limits will be tested, not on real crime issues but directly solely to deny rights. Firearms pose a societal “threat” to tyranny…. be it soft or hard. A “free state” poses a threat to those that want and push for a one party authoritarian world. Watch the expansion.
Please explain “the extension of the law”? What do you mean by that?
We also call such a thing a legal precedent…
Then he can be punished under laws that are executed according to “due process”, which means indictment, trial, and conviction. Laws that don’t provide the required “due process” are unconstitutional, no matter whether Rahimi had a 2nd Amendment right to firearms or not.
And, which the federal law requires in this case.
But that’s a hard case that makes bad law. You are arguing a “felon’s veto” against the very real right to life of an entire class of innocent people, such as Polly Przybyl..
Rahimi should be in jail.
Had he been properly charged, sentenced, and jailed for those crimes he would be a felon and thus not allowed to have a weapon in Texas.
Which would have better all the way around.
That being the case, the argument over Red Flag laws is moot. He is a violent person who should have been in prison and not allowed to own a firearm.
then dont allow HIM to own the firearms BASED on the fact that he is a criminal and if that was part of his sentencing to never to be allowed to own a weapon
BUT AGAIN,,,this isnt a ruling in a vacuum
its ABOUT FREEDOM FROM the government for others
So now the government has the authority to make BLANKET POLITICAL MOVES
What you mean “now”?
agree
I do not like this president that a mere accusation can be used to take away people’s rights
Maybe not a president so much as a precedent
With this President, perhaps not so much a precedent.
I think that your original comment was quite accurate considering who is President and who his AG is.
But it’s not a mere accusation. Note the law requires that the restraining order be adjudicated – notice to the accused, and a chance to defend himself.
The adjudication may be corrupt or badly mangled. But the process has to be used (which, ideally, allows for further legal contest if it was mishandled) to get the restraining order.
The guarantee of “due process” is a part and parcel of the right to a trial by jury. Not just any court “process” can be labeled “due process” and satisfy other requirements mandated by the Constitution.
See the quote of the federal law in question, in the post above.
Pardon me if I don’t have any trust at all in the system. It’s not like they have to produce actual evidence of anything
What is the process of such an ajudication? Does it require actually proving anything, or is it simply a rubber-stamp?
……and then reality sets in
and then demands like obamas dear colleague letter to colleges “seeps” in etc etc
wrong ruling on their part
agree–and too broad–too easily enacted by a ” he said, she said ” argument among partners
what’s truly ridiculous is it’s based on the absurd premise that anyone who is angry enough to assault their spouse / children / loved ones and subsequently threaten them with lethal force is going to respect some law or ” court order ” to confiscate / prohibit their possession of a firearm
they’ll choose another weapon while, in the meantime, some court has disarmed an individual on the dubious basis of ” he said, she said, etc ”
ineffective at best and constitutionally invasive / capricious at worst
So what would have the ruling been in 2020 while the riots from the blmplo armies were taking place while all others were in lockdown ???????
this action that the court had to rule on is just another part of the
believe all women movemen,t that is just another set of guerrilla warfare tactics from the leftists
THE GOVERNMENT WONT PUT KNOWN MENTAL PATIENTS into facilities
The government wont take known criminals off the streets
but the will take legally owned weapons away from citizens based on some elses UNPROVEN WORD(S)
UNPROVEN WORD(S)
Facts not in evidence here. Again, the federal law requires an adjudication, not just hearsay. This is NOT a “red flag” law we’re talking about.
The Constitution requires “due process” and provides for a right to trail by jury before any right (to arms, to freedom, or even to one’s life) can be taken. Mere “adjudication” does not satisfy other constitutional requirements.
Did you read the bit quoted from the applicable law?
You might also want to re-look at the actual 5th Amendment (in part):
nor be deprived of life, liberty, or property, without due process of law
There is nothing about juries in that portion. Judicial precedent has held that in cases involving conviction of crimes, a jury may be required. But a temporary restraining order is not a criminal charge – it merely is a legal order to keep one person away from another.
I agree that there are other ways of handling it that might be better “due process”, but they primarily involve putting the person on trial for a crime, for which juries might be reluctant to convict, and thereby allowing the miscreant much more latitude to harm the object of their attention.
Quote from the Cornell Law School’s Legal Information Institute website:
Jury is not one of the requirements.
