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Fifth Circuit Holds People Can't Be Disarmed Just Based on Civil Restraining Order
Judge James Ho concurs, adding "I write separately to point out that our Founders firmly believed in the fundamental role of government in protecting citizens against violence, as well as the individual right to keep and bear arms—and that these two principles are not inconsistent but entirely compatible with one another."
From U.S. v. Rahimi, decided today by the Fifth Circuit, in an opinion by Judge Cory Wilson, joined by Judges Edith Jones and James Ho:
The question presented in this case is not whether prohibiting the possession of firearms by someone subject to a domestic violence restraining order is a laudable policy goal. The question is whether 18 U.S.C. § 922(g)(8), a specific statute that does so, is constitutional under the Second Amendment of the United States Constitution. In the light of N.Y. State Rifle & Pistol Ass'n, Inc. v. Bruen (2022), it is not.
The court rejected the view that, under Heller and Bruen, legislatures can disarm anyone who isn't a "law-abiding, responsible citizen[]":
There is some debate on this issue. Compare Kanter v. Barr (7th Cir. 2019) (Barrett, J. dissenting), abrogated by Bruen, 142 S. Ct. 2111, with Binderup v. Att'y Gen. (3d Cir. 2016) (en banc) (Hardiman, J., concurring in part and concurring in the judgments). As summarized by now-Justice Barrett, "one [approach] uses history and tradition to identify the scope of the right, and the other uses that same body of evidence to identify the scope of the legislature's power to take it away." The Government's argument that Rahimi falls outside the community covered by the Second Amendment rests on the first approach. But it runs headlong into Heller and Bruen, which we read to espouse the second one.
Unpacking the issue, the Government's argument fails because (1) it is inconsistent with Heller, Bruen, and the text of the Second Amendment, (2) it inexplicably treats Second Amendment rights differently than other individually held rights, and (3) it has no limiting principles….
Heller explained that the words "the people" in the Second Amendment have been interpreted throughout the Constitution to "unambiguously refer[] to all members of the political community, not an unspecified subset." Further, "the people" "refer[] to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community." … Heller's exposition of "the people" strongly indicates that Rahimi is included in "the people" and thus within the Second Amendment's scope.
To be sure, as the Government argues, Heller and Bruen also refer to "law-abiding, responsible citizens" in discussing the amendment's reach (Bruen adds "ordinary, law-abiding citizens"). But read in context, the Court's phrasing does not add an implied gloss that constricts the Second Amendment's reach. Heller simply uses the phrase "law-abiding, responsible citizens" as shorthand in explaining that its holding (that the amendment codifies an individual right to keep and bear arms) should not "be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings …." …
The Government's reading of Heller and Bruen also turns the typical way of conceptualizing constitutional rights on its head. "[A] person could be in one day and out the next: the moment he was convicted of a violent crime or suffered the onset of mental illness, his rights would be stripped as a self-executing consequence of his new status." Kanter (Barrett, J., dissenting). This is "an unusual way of thinking about rights [because i]n other contexts that involve the loss of a right, the deprivation occurs because of state action, and state action determines the scope of the loss (subject, of course, to any applicable constitutional constraints)." "Felon voting rights are a good example: a state can disenfranchise felons, but if it refrains from doing so, their voting rights remain constitutionally protected." The Government fails to justify this disparate treatment of the Second Amendment.
Perhaps most importantly, the Government's proffered interpretation lacks any true limiting principle. Under the Government's reading, Congress could remove "unordinary" or "irresponsible" or "non-law abiding" people—however expediently defined—from the scope of the Second Amendment. Could speeders be stripped of their right to keep and bear arms? Political nonconformists? People who do not recycle or drive an electric vehicle? One easily gets the point: Neither Heller nor Bruen countenances such a malleable scope of the Second Amendment's protections; to the contrary, the Supreme Court has made clear that "the Second Amendment right is exercised individually and belongs to all Americans." Rahimi, while hardly a model citizen, is nonetheless part of the political community entitled to the Second Amendment's guarantees, all other things equal….
The court concluded that therefore, under Bruen, § 922(g)(8) could be upheld only if it were sufficiently analogous to historically accepted limitations on guns; and it held that none of the proposed analogies worked:
[W]e focus on these key features of [§ 922(g)(8): (1) forfeiture of the right to possess weapons (2) after a civil proceeding (3) in which a court enters a protective order based on a finding of a "credible threat" to another specific person, (4) in order to protect that person from "domestic gun abuse." … To sustain § 922(g)(8)'s burden on Rahimi's Second Amendment right, the Government bears the burden of proffering "relevantly similar" historical regulations that imposed "a comparable burden on the right of armed self-defense" that were also "comparably justified." …
The Government offers potential historical analogues to § 922(g)(8) that fall generally into three categories: (1) English and American laws (and sundry unadopted proposals to modify the Second Amendment) providing for disarmament of "dangerous" people, (2) English and American "going armed" laws, and (3) colonial and early state surety laws. We discuss in turn why each of these historical regulations falter as "relevantly similar" precursors to § 922(g)(8)….
Under the English Militia Act of 1662, officers of the Crown could "seize all arms in the custody or possession of any person" whom they "judge[d] dangerous to the Peace of the Kingdom." Citing scholarship, the Government thus posits that "by the time of American independence, England had established a well-practiced tradition of disarming dangerous persons—violent persons and disaffected persons perceived as threatening to the crown."
