The government can disarm "dangerous individuals" without violating the Second Amendment, U.S. Solicitor General Elizabeth Prelogar told the Supreme Court on Tuesday. J. Matthew Wright, the lawyer arguing the other side of United States v. Rahimi, agreed with that general principle. But he did not agree that the federal law Prelogar was defending, which criminalizes gun possession by people who are subject to domestic violence restraining orders, fits within that tradition.
Neither did the U.S. Court of Appeals for the 5th Circuit, which last February ruled that the law, 18 USC 922(g)(8), was not "consistent with this Nation's historical tradition of firearm regulation"—the constitutional test that the Supreme Court established last year in New York State Rifle & Pistol Association v. Bruen. Writing for a unanimous panel, 5th Circuit Judge Cory T. Wilson noted that Section 922(g)(8) "works to disarm not only individuals who are threats to other individuals but also every party to a domestic proceeding (think: divorce court) who, with no history of violence whatever, becomes subject to a domestic restraining order that contains boilerplate language" meeting the law's criteria.
Judge James C. Ho amplified that point in his concurring opinion. Ho said protective orders 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."
During oral arguments on Tuesday, Prelogar suggested these problems are figments of Ho's imagination. She claimed that Section 922(g)(8), which makes gun possession a felony punishable by up to 15 years in prison, "requires individualized findings of dangerousness." But that is clearly not true.
To trigger the loss of Second Amendment rights under this provision, a restraining order must be preceded by a hearing of which the respondent "received actual notice." That order must prohibit "harassing, stalking, or threatening," along with "other conduct that would place an intimate partner in reasonable fear of bodily injury," and it can include a finding that the respondent poses "a credible threat," which fits Prelogar's description. But such a finding is not necessary as long as the order "explicitly prohibits the use, attempted use, or threatened use of physical force."
Because the first option "requires a judicial finding of dangerousness, it does not infringe the Second Amendment," gun policy scholar David Kopel argues in a brief opposing the government's position. But the second option "does not require such a finding," he says, so it "is an infringement."
Wilson described language regarding the use of force as "boilerplate" commonly included in divorce-related restraining orders that can be readily obtained even when the respondent has "no history of violence whatever." In response to that criticism, Prelogar said judges are supposed to use such language only when it is justified by the facts of the case.
"A judge who's considering a request for a protective order wouldn't have a basis in law to enter that…prohibition on the use of physical force unless the judge thought the force was sufficiently likely to materialize," Prelogar told the justices. Critics like Wilson, Ho, and Wright, she said, are "basically trying to suggest or insinuate that these state courts are nevertheless entering protective orders that are not justified by the facts and the law, and that just flies in the face of the presumption of regularity that this Court applies in this context."
Is that "presumption of regularity" justified? As evidence that it is, Prelogar noted that family courts in Tarrant County, Texas, where this case originated, approved 289 of 522 applications for protective orders between July 1, 2021, and June 30, 2022. She said those numbers, which indicate that judges rejected more than two-fifths of the applications, "don't bear out the assertions that family courts are just reflexively entering these kinds of protective orders."
As you might suspect, those numbers from one county in one state for one year do not tell the whole story. In New York City, the Bronx Defenders Union (BDU) and the National Association of Criminal Defense Lawyers (NACDL) report in their brief supporting the challenge to Section 922(g)(8), "judges issue orders of protection without any finding of dangerousness or violence and without affording the accused any due process." The targets of those orders have no "meaningful opportunity to contest the underlying allegations." In short, the brief says, "the Government's claim that the orders of protection target solely dangerous abusers is completely contradicted by the daily reality in New York's courts."
When criminal defendants face allegations of domestic abuse, the BDU and the NACDL say, "orders of protection are issued as a matter of course in every case," typically "within seconds of appearances being entered on the record." Every order "requires the accused to not assault, harass, or commit any crimes against the complainant," thereby meeting the requirements of Section 922(g)(8). Yet the orders are based on "mere hearsay allegations, without any findings of violence" and "without any admissible evidence of abuse."