Also from Cornell Law School (https://www.law.cornell.edu/wex/due_process):
In the Nineteenth Century government was relatively simple, and its actions relatively limited. Most of the time it sought to deprive its citizens of life, liberty or property it did so through criminal law, for which the Bill of Rights explicitly stated quite a few procedures that had to be followed (like the right to a jury trial) — rights that were well understood by lawyers and courts operating in the long traditions of English common law.
Your quote is concerned with “procedural due process.” The quote doesn’t mention “trial by jury” as part of “procedural due process” because the processes it mentions are elements of a trial by jury.
It’s a rule of constitutional interpretation that two parts of the Constitution can’t be interpreted such that they conflict when there exists an interpretation that permits them to be reconciled. Your interpretation of “due process” in the 5th Amendment appears to be in conflict with the guarantee of “trial by jury” in the 6th, when no conflict exists if “trial by jury” is considered one of the “processes” that are “due” to citizens when government attempts to divest them of their lives, liberties, or property.
Hmm. With the kangaroo courts that have been persecuting Pres. Trump, “adjudication” might not seem as reliably unbiased as we used to believe.
No, I’d say he’s right on in his assessment. What, exactly, are they going to prove? It’s accusation and nothing more.
posted above
……and then reality sets in
and then demands like obamas dear colleague letter to colleges “seeps” in etc etc
wrong ruling on their part
part of the obama doctrine in the dear colleague “”””message””””//threat he sent to colleges to
SUSPEND DUE PROCESS when it came to another he said she said scenario
Since the pen is mightier than the sword, this could be expanded to “temporarily” shutting down media for the safety of the public.
This one would seem to be reasonable. Unless you don’t believe a court should be able to restrain conduct absent a prison sentence, this pretty clearly was someone who had done bad things with a gun and was the sort of person who probably shouldn’t have a gun. As long as it was fairly adjudicated and he could offer defense, then I am probably going to nod along.
However, I am interested in Thomas’ dissent.
It is reasonable. It’s just also unconstitutional. Conduct can only be restrained by conviction for crimes (unrestrained conduct being “freedom” by another name). It seems Rahimi had been convicted of crimes by which he could have been (and should have been) already stripped of his right to arms, not by a “domestic violence” law that doesn’t require due process (trial by jury, not merely “adjudication”).
Conduct can only be restrained by conviction for crimes
And there is where you seem to be citing principles not in operation, nor in precedence, nor written out in the Constitution.
Really? “Freedom” means to be unrestrained. Does not the Constitution protect my “freedom”? Do I not have a right to be “unrestrained”? Note that by this I do not mean I can do anything I please without suffering consequences when I commit a crime. But until I commit a crime, I’m supposed to be “free” to do as I wish, while I remain responsible for my actions. Have you become so inured to the restraints government places upon you that you mistake your current condition for “freedom” and think that any process the state creates by which to restrain you is the “due process” you were promised?
Lysander Spooner, when writing about the right to trial by jury, commented that when we were promised the right, we were promised the THING and not merely any thing that the government might create and give the same name. I imagine that his sentiments about “due process of law” were probably identical.
Any lawyer who has practiced family law knows that people going through this process go bat guano crazy. Of course they worry about guns.
On both sides of the table: the accusations might be as vindictive as the potential gun use.
Wrong argument. Don’t use a wrench when you need a screwdriver.
Violation of due process. If he hadn’t been convicted yet of a crime (by which a person may be stripped of any rights, including the right to life), then the process by which he was stripped of his right to arms failed to provide due process.
The federal law in this situation likely has no jurisdiction within the States because Congress has no general jurisdiction over criminal matters (such as domestic violence) within the States. If Congress can make such laws at all, its jurisdiction is limited to federal enclaves and property over which the federal government has (at minimum) concurrent jurisdiction with the State in which the property is located.* (Washington, D. C. and property reserved by the federal government upon the creation of a new state are some of the very few examples of exceptions to this rule.) It is highly unlikely that federal law applies to this situation, the defendant’s criminal acts having occurred entirely within a Union member State, and not on property over which Congress might be exercising what authority it may have over criminal acts.