But the Militia Act's provenance demonstrates that it is not a forerunner of our Nation's historical tradition of firearm regulation. Under Charles I (who reigned 1625–1649), the Crown and Parliament contested for control of the militia. After the resulting civil war and Oliver Cromwell's interregnum, the monarchy was restored in 1660 when Charles II took the throne. Charles II began using the militia to disarm his political opponents. The Militia Act of 1662 facilitated this disarmament, which escalated under the Catholic James II once he took the throne in 1685. After the Glorious Revolution, which enthroned Protestants William and Mary, the Declaration of Rights, codified as the 1689 English Bill of Rights, qualified the Militia Act by guaranteeing "[t]hat the subjects which are Protestants may have arms for their defence suitable to their Conditions and as allowed by Law." "This right," which restricted the Militia Act's reach in order to prevent the kind of politically motivated disarmaments pursued by Charles II and James II, "has long been understood to be the predecessor to our Second Amendment." This understanding, and the history behind it, defeats any utility of the Militia Act of 1662 as a historical analogue for § 922(g)(8).
The Government next points to laws in several colonies and states that disarmed classes of people considered to be dangerous, specifically including those unwilling to take an oath of allegiance, slaves, and Native Americans…. [But t]he purpose of these "dangerousness" laws was the preservation of political and social order, not the protection of an identified person from the specific threat posed by another. Therefore, laws disarming "dangerous" classes of people are not "relevantly similar" to § 922(g)(8) such that they can serve as historical analogues.
Finally, the Government offers two proposals that emerged in state ratification conventions considering the proposed Constitution. A minority of Pennsylvania's convention authored a report in which they contended that citizens have a right to bear arms "unless for crimes committed, or real danger of public injury." And at the Massachusetts convention, Samuel Adams proposed a qualifier to the Second Amendment that limited the scope of the right to "peaceable citizens."
But these proposed amendments are not reflective of the Nation's early understanding of the scope of the Second Amendment right. While they were influential proposals, neither became part of the Second Amendment as ratified. Thus, the proposals might somewhat illuminate the scope of firearm rights at the time of ratification, but they cannot counter the Second Amendment's text, or serve as an analogue for § 922(g)(8) ….
The Government also relies on the ancient criminal offense of "going armed to terrify the King's subjects." This common law offense persisted in America and was in some cases codified…. [But] those laws only disarmed an offender after criminal proceedings and conviction. By contrast, § 922(g)(8) disarms people who have merely been civilly adjudicated to be a threat to another person. Moreover, the "going armed" laws, like the "dangerousness" laws discussed above, appear to have been aimed at curbing terroristic or riotous behavior, i.e., disarming those who had been adjudicated to be a threat to society generally, rather than to identified individuals. Thus, these "going armed" laws are not viable historical analogues for § 922(g)(8)….
Lastly, the Government points to historical surety laws. At common law, an individual who could show that he had "just cause to fear" that another would injure him or destroy his property could "demand surety of the peace against such person." The surety "was intended merely for prevention, without any crime actually committed by the party; but arising only from probable suspicion, that some crime [wa]s intended or likely to happen." If the party of whom surety was demanded refused to post surety, he would be forbidden from carrying a weapon in public absent special need….
The surety laws come closer to being "relevantly similar" to § 922(g)(8) than the "dangerousness" and "going armed" laws discussed supra. First, they are more clearly a part of our tradition of firearm regulation. And they were "comparably justified," in that they were meant to protect an identified person (who sought surety) from the risk of harm posed by another identified individual (who had to post surety to carry arms). Put simply, the why behind historical surety laws analogously aligns with that underlying § 922(g)(8).
Aspects of how the surety laws worked resemble certain of the mechanics of § 922(g)(8) as well. The surety laws required only a civil proceeding, not a criminal conviction. The "credible threat" finding required to trigger § 922(g)(8)'s prohibition on possession of weapons echoes the showing that was required to justify posting of surety to avoid forfeiture. But that is where the analogy breaks down: As the Government acknowledges, historical surety laws did not prohibit public carry, much less possession of weapons, so long as the offender posted surety. See also Bruen (noting that there is "little evidence that authorities ever enforced surety laws"). Where the surety laws imposed a conditional, partial restriction on the Second Amendment right, § 922(g)(8) works an absolute deprivation of the right, not only publicly to carry, but to possess any firearm, upon entry of a sufficient protective order. At bottom, the historical surety laws did not impose "a comparable burden on the right of armed self-defense." …
Doubtless, 18 U.S.C. § 922(g)(8) embodies salutary policy goals meant to protect vulnerable people in our society. Weighing those policy goals' merits through the sort of means-end scrutiny our prior precedent indulged, we previously concluded that the societal benefits of § 922(g)(8) outweighed its burden on Rahimi's Second Amendment rights. But Bruen forecloses any such analysis in favor of a historical analogical inquiry into the scope of the allowable burden on the Second Amendment right. Through that lens, we conclude that § 922(g)(8)'s ban on possession of firearms is an "outlier[] that our ancestors would never have accepted." …
Judge Ho joined the majority but concurred; an excerpt:
I write separately to point out that our Founders firmly believed in the fundamental role of government in protecting citizens against violence, as well as the individual right to keep and bear arms—and that these two principles are not inconsistent but entirely compatible with one another.