The BDU and the NACDL say "the near-automatic issuance of orders of protection
is prevalent in family court as well." Hearings usually are "protracted over a period of days, weeks, or sometimes months," featuring "snippets of testimony in the fifteen-minute calendar slot designated for the appearance before the matter is repeatedly adjourned." Judges "are permitted to consider hearsay and typically accept and rely on documents with multiple layers of hearsay in them." When "a person is requesting a restraining order, the courts typically grant the request at the end of the hearing."
In a brief on behalf of two gun rights groups, California lawyer Chuck Michel also highlights due process concerns about protective orders. He says respondents "rarely" have "enough time" to "fully prepare for a critically important hearing that can result in the loss of significant freedoms." Respondents "are not entitled to discovery, a jury, or free counsel." And "while petitioners bear the burden of proof at the evidentiary hearing, they generally need only show, by a preponderance of the evidence, that the respondent has committed or might commit an act of domestic violence." Arizona's standard is even weaker: "reasonable cause to believe."
Whatever the official standard of proof, judges may be inclined to err on what they view as the side of caution. "They are human, after all, and no one wants to be tomorrow's headline should tragedy strike," Michel writes. He illustrates that point with a divorce case in which a New Jersey judge issued a protective order based on nothing more than "the unrepresented parties' conflicting accounts of the alleged abuse." The judge told the husband:
If I have to make a mistake, I have to make a mistake in favor of safety. Do you understand that? Because let me tell you something right now. Aside from the fact that I'm a judge, I'm a human being. And if I make a mistake that's going to hurt somebody, I'll never forgive myself….Although I don't think you intentionally did anything to harm anybody…I have no problem entering the order…not because you are a bad guy, [but] because it's the right thing to do.
Exactly how often that sort of thing happens is a matter of dispute. But as a brief submitted by Georgetown University political economist William English notes, there is reason to think it happens more often than Prelogar is willing to admit.
"The problem is that protective orders can be obtained under false or trivial pretenses, and there are systematic pressures to do so for strategic purposes within romantic and marital disputes," English writes. "This phenomenon has been described in detail in ethnographic research. Although documenting its prevalence at scale is methodologically challenging, a number of studies using different methods have found evidence that unsubstantiated protective orders are sought and obtained at high rates."
A 2014 study found that "threats to make false accusations are common in situations where women perpetrate violence against men." Nearly three-quarters of "men who experienced female-perpetrated violence reported that their partner threatened to make false accusations." A 2003 study of Canadian cases found that allegations of partner abuse were false or unsubstantiated a quarter of the time. "In a more in-depth study of subjects referred from family courts in San Francisco Bay Area counties," English notes, "50% of the domestic violence accusations against mothers and 25% against fathers were found to be unsubstantiated."
English also cites a 2020 national survey in which 8 percent of respondents said they had been "falsely accused of domestic violence, child abuse, sexual assault, or other forms of abuse," while 17 percent said they had known "someone falsely accused of domestic violence in particular." Even if some of the respondents were lying or mistaken, these results suggest that millions of Americans have faced false domestic abuse allegations. That group surely overlaps, to at least some extent, with the 2 million or so Americans who, according to English's estimate, are disqualified from gun ownership under Section 922(g)(8) at any given time.
Given the risk of false allegations, the question of whether judges tend to rubber-stamp protective orders is clearly relevant to the issue of whether such orders prove people are dangerous enough to lose their Second Amendment rights. The problem with Section 922(g)(8), Wright told the justices, is that it bootstraps a process in which little seems to be at stake for the respondent (an order forbidding conduct that is already illegal or at least unethical) into a justification for depriving him of a constitutional right. "What we have is a proceeding that's designed to adjudicate small rights or no rights at all," Wright said. "And then, based on the results of that proceeding…we take very consequential actions that go against an individual's fundamental right to keep arms."