*I understand there will be violent objections to this. But, riddle me this – if federal law extends to every place within the States, why, when the federal government acquires property within a State, is it necessary for the federal government to negotiate acquisition of criminal jurisdiction over the property? Upon federal insular possessions within the states, there are varying degrees of criminal jurisdiction, from none – proprietary interest only – to “concurrent,” “shared”, or to a complete cession of State jurisdiction and a grant of exclusive jurisdiction to the federal government. For instance, if a federal insular possession is held under a “shared” criminal jurisdiction agreement, the agreement would determine who had the authority to investigate a murder on the property, while under “concurrent” jurisdiction, both the federal and the State government would have criminal jurisdiction over any crime committed on the property. This is a fact. If the federal government’s criminal jurisdiction extends throughout the States, these agreements wouldn’t exist.
This information comes from an obscure Congressional Research Service publication issued in the 1950s. Unfortunately, my copy has long since gone missing, and I have been so far unable to locate it anywhere so am unable to provide an exact title or publication number. (The title was something like “A Report on Federal Jurisdiction Within the States.”) If anyone can provide the complete correct title and or pub number, I’d be much obliged.
The federal law in this situation likely has no jurisdiction within the States because Congress has no general jurisdiction over criminal matters (such as domestic violence) within the States.
Now this I agree with.
Oh, note that the firearm in question, based on that federal law has to be involved in “commerce”. It’s all predicated on the horrific abuse of the “interstate commerce” clause.
Unfortunately, Congress now considers a firearm (and just about any other article of commerce) to remain under its control via the commerce clause merely for having once been in interstate commerce and for its potential to re-enter interstate commerce.
That is correct. The Congress has no police powers to enact criminal law against citizens for certain acts when there are already laws on the state and local books for such acts. (What state does not criminalize domestic violence? What state does not issue protective or restraining orders in DV incidents?) .
When once upon a time certain states did not prosecute acts against certain races, the federal government had to step in because those states violated the constitutional rights of that group. In this case, the state of Texas could step in and order the removal of the gentleman from the residence, issue a restraining order and then arrest him for menacing if he comes near her with a gun. At which point a life prison sentence would seem an appropriate compromise to protect both the partner and the Second Amendment.
The Court got it all wrong.
“why, when the federal government acquires property within a State, is it necessary for the federal government to negotiate acquisition of criminal jurisdiction over the property”
Because it’s not necessary. Sometimes it’s done – concurrent jurisdiction agreements are struck with local/state agencies – but, it’s not required that it’s done. If the federal government believes there’s some compelling interest served by ceding partial, full or concurrent jurisdiction – IOW, it serves the interest of the federal government – it will do just that. But, absent a compelling interest, the federal government isn’t encumbered from exercising absolute jurisdiction over any property that’s there’s.
Having said all that, I still think your central argument is probably correct. But, I think it’s correct mostly on 10A grounds. There’s no authority ceded to the federal government in the Constitution to regulate ‘domestic violence.’ ‘Domestic violence’ isn’t an inherently federal crime; it’s plainly a LOCAL crime. The feds shouldn’t have any authority to investigate it much less punish it. It’s CRAZY how much power our federal courts have allowed the federal government to wrestle from the states.
it’s plainly a LOCAL crime
Ah, but it involved that pernicious “interstate commerce”! So, SLAP! it’s now federal!
It’s CRAZY how much power our federal courts have allowed the federal government to wrestle from the states.
In most cases the states ceded that authority willingly. If it’s at the federal gov’t level, then they can’t be held responsible. “Not our problem. Go yell at DC.”*
(* DC can’t hear you from here. Which is why the centralization of power in our Republic is a bad idea. They’re supposed to be able to hear you loud and clear, and quake in their boots because of it.)
YES! Kidnapping comes to mind. It’s one of the first crimes into which the feds insinuated themselves via the commerce clause, as kidnapping victims are often (but not always!) moved across State lines.
The Congressional Research Service disagrees with you. Congress has no native jurisdiction over crime that occurs within the jurisdiction of a Union member State. Even when it purchases property and erects buildings within a State, Congress must have the State’s permission to exercise its criminal jurisdiction within a building owned by the federal government. This is one of the reasons why a seat of government was created that was outside of the jurisdiction of any State – a place where Congress could sit and have complete territorial jurisdiction without requiring leave from a host State and in which a State could not interfere with Congress own law enforcement within its enclave.