Our Founders understood that those who commit or threaten violence against innocent law-abiding citizens may be arrested, convicted, and incarcerated. They knew that arrest and incarceration naturally entails the loss of a wide range of liberties—including the loss of access to arms. {See, e.g., Chimel v. California (1969) ("When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape."); State v. Buzzard (Ark. 1842) (Ringo, C.J.) ("Persons accused of crime, upon their arrest, have constantly been divested of their arms, without the legality of the act having ever been questioned.").}
So when the government detains—and thereby disarms—a member of our community, it must do so consistent with the fundamental protections that our Constitution affords to those accused of a crime. For example, the government may detain dangerous criminals, not just after conviction, but also before trial. Pre-trial detention is expressly contemplated by the Excessive Bail Clause and the Speedy Trial Clause. And it no doubt plays a significant role in protecting innocent citizens against violence. See, e.g., United States v. Salerno (1987) (permitting "the detention prior to trial of arrestees charged with serious felonies who … pose a threat to the safety of individuals or to the community").
Our laws also contemplate the incarceration of those who criminally threaten, but have not (yet) committed, violence. After all, to the victim, such actions are not only life-threatening—they're life-altering.
In sum, our Founders envisioned a nation in which both citizen and sovereign alike play important roles in protecting the innocent against violent criminals. Our decision today is consistent with that vision….
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Those people who hate that the 2nd amendment exists, should start a serious campaign to try repeal it via a new amendment. Sure that is difficult, but you can’t succeed if you never try.
I think the amendment would fail, but the country might be better off if the attempt was made.
It’s too bad we can’t repeal equal protection clause. It’s done more damage than any other.
The 19th comes to mind…
Your finger must have slipped, you meant the 17th. 🙂
Flip sides of the same coin.
Each of these rulings, and each unlawful shooting, makes it more likely that revolution – or at least, open defiance of rulings from the Federal courts, by individuals and by lower courts – will come from the left, rather than from the right.
Anyone who thinks we have seen the last instance of a small child shooting a teacher or a classmate, does not understand statistics.
Sooner or later, somewhere or other in USA, a single-digit-age child will shoot someone to death.
It’s statistically impossible for this not to happen so long as USA continues increasing the number of guns in the hands of idiots.
Yeah we’re really worried about revolution from the left. You people are pussies who run away like scared little girls when you’re not in a pack and outside of your comfort zone.
You fairies do more damage with your monkeypox infected members than all guns have ever done.
I realize you’re a parody account, but that’s still too silly.
The left have done plenty of damage over the last few years, just with their public riots. Billions in property damage, dozens dead.
And with the Jane’s Revenge/Antifa connection, they’re returning to their past history of domestic terrorism, too.
Here’s an example of your point:
https://thehill.com/opinion/criminal-justice/3837733-forgotten-words-a-well-regulated-militia/
“In its Heller decision, the Supreme Court struck down the D.C. handgun ban as violative of the Second Amendment. Doing so, the court appears to have ignored the plain meaning of the Second Amendment, its historical context, and lengthy legal precedent.”
They criticize Heller, but they “don’t support gun bans.” Fucking disgusting liars. Why do you give them any credibility?
Both Scalia and Stevens misinterpreted the reason for the phrase “neccessary for a free state” . The purpose of phrase is to describe the purpose of the first of the two rights protected in 2A, the first right being the right to form militias for the common defense of the society. The second right protected in 2A is the individual right of the people to keep and bear arms.
I don’t think there is an unfettered right to organize your own militia.
Article 1 Clause 16: “To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.”
Congress can set rules regulations, and your governor can appoint the officers.
Article 1 clause if for the federal militia
2a protects the right of people to form militia’s as needed. Remember that the crown had just tried to take guns away 1772/1774
2A as proposed by madison as part of the 20 BOR’s
“The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person,” said Madison.
https://constitutioncenter.org/blog/five-items-congress-deleted-from-madisons-original-bill-of-rights
2A as proposed by madison in the 12 BOR
Art. 5. A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed, but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person.
https://www.sethkaller.com/item/182-First-Draft-of-the-Bill-of-Rights:-17-Amendments-Approved-by-the-House
He’s not a parody account. He actually believes this.
For somebody who “actually believes this” he sure manages to perfectly match left-wing stereotypes.
You may want to pause and reflect on why that is, dude. Maybe the left has accurately assessed your movement. I mean you have way more in common with him than you probably realize.
You calling other people pussies is hilarious considering all you do is post mass murder fantasies you hope other people commit for you.
There’s plenty of us who would, under the right set of conditions, fight. But doing so without broad support just means you end up in jail or dead.
Sure thing, champ. But I suppose it’s better for people that you believe that about yourself.
So your afraid of jail and/or death vs. standing up for your most cherished belief. That pretty much makes you a pussy.
Again, what good does it do for a cause if you end up dead without furthering the actual goal?
Single-digit-age children already shoot and kill people. It happens about once a decade. It is invariably a parenting failure. It also has no bearing whatsoever on the gun control debate. It hasn’t when it happened in the past and it still won’t when it inevitably happens again in the future.
Guns, for all your irrational fears, are still less dangerous than swimming pools, car seats, pet dogs and many other things that you casually take for granted in everyday life.
There are reports that the 6-year-old who shot his teacher had previously threatened to set a teacher on fire and watch her die.
The gun is not the main problem here.
Access to the gun was a problem, though.
Guaranteed by the Second Amendment.
For six year olds, in schools.
There are people who make child pornography. Access to a camera and the Internet is a problem.
Category error.
Thomas made the key statement in NYSR&PA
– that the burden of proof is on the government
– that any restriction comports with history and traditions
– that is a high burden.
The cases going forward
– will discuss the history of the founders
– vesus the time of the 14th amendment
– noting that NYSR&PA is properly a 14th amendment case
Do you really want open defiance of federal cpurts?
