Due Process Demands Stricter Standards for Restraining Orders That Negate Gun Rights

In an upcoming Supreme Court case, the Cato Institute argues that the "threadbare procedures" required by federal law provide inadequate protection for constitutional rights.

Since 1994, federal law has prohibited gun possession by people who are subject to domestic violence restraining orders. Although that provision may seem like a commonsensical safeguard, the U.S. Court of Appeals for the 5th Circuit ruled last February that it was not "consistent with this Nation's historical tradition of firearm regulation"—the constitutional test prescribed by the U.S. Supreme Court's 2022 ruling in New York State Rifle & Pistol Association v. Bruen. On Tuesday, in United States v. Rahimi, the Supreme Court will consider whether the 5th Circuit was right about that.

Rahimi is primarily about the contours of the right to keep and bear arms as it was traditionally understood. But a Cato Institute brief notes that the case also raises the question of what due process requires when the government seeks to deprive someone of that right.

Under 18 USC 922(g)(8), which Congress approved as part of the Violent Crime Control and Law Enforcement Act of 1994, it is a felony, currently punishable by up to 15 years in prison, for someone to possess or receive a firearm when he is subject to a court order that restrains him from "harassing, stalking, or threatening an intimate partner" or the partner's child or from "engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury" to the partner or the partner's child. The order must be preceded by a hearing of which the respondent "received actual notice," and it must include either a finding that the respondent poses "a credible threat" or language that "prohibits the use, attempted use, or threatened use of physical force" that "would reasonably be expected to cause bodily injury."

To issue an order, in other words, a judge need not conclude that the respondent actually poses a threat. To trigger the loss of gun rights, the order need only include boilerplate regarding the use of force. And as 5th Circuit Judge James C. Ho noted in his concurring opinion last February, orders that include such language are "often used as a tactical device in divorce proceedings," "are granted to virtually all who apply," are "a tempting target for abuse," and in some cases have been used to disarm the victims of domestic violence, leaving them "in greater danger than before."

Are the procedural protections specified by Section 922(g)(8) enough to guarantee the "due process" that the Fifth Amendment demands before someone can be "deprived of life, liberty, or property"? The Cato Institute, joined by the Goldwater Institute, thinks not.

When Congress enacted this provision, the Cato brief notes, the Supreme Court had not yet recognized that the Second Amendment protects an individual right to arms, which happened 14 years later in District of Columbia v. Heller. "The bare-bones framework for dispossession upon issuance of a domestic violence restraining order set forth in § 922(g)(8) evinces a legislative perception that the stakes for the gun owner are negligible and that the amount of process required to extinguish his Second Amendment rights is correspondingly minimal," Cato says. "Thus, all that § 922(g)(8) requires is notice of the proceeding and an opportunity to participate, together with either an express finding of dangerousness or an explicit prohibition of the use or threatened use of force against an intimate partner or child."

Now that armed self-defense has been recognized as an interest on par with other constitutional rights, Cato argues, due process clearly requires more. Currently, federal law does not require notice to the target of an order that it will deprive him of his Second Amendment rights, which he may not realize. That information is important, Cato says, because a respondent might not be inclined to contest an order that he thinks will merely forbid conduct that is "already unlawful (physically assaulting another person)" or "at the very least unethical (harassing, stalking, or threatening an intimate partner or their child)."

Respondents may also surmise, based on judges' readiness to issue protective orders "to virtually all who apply," that challenging them would be futile or worse. Cato notes that respondents have no right to be represented by an attorney if they cannot afford one and may end up having to pay the other side's legal fees. In Texas, where this case originated, that obligation goes only one way: Fees are shifted to the respondents if they lose, but respondents cannot recover their fees in the (unlikely) event that they prevail.

Section 922(g)(8) not only does not require a finding that respondents are dangerous. It also does not specify a standard of proof to establish that optional element. In most states, a "preponderance of evidence" is enough, meaning the proposition is more likely than not to be true. In the context of terminating parental rights, by contrast, the Supreme Court has held that a higher standard is required: "clear and convincing evidence."

Congress can address these deficiencies by amending the law. While the Supreme Court need not specify how that should be done, Cato says, the justices should recognize that the current procedural protections are inadequate when a "fundamental right" is at stake.

Section 922(g)(8) is "both historically anomalous and legally deficient in failing to ensure an adequate measure of procedural due process," the brief says. "The threadbare procedures set forth in § 922(g)(8) would be considered woefully inadequate to support the abrogation of other fundamental rights," such as the right to travel, the right to access the internet, or "the ability to petition the government for redress of grievances by attending a city council meeting." The "right of armed self-defense," Cato argues, "is no less important and no less entitled to an appropriate measure of procedural due process."