The “conservative” Supreme Court strikes again. No longer do you have to be actually convicted to lose your rights – just get someone somewhere to say you are “dangerous”. We don’t need no stinking’ trials, apparently.
It is a 100% guarantee this will soon be applied to free speech and other basic civil rights.
Actually, if you read the law, it DOES require a trial. It doesn’t necessarily require a jury, but it does require a trial before a judge (with presentation of evidence, including by the defense).
This is NOT due process – not even close! It is a judge deciding all on their own.
Do you not see the deadly danger of this? Did we learn nothing from the Wuflu hysteria and “Fifteen days to slow the spread”? This is a grotesque violation of the Constitution, and shame on the Supreme Court for rubber-stamping this insanity. Nothing good will come of allowing this to stand.
Did you even read the relevant law? It’s NOT a “red flag” law in contention here! It specifically defines that the process has to have “a hearing of which such person received actual notice, and at which such person had an opportunity to participate.” That “participate” means offering a defense, an adversarial presentation. This is NOT a case of the one person complains to the court and the court rubber stamps their complaint and suddenly cops are busting down the door of the guy without any notice.
Other than the fact it’s a federal issue at all, there’s no violation of the Constitution here.
You really don’t understand what you are talking about, do you? It IS a “red flag” law no matter how much the courts gas to the contrary. It is a case where ONE judge decides he gets to deprive someone of their rights based ENTIRELY on how he feels about what the accused will or will not do. This is truly horrifying. Why don’t you see that?
OK, you need to back up and look at your reading comprehension. “Red flag” laws are 1) more general than a TRO, and 2) are complained about specifically BECAUSE they do not provide the accused a right to speak against the action. It’s not just some “Oh, someone said I’m bad” law. GO READ THE LAW IN QUESTION. It is a case that requires an adversarial procedure.
If you’re going to say “Oh, it’s a case where a judge can do what he wants” then you’re going to just have to accuse the entire judicial process and go hide in your cabin and write manifestos. Because that’s true in any non-jury case – you know, like all appeals courts. It’s why we complain so much about an activist judiciary.
By all means if you want to require a jury for every single adjudication at all levels, then do so. I don’t think you’ll actually like the outcome any more than you do this.
But this is NOT a case of “without due process” unless you’re going to go the route of, as I noted above, requiring any restriction on a person to be on the basis of a conviction, sentencing, and imprisonment of a person.
You’re better than this, normally.
Offer a defense like what? Are you just going to go in and point out that the accusation is bullshit and there’s no good defense against bullshit?
Given the Federal docket seems pretty clogged up what’s the timeline for someone to have their trial prior to the deprivation of 2A/4A rights? Surely the Federal Courts ain’t gonna try and pawn these cases off on a Magistrate?
No, we want due process with a a Federal Judge and b/c it ALSO is a deprivation of property (the firearm in question) which is obviously above the threshold amount we want a Jury trial. Federal court docket gonna be full as hell.
Title 18 is the US criminal code. Amendment 6 guarantees the right to trial by jury in all criminal cases. So yes, enforcement of this law requires a trial by jury.
Don’t argue with me, argue with the 6th Amendment.
I have a friend who had the misfortune of going through a horrible divorce with a horrible woman. She falsely accused him attacking her. His defense to this accusation was absolute; he could prove beyond ANY doubt that he didn’t do this thing because he wasn’t even in the country when she alleged it happened. He had taken a red-eye flight on company business when she believed he was still at the apartment he had moved into.
So, when he comes back to the country, he’s immediately arrested as he goes through customs. What a nightmare. What most people don’t realize is these DV protection orders are not criminal in nature. They’re CIVIL, although criminal complaints are frequently filed as well, as there was here. At the hearing where he could challenge the restraining order – with his absolute proof of innocence – he still LOST. Why? Because the judge thought it best ‘not to take any chances.’ This happens every day in courtrooms all across the country. The alleged perp is presumed guilty.
While he managed to get the criminal complaint dismissed reasonably quickly (a few weeks), it took this guy almost four YEARS and $30K in legal fees to finally get his guns back and his name out of the NICS registry. It was a nightmare.
Indeed. Safetyism – the wacko belief that “If it saves just one life life it’s worth it” – is where Constitutional rights and due process go to die. Any evil can be justified if a kook judge decides their feelz about a particular situation is Priority #1.
“If it saves just one life life it’s worth it”
A common claim about gun control laws. However, when a gun control law demonstrably leads to the loss of an innocent life, consideration for that life does not cause the Dems to deviate from their agenda by a single arc-second, demonstrating their “concern” for saving lives is so much BS.
Because the judge thought it best ‘not to take any chances.’
And the real problem here (other than the possible lack of due process under the law quoted above*) is there should be criminal liability connected to that judge’s bald-faced illegal conclusion. That’s where the ire should be focused and remediation attempted.
(* If notice was provided, but he was out of country long enough he was considered to have simply refused to respond, then it would be appropriate “due process.” But, if adequate legal notice was given, it would have involved questions that should have determined he was out of country on business. Then they would just have to wait and suck it up.)
I agree. What really poured salt into his would, the prosecutor (it was LA County), wouldn’t do BUPKIS about the estranged wife’s multiple acts of perjury; she perjured herself in both the civil restrainer order motion as well as the criminal complaint. You have a better chance of finding gold under a rainbow than mendacious estranged women have of being prosecuted for perjury in domestic violence cases. It NEVER happens.
And THAT is a big part of the problem in our judicial system.
We really need to have the ability to call a grand jury as citizens. And perjury in conviction of someone (or adjudication against them) should always be a major felony, IMO.
In theory, you would think he could sue the wife for slander/libel and, at a minimum, all his legal expense?
He did…it was effectively rolled into the divorce settlement, essentially using it as leverage to get a much better settlement. But, the real fight he ended up having was with Los Angeles County and then the state of California. That’s where almost all of that $30K went. This is the part that I think largely goes ignored when discussing these gun confiscation cases. When a state – particularly a state like California – gets an opportunity to confiscate someone’s guns, good luck getting them back because you’re going to need it, even if you’ve prevailed in the civil and criminal cases. He’s an avid hunter & gun collector and the value of that collection was significant. Several/most of his weapons were damaged and a few destroyed. Some of that money also went to getting his named removed from the national gun background check database, something else that can be very difficult, apparently.
This is why I laugh at politicians who talk about the ‘due process protections’ in these laws. It’s absurd. It doesn’t exist, at all.
Who has immunity from perjury? Congressmen on official business and devious chicks seeking restraining orders. Judges hand them out like candy and no prosecutor anywhere will ever prosecute the most blatant, provably
false and malicious statements sworn to under penalty of perjury. Everybody in the system knows this.
About a year after our separation, my wife and I had our real falling out. She tried to get a restraining order on me. I went to the hearing and the judge actually read my response (right there at the bench, took him about 20 minutes). Before even asking questions of my wife, he warned her that he had just read every word I had to say about her request. This caused her to break and admit that her accusations were false. The order was denied and I left the court room while my wife was still running her mouth at the judge.
I went from the court to the assessor’s office and placed a “notice of claim of interest” on our property (which was in her name). She discovered that a few months later when it prevented her from selling the property. Her attorney threatened to sue me for “slander of title.” Too late! The day he issued his threat, my attorney filed my divorce suit against her. (She had told her attorney that we weren’t married! He quit on her, the first of five attorneys to do so.) I subsequently clobbered her in the divorce.
Ain’t nobody effs with me. Ain’t. Nobody.
No law potentially restricting the rights of the general public should be passed or upheld based on the basis of a single case, no matter how egregious.
I see a lot of theory being waved around, here. But, speaking strictly as someone who has looked down the barrel of a gun in the hands of a damn fool, I have to say the most dangerous time in a woman’s life is when she tells a boyfriend or husband that she is leaving. This is a reality.
I also know a man whose wife tried to fake an assault against her, to obtain leverage in a divorce. Fortunately for him, he had nowhere to go but work after meeting with her one evening, and that place of work had good security. At the time she said he’d beaten her, he could prove he was at the office. Had he gone home, he would likely have wound up in jail.
These situations are common in our domestic courts. Further, women are not always the victims in domestic violence situations, and not all skilled liars are women.
As a matter of good policy, I would allow the State to temporarily disarm a person, with an absolute requirement that the weapon be returned to the owner after the dust settles in a divorce, or one of the parties moves more than half a day’s drive away. Some people temporarily lose their sanity during a divorce and do things they would not do under any other circumstance.
Yet another reality is, if the State is ever allowed to disarm people under such a policy, the policy will be abused. I would make the penalty for abuse of a disarmament policy by the State — draconian and personal to those involved.
In my opinion, there is no way such a policy could be written to avoid it being misused or used in bad faith. Still, we have some responsibility to mitigate the harm inherent in these volatile situations.
People get volatile over many everyday occurrences. Someone being fired as one example. Being handed a ‘pink slip’ is similar in many respects to being handed divorce papers. The receiving party is often blindsided. That person has invested a lot of time, energy and effort in the relationship with the employer…. often more time than with a spouse. They have stuck with the employer through lean/bad times and good times just as they have done in their marriage. Going ‘postal’ is a thing. But no one who is getting fired should be presumed as ‘dangerous’ simply b/c some other people were violent in the course of or as a.result of their firing.
Bottom line is we should NEVER deprive, hell we should never have the possibility of depriving a person of their rights and property without clear specific evidence.
If the spouse initiating the divorce has zero evidence, no proof, no police calls, no DV incident calls, no history of unexplained medical injuries/ER visits…. then there isn’t anything other than an unsubstantiated, unreasonable ‘fear’. An emotion is not sufficient basis for a deprivation of rights.
Better would be if both parties in the marriage chose to honor their vows before the Creator, the witness to the marriage, their families, friends and congregation. A successful Marriage is about being disciplined, demonstrating commitment, willingness to sacrifice and providing their Spouse the top three things they need (can’t always give them everything). It is NOT about ‘happiness’ which is an emotion that ebbs and flows over the course of a marriage. Absent the traditional reasons for a divorce/annulment then divorce is IMO a selfish act. This is especially so when children are involved as children of Single Mothers households are at statistical disadvantage in every metric; crime, addiction, incarceration, teen pregnancy, suicide, poverty.
I was recently sent a notification from the NYPD that in order to renew my gun permit, I will now be required to submit proof of completion of the New York State mandated 16-hour classroom instruction and 2-hour live firing training, Affidavit of Cohabitant signed and notarized, safeguard identification of a New York resident and proof of ownership of safe storage consisting of a Bill of Sale and two (2) color photos of the safe storage.
The above requirements plus the fee to renew my gun license will cost me approximately $1,000.
It is clear to me that as a retired law enforcement officer, New York’s additional permitting requirements and their failure to provide LEOSA identification, violate the federal LEOSA law.
New Jersey attempted to this and they were recently overturned by the Third Circuit. (Federal Law Enforcement Officers Association v. Attorney General New Jersey, 2024 WL 607340 (3rd Cir. 2024).
Unfortunately, New York is covered by the Second Circuit.
This is Pennsylvania’s concealed carry process for retired law enforcement:
Retired Law Enforcement (LEOSA) 218 (Blue card) info
“You need to bring your old and new qualification card (blue card), department issued retired ID, driver’s license and a $5 money order made out to the Commonwealth of Pa. LEOSA/218 Cards will be handled on Monday’s (ONLY) between the hours of 0830-1100 AM. No appointment is needed.”
Sad that only one Justice respects the Constitution
This means that the abuser will have to buy a gun from a private seller. Anyone who is a domestic abuser will have no trouble finding a gun for sale. This is similar to the murder is illegal law, how many murders has that stopped?
He’ll get one somewhere, if he really wants one. When govt says “Background checks stopped X number of criminals from buying a gun,” that’s BS. Background checks can stop criminals from buying a gun from a dealer (or a private party in states that have “universal” background checks), but when stopped once and realizing they can’t pass the check, they’ll just get a gun from somewhere/someone else. Background checks are essentially useless and nothing but eyewash.
No it isn’t. F-ers
The road to hell was built upon good intentions.
Now the Supreme Court is saying none of our Rights under the 2nd Amendment are absolute?
Then just what rights do we have?
None.
Whatever happened to ” We find these rights to be self-evident…
These rights were handed down from God… ”
Freedom and Citizenship aren’t for everyone.
There is a requirement of personal responsibility required in order for our Republic to function .
With law enforcement being selective about what they choose to enforce… and then others jumping in and taking obvious political advantage of this, the most outstanding feature I see is intentional manipulation by those with an agenda.