This is depraved.
No, what is depraved that this guy has committed a whole lot of nasty crimes for which he has not been prosecuted, and rather than do the honest work of prosecuting him, they rely on an idiotic civil restraining order.
https://www.thetruthaboutguns.com/fifth-circuit-panels-rules-ban-on-gun-ownership-while-under-a-restraining-order-fails-the-bruen-test/
That‘s depravity.
Yeah, it’s not a competition. The 5th circuit ruling under discussion is depraved.
Depraved? Explain . . . .
You’ve alleged that it is depraved twice.
You’ve proven that allegation zero times.
It’s a statement of objective fact, numpty, not an “allegation.”
No, it’s an unsubstantiated opinion which you are refusing to either explain or defend. You are entitled to your opinion but when you refuse to explain it, don’t expect anyone else to pay attention to it.
Depravity is not a legal term of art. As a matter of policy, the decision is nonsensical. But the 5th Circuit is required to construe the 2nd Amendment consistently with the Supreme Court’s decisions defining the scope of that provision. Viewed in that perspective, it is not clear that the decision is wrong. It may, however, raise questions as to whether the decisions on which it relies are nonsensical.
“Nonsensical” means something rather different from “wrong”, or even “I don’t like it”. It means more like “logically incoherent”.
The policies you’re objecting to aren’t incoherent, you just don’t like how they weight competing interests.
Actually, the Supreme Court has stated that since the 2nd Amdt protects a fundamental human right, and is thus subject to Strict Scrutiny, weighing of competing rights is no longer allowable by lower courts.
Supreme court never said “strict scrutiny” – that was a bridge too far. Maryland’s highest court re-instated the “assault weapon” ban because of that.
So you oppose the concept of civil rights.
Right. We should prosecute them all, and put them in prison, and pay for the cost of incarceration by raising YOUR taxes.
I am all for keeping taxes low, but trying to economize by giving up on law enforcement is . . . well, nuts. Protecting the population from criminals (and foreign invaders) is the primary function of government.
All the violent criminals? Yes, we should prosecute them all.
You seem to object to prosecuting people for violent crimes.
So you’re arguing that keeping taxes low should be the goal here. So keep criminals causing crime and give the government lame reasons to keep guns out the hands of otherwise law abiding people. And no, I’m not talking about the person in this case; just others who have a restraining order against them.
The utter lunacy of the progressives in these comments is always something to behold.
Terrible ruling, but also an absolute threat to gun rights and indeed to conservative jurisprudence generally. Because if it stands, it will kill women. Some percentage of abusers do kill their wives, and when it happens it will be directly tied to rulings striking down this statute.
Someone needs to save the 5th Circuit from itself.
Why is this logic only applied to gun rights? Lots of bad guys are on the streets because of their 4th/5th/6th Amendment rights, but we don’t blame liberal jurisprudence when the public defender gets a not guilty, then that guy goes on to murder again. And yet the public defender only exists because of a right to free counsel made up out of whole cloth.
If you can name a criminal whose conviction was thrown out on 4th amendment grounds, went free, and then murdered someone, that would be a comparable. But that actually doesn’t really happen very often if at all.
No, it wouldn’t be comparable, because this isn’t about people who are convicted of domestic violence. Contrast with Voisine v. United States, 579 U.S. 686 (2016), for example.
(That case would make an interesting entry for captcrisis’s Supreme Court history comment on Feb 15th: https://web.archive.org/web/20190903223323/https://www.theatlantic.com/politics/archive/2016/02/clarence-thomas-supreme-court/471582/)
Good point. I’m glad I never see Democratic politicians facing any attacks from the right arguing that protecting thr 8th Amendment rights to reasonable bail puts killers back on the street.
The best example of something like this hurting Democrats was Willie Horton, who committed terrible crimes after Dukakis let him out on furlough. The gun rights movement is going to have some Willie Hortons of its own if this holds.
So what? Thaty’ve had their Sandy Hooks, they don’t care.
“So what? Thaty’ve had their Sandy Hooks, they don’t care.”
What does it mean to “care” in this context? Caving to left-wing policy preferences? Someone on the other side of the country commits a crime so I am obligated to surrender my personal property?
What an utterly repulsive thing to say.
“The gun rights movement is going to have some Willie Hortons of its own if this holds.”
I don’t know what could possibly be a “Willie Horton” moment that hasn’t already happened. I mean the worst case scenario has already happened several times: people with easy and legal access to guns murdering school kids.
The gun fever will break once enough young people enter public life who have experienced gun violence either first hand or through the routinization of accommodating their lives to mass shootings and seeing supposed adults not seem to care about any of this.
This is going to be a lot more specific. It’s going to be “John Smith beat his wife and threatened to kill her. The courts ruled he had a second amendment right to keep his guns. He then shot her to death.”
It’s just like Willie Horton in its specificity.
But we hear a lot of those stories already. It’s common place.
Not connected so definitively to a ruling sought by the gun rights movement.
If he beat his wife and threatened to kill her, why didn’t they charge him with felony assault?
He was probably a cop.
Was he? Or are you just making another snide comment that has nothing to do with reality?
Well to be fair, even a court ruling isn’t going to prevent him from getting a gun.
Court rulings only affect the law-abiding.
The thornier issue here is that because these restraining orders and orders of protection are CIVIL – – what happens if a guy misses the court date because he is out of town or at work or whatever? They lose by default.
The original orders or ‘filing’ are obtained ex parte. People can say or allege whatever they want in them. Once the respondent is served; they have to obey the terms of the order until there is a hearing. Often several weeks or a month or longer (depending on court availability) out from being served. So in real practical terms; anybody can obtain an ex parte restraining order and once it is served, that will deprive that person of their ability to legally have 2nd amendment rights at least temporarily. If they then lose at the hearing, it becomes more permanent (in my state emergency orders are entered ex parte, if the petitioner wins a plenary order (on a civil standard of proof), the emergency order becomes a plenary order and lasts 2yrs and can be renewed by the petitioner before expiration for 2more yrs at a time indefinitely into the future.)
There is a real substantive due process issue with the process as it is played out in real life. And since we are dealing with a fundamental right, it becomes rather legally problematic and hard to ignore. We see these orders of protection granted all the time in divorce cases because it can deprive a person of being anywhere near the property and protects the ex-wife, her children, etc… so they become custodial parent which helps them gain custody at a future family law/divorce case. The process is abused routinely.
Section 922(g)(8), the prohibition under review in this case, only applies to orders issued “after a hearing of which such person received actual notice, and at which such person had the opportunity to participate”. In other words, it’s not triggered by ex parte order. I would note that in my jurisdiction, at least, judicial officers do actually scrutinize the petitions and deny the facially inadequate ones even when the respondent doesn’t appear.
The murder of school children is always bey disaffected youths who would have been locked up if not for people like you.
It wasn’t conservatives releasing the mentally ill. It wasn’t conservatives who transformed it from easy to commit the insane and undesirable to nearly impossible.
It was YOU.
If the game is “the 5th Circuit should flip the bird to the law and just handwave its way into the Right Policy Position,” I’ll play: if domestic restraining orders are arbitrarily expanded to cover generalized issues not tied to the restraining order, restraining orders will become even more weaponized than they are now (e.g., as a scorched earth tactic in a child custody dispute).
The Constitution does not require that wife beaters have guns to shoot their wives with. Domestic abusers are not part of the well regulated militia.
How about some convictions to prove he’s a wife beater? How about something better than a civil restraining order?
How many women are you willing to have killed to stand up for the idea that we have to wait for a trial to take the guns away?
Why just take away there their guns? Strip them of their right to vote based on a civil order. No need for a trial. Just execute them based on a restraining order!
Their right to vote isn’t a direct threat to kill their partner, and the fact that you guys don’t get this is an almost perfect distillation of political extremism.
No, the fact that you think it’s okay to strip someone of their rights without due process, because you don’t like the right, is a perfect distillation of political extremism.
‘Not liking the right’ is not the same thing as ‘not wanting to make it easy for them to kill their partner.’
So why only guns? Edged weapons and motor vehicles (see Waukesha) do quite well at killing. Is your point that there is a bit more convenience in one over the other?
Pretty much. Plus people don’t generally need guns for everyday activities such as food preperation or travel. I expect a case could be made if he was prone to threatening her with a hunting knife, and I would hope that if he was discovered approaching her with a carving knife on his person it would be treated not dissimilarly to his approaching her with a gun.
“Liberals” aren’t into due process.
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/12/04/can-americans-be-denied-second-amendment-rights-because-the-attorney-general-suspects-theyre-terrorists/
https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/12/07/two-new-york-times-editorials-terror-watch-lists-run-amok-now-lets-ban-gun-purchases-by-people-who-are-on-them/
And that really is the problem – lack of Due Process. The plaintiff here never had his day in court before his weapons were seized.
How many appeals to emotion are you going to make?
“Think of the women” is no more a legitimate argument than “think of the children!”
Yeah, neither women nor chldren have legitimate interests in not being shot to death, apparently.
Go back to bed; you woke up dumber than usual.
Yes, it’s dumb that women and children don’t want to get shot.
Yes, you’re dumb to come here with nothing but fallacious appeals to emotion.
Try something new and different for once. You might even end up making a legitimate argument, though I don’t want to set my expectations too high.
How emotional and fallacious of women and children not to want to get shot. Given the towering rages this subject sends you guys into, you’re hardly in a position to dismiss others as emotional. Nobody’s loudly vowed to shoot anyone who tries to take away their guns yet, but the thread is young.
One of the funniest beliefs that is widespread among the American right is the belief that none of their positions are based on “feelings” and “emotion.” It’s all based on “facts and logic” or the “law” or “nature.”
In reality they are some of the softest most emotionally driven people on the planet. And you know this is true because the “bleeding hearts” who don’t pretend they are emotionless robots recognize it. Game recognize game.
What’s the emotion here?
Dude wasn’t convicted of any crimes which bring about the loss of a constitutional right. Therefore, he shouldn’t lose any.
It’s also cute that you think I’m part of the American right, simply because I support all of the civil liberties enshrined in our Constitution.
And you know it’s true because…you think it’s true. lol. That’s the humor here.
The Constitution also does not require that membership in any militia is requisite to exercise of the right to keep and bear arms.
Not today. But it did, for most of our history.
It never did.
At this point they’ve moved full time into the fantasy world Belesilles created, and slammed the door shut behind them. They’ve lost all connection with reality.
It’s been something to see the left reacting to Dobbs and Bruen. Just outright defiance in both cases.
On abortion, several states reacted by enacting elective abortion right up until delivery, they’re really starting to get into territory that has single digit support in the polls. I mean, you can’t actually call that defying Dobbs, because Dobbs said it was purely a state matter, but it amounts to a temper tantrum, “How dare you just let us do what we want!”.
And maybe (the same?) half dozen states reacted to Bruen by enacting blatantly unconstitutional gun laws. Not even pretending they were complying with the 2nd amendment.
I get the impression they’re working themselves up to something big, stupid, and possibly violent.
The Constitution does say that the purpose of the right to keep and bear arms is connected to militia service, and militias have the power to take arms away from dangerous individuals such as wife beaters.
The purpose of protecting the right at the federal level is connected to safeguarding the ability of people to be prepared for militia service, but the right itself was deliberately NOT conditioned on militia service, in order to avoid a scenario where the right would be extinguished by simply not maintaining a militia in a state.
And the latter assertion is just you imagining things.
So, what militia service are gun-owners prepared for these days?
Your beliefs, Brett, are going to get a lot of women killed.
Brett doesn’t care for human life. He never has. He literally thinks he can shoot someone in the back if they stole a nickel from him.
Think of the women you might save if you could formulate an argument without it being entirely fallacious!
No, it doesn’t. It says the federal interest in protecting that pre-existing right is to preserve a well regulated militia.
And that pre-existing right shall not be infringed.
Making up judicial history, one falsehood at a time. Your interpretation of the Militia Clause is directly contrary to the majority opinion to Heller. You may not agree with that ruling, but it is binding on the government, including lower and state courts. And expounding as you do just shows your inability to read and understand judicial opinions.
A certain percentage of criminals kill people due to the restraints progs put on police but that never stopped anyone.
You guys are clueless about the politics of this. Get out of the echo chamber before you have dead battered women killed by your extreme and unnecessary legal position.
Are you going to start screaming that someone must “think of the children” next? Your irrational emotional appeal is convincing no one because you are continuing to ignore the problem that your position has no limiting factor.
Yes, “some women might die”. That’s not enough reason to ruin lives, abrogate rights, abandon constitutional controls and undermine the rule of law.
Yes, “some women might die”. That’s not enough reason to…take away domestic abusers’ guns, apparently.
Please vote on this basis in the next Republican primary! Your candidate will sail to spectacular success in the general election, I promise.
The bottom line is, this is a civil liberty, and you want to treat it like it was just a privilege, and a disfavored one at that.
Nope, not happening. It gets all the protections any civil liberty gets.
You can’t use most civil liberties to shoot up schools or murder partners.
Yeah, you can’t use guns to forge currency or write extortion notes, either. So what?
You don’t get to ban exercise of a civil right on the assumption somebody is going to misuse it. You can’t just say, “You look like the kind of guy who’d commit extortion if you had freedom of speech, so we’re taking it away.” You have to wait until they do, and punish them afterwards.
You don’t need to assume someone is going to misuse it, you just have to listen to the monotonous rounds of mass shootings. Nobody has to do shooting drills and wear bulltproof backpacks and put up with police in schools because of fraud or extortion.
All your arguments are premised on the idea that this shouldn’t be a right, but the objective reality is that it IS a right, spelled out explicitly in the Bill of Rights. So you lost that argument back in 1791.
You want to try to repeal the 2nd amendment, have at it.
If you want to yolk the very existence of that right to people accused of domestic abuse having access to deadly weaponry, go ahead. It’s ridiculous, irresponsible, dangerous and destructive of civil life, but go ahead.
I say it would be ridiculous, irresponsible, dangerous and destructive of our civil rights to let people’s rights be taken away based on mere accusations. The 5th Circuit judges are spot-on.
You guys are acting as if there is no opportunity for the man to deny the allegations of abuse or get a ruling that it didn’t happen.
“no opportunity for the man to deny the allegations of abuse or get a ruling that it didn’t happen”
TROs are almost always granted. Because most judges believe the theory you just articulated: if I grant it I’m safe, if I deny it, that woman might get hurt and I will get bad press, maybe an ethics investigation. Better grant it.
‘to let people’s rights be taken away based on mere accusations.’
People accused of crimes have all sorts of rights taken away from them. Heck, the civil restraining order already places a restriction on their freedom of speech and freedom of association since it prevents them from approaching or speaking to the victim.
TROs are almost always granted.
I had the opposite view. LTG set me straight. Check him out – he has actual experience which is better than you (or I) pulling it out of our ass or from hearsay:
https://reason.com/volokh/2023/02/02/fifth-circuit-holds-people-cant-be-disarmed-just-based-on-civil-restraining-order/?comments=true#comment-9909343
‘Yoke’ FFS.
You’re not making sense. On one hand you talk about optics like some sly hustler giving advice and on the other hand you seem to assume its all rainbow and sunshine in politics and everyone follows the rules.
The politics is the media, no matter what the number is including zero (in which case they’ll make stuff up) is going to trumpet a bloodbath while ignoring the lives saved no matter how high and also ignoring the far greater sum of lives lost due to looney leftwing policies. If the Court didn’t rule this way at all they’d simply find another topic to run nonstop headlines on painting constitutionalists as worse than 10 billion Hitlers combined. Reality doesn’t matter in the progified MSM world. Its all about narrative and who controls it.
Look how many mass murders AREN’T committed!
I know that’s intended as sarcasm but it is in fact a valid measure to be looking at. And the answer is quite high. Defensive uses of guns are documented in the millions per year. Statistically, we can reasonably say that some fraction of those defensive uses probably stopped not just individual attacks but also attacks which, had they not been stopped, would have continued on to become mass murders.
We need to have all the guns to defend us from all the guns we have is kind of circular at best, and given how often it fails, not a recommendation.
So you think we can stuff the genie back in the bottle? It has never yet happened in history. I’m skeptical that you have a magic wand that can make it happen now.
Regardless, you’re missing the point. Yes, it sometimes fails and bad people do bad things – but it succeeds far more often.
Yes, the US has been flooded with guns to its detriment. I think if you were serious about addressing it there’s probably a middle ground between ‘flooding the US with even more guns’ and waving a magic wand.
Firstly, most battered women are liars, and those that aren’t generally made poor decisions which led to them being in that position. It’s no big loss even if they are killed.
You’re the clueless one. Is this the only right that will be extinguished if it being upheld results in any downsides at all?
But what makes it especially clueless is that laws like the one struck down are NEW. You’re predicting horror if things go back to the way they were just a few years earlier!
That’s world-historic levels of cluelessness.
You think not allowing domestic abusers access to a deadly weapon is extinguishing a right?
You think maybe you ought to try convicting them of a crime first, before treating them like they’re guilty of one?
Like, what, arresting them? Is arresting someone treating them like a criminal before they’ve been convicted? Is that not allowed, then? Just having them in court is treating them like a criminal! You can’t try someone for a crime until they’ve been convicted of that crime!
Why was this guy not in jail or prison. His criminal history alone was enough. If you are that dangerous maybe you should be locked away from civilized people.
So, you’re deploying this in support of not putting a restraint on criminals?
There people aren’t “criminals.” They are people accused of a crime of violence. Once they’re convicted — sure, go ahead, take away their gun rights. But only then!
Yes, people accused of crimes never have restraints placed on them.
Innocent until proven guilty.
And while waiting for that determination to be made, they have restrictions placed on them.
So another restriction is justified? No. It doesn’t work that way.
Some states are removing cash bail. Which means they’ll have LESS restrictions on them. Tell me you think this is a good thing and at the same time taking guns away from people not even accused of a crime is also a good thing.
Like I said – utter lunacy.
According to the Sentencing Commission, only half a percent of § 922(g) convictions involve people under restraining orders, which works out to about 37 cases a year. I’d expect the practical ramifications of the decision (if it stands) to be pretty modest.
The more relevant stat is that when a victim of domestic violence later turns up murdered, the odds are very high that the husband is the killer.
This will kill women if SCOTUS were to affirm it.
In a given year, US courts issue between 2 and 3 million domestic violence restraining orders (as of 2009).
37 out of 2 million works out to about 0.0019%.
For comparison, about 2% of people out on bail for murder, attempted murder, or rape commit another murder, attempted murder, or rape during that time.
According to your ‘logic’, we should ban all bail, even though it’s a right. If we don’t, women will die! And 1000 times as many of them, at that.
I don’t think I’m following your reasoning. If the existence of the law doesn’t significantly contribute to keeping guns away from people who would use them to murder an intimate partner, in what sense will eliminating the law “kill women”?
Battered women get killed every year. I believe it’s the single largest cause of homicide of women.
There’s just bound to be cases where they get killed with the gun that Second Amendment absolutism prohibited confiscation of.
Yeah, just like people pass forged currency printed on printers that 1st amendment absolutism prohibited confiscation of.
You want to treat a right like a privilege. Screw you, I mean that sincerely. You want to take a right away from somebody, convict them of a felony first, or bugger off.
Odd, coming from someone who supports the party of voter disenfranchisement. So any rules, regulations, oversight, checks or balances designed to prevent fraud from occurring is also taking away everyone’s civil rights?
Voter disenfranchisement? Democrats 50 years ago?
Another important aspect of history is that domestic violence was not in fact treated as any sort of big problem until fairly recently.
So, in yet another illustration of the stupidity of the whole “history and tradition” business you can’t find these sorts of laws about domestic violence in the past because nobody gave a crap about domestic violence.
Well, that’s not quite right. Women did, no doubt. But they lacked the political power to do much about it. So no, there is no “historical tradition” of disarming domestic abusers, because most of the people making the laws – men – did not care about domestic violence.
Fucking joke.
Well, Clayton, southern Democrats, anyway. The political descendants of your confederate heroes.
Things have changed. Today it’s the Republicans who are all in on voter suppression.
Republicans today.
I agree that criminal violence is a major problem in the inner city.
The Constitution restrains what remedies states may use to suppress, investigater, and punish criminal v iolence in the inner city.
https://www.latimes.com/archives/la-xpm-1994-04-08-mn-43649-story.html
It’s possible that there could a large mass of men under restraining orders (but with no prior convictions for felonies or domestic violence misdemeanors) who have been refraining from acquiring a gun and murdering their partners because of § 922(g)(8). But if you want to persuade me that what could be true is true, you need some evidence. In late or those numbers, it doesn’t seem like he government’s enforcement strategy is having a particularly significant effect, nor does 37 prosecution seem like the sort of thing that would have a meaningful deterrent effect.
In Massachusetts when police serve a restraining order they try to take the guns out of your house immediately. There is less opportunity to illegally possess.
Which is also wrong, and I’d think would be covered under the 5th Circuit’s finding, if Massachusetts were in that district.
You mean, you think there is a guy out there who wants to kill his wife, but she gets a court order removing his guns, he does give up his guns, and he is utterly unable to kill her any other way?
Yeah, I don’t think so.
Because killing people with other weapons is just as easy as shooting them. Many’s the time I’ve hurled a steak knife 300 yards to rid myself of my enemies.
By that logic, we should sell machine guns on every street corner. Hey, if they’re used to murder people, no big deal, those murderers would just have found something else.
Are a lot of domestic violence victims shot from 300 yards away, in your experience?
$5 says that he couldn’t hit anything smaller than a city bus at 300 yards. Even with a decent 3-9 x 40 scope and a bench rest. Too many movies make people think it’s easy. Maybe for the regulars at Camp Perry, but not the average online expert.
Cops apparently think so, given that they just murdered a guy with no legs because he was holding a knife and they thought he was a ninja amputee who could throw the knife at them.
It’s one less way, and a particularly easy and handy way, at that.
You believe that people should lose constitutional rights without ever having been convicted of a crime?
I think refusing categorically to do the bare minimum to protect a person in a dangerous situation is, well, depraved.
Well, we think being determined to go around stripping constitutional rights from people who haven’t been convicted of any crime is depraved, so right back at you.
Anyone accused of a crime has rights ‘stripped’ from them. They’re arrested, held in custody, obliged to put up bail, if they have it, remain incacerated of they don’t, hire a lawyer, if they can, rely on a public defender if they can’t, get put on trial, have it all reported in the media to the detriment of their good name, all before they’ve been convicted. Does someone accused of pedophilia have their right to be alone with his children taken away? Or do the kids have to go in the room alone with the accused pedophile until a conviction, because that would be treating him like a criminal? Would that be depraved?
All of that is predicated on probable cause that a crime was committed, as well as the individual being charged with said crime.
You know this, which means your comment is even dumber than your usual standard.
And? Is domestic violence not a crime?
Nice red herring you have there. It’d be a shame if someone ignored it because you’re a fool.
On a side note: you might want to look up the answer to that question yourself and consider your terminology more carefully next time.
Rahimi was not convicted of assault or battery. It’s nice that you’ve moved on from your idiotic “but the children! BUT THE WOMEN!” dipshittery, but it would be even more amazing if you could actually inform yourself of the facts of this case.
(The link is in the article, in case you require even that to be spelled out for you.)
You poor thing, in your red-rimmed rage you failed to notice our discussion was a general one, not about the specifics of this case.
Regardless of how you try and twist yourself, my position is accurate and consistent in both the general sense and the specifics of this case.
It’s unfortunate (and in many ways, quite sad) that you are incapable of addressing the glaring fallacies and ignorance of your “arguments.” It is equally so that you don’t appear to recognize pity, as I’m quite sure you’ve had it directed your way numerous times for, shall we say, obvious reasons.
Perhaps someday, if we’re all persistent enough to let you keep trying, you’ll make a logical, coherent argument regarding the 2A and your clear disdain for it.
Don’t do it for me, do it for the women and children!
You are better are declaring that fallacies exist than addressing them directly.
A fallacy doesn’t need to be addressed.
You know, because it’s wrong. Kind of an inherent property of a fallacy.
Did I say addressed? You can’t even specify.
Are you somehow incapable of reading your own words on the same screen as mine?
“You are better are declaring that fallacies exist than addressing them directly.”
Idiot.
I bet they really miss you back at the “Democrat Underground”.
Why not go back and post your drivel where no one will question your emotion based lies and rants and they’ll applaud your cupidity.
Sure, if you go back to FreeRepublic where the orcs are missing a toilet brush.
So assign them a Secret Service security detail.
Yeah. Restraining orders, civil commitment orders, gag orders, etc. frequently serve useful purposes. There’s a reason the standard for the government to restrict exercising a right generally is due process, not criminal conviction.
And where was the Due Process here?
That is the due process.
The hearing where the restraining order was issued.
Maybe you think that’s not adequate, but it certainly exists.
Explain how this is a threat to gun rights?
Have you heard of Wayne Andersen?
https://www.latimes.com/archives/la-xpm-1994-04-08-mn-43649-story.html
Did he needed to be saved from himself?
Was his ruling a threat to 4th Amendment rights?
I’m too lazy to look it up but does this clash with some 9th Circuit ruling since I’m pretty California has some law where you lose your guns if someone decides to file a restraining order on you, even a temporary one which doesn’t really require any evidence.
“ I write separately to point out that our Founders firmly believed in the fundamental role of government in protecting citizens against violence.”
***reads American history***
If that’s true they did a pretty terrible job in setting up a government that could do that.
A lot of bad historical analysis being cranked out by federal judges. They should all be required to read Gordon Wood’s ‘The Purpose of the Past. Reflections on the Uses of History.’
Do you want to punish people who are actually convicted of crimes, or punish innocent people who are merely suspected of being dangerous? Civil restraining orders are given out like Halloween candy.
Taking away someone’s guns is not always a punishment.
Yes, it is. It may be a justified punishment but it is always a punishment.
Good. Your rights shouldn’t be taken away because you have a vindictive ex. She can arm herself. She can try to get him prosecuted, IF the evidence is there.
To be sure, as the Government argues, Heller and Bruen also refer to “law-abiding, responsible citizens” in discussing the amendment’s reach (Bruen adds “ordinary, law-abiding citizens”). But read in context, the Court’s phrasing does not add an implied gloss that constricts the Second Amendment’s reach. Heller simply uses the phrase “law-abiding, responsible citizens” as shorthand . . .
It would be interesting to see whether in the entire corpus of 18th century American text on all subjects, there is even one instance of the use of, “law-abiding, responsible citizens,” in the context of guns. I am betting no such instance could be found. If not, could we please get rid of that formulation in gun debates, on the basis of Bruen’s injunctions covering the correct use of, “history and tradition?”
No, it’s a great argument. Every time a law-abiding, responsible citizen acts the fool, or worse, with a firearm they immediately cease being a law-abiding, responsible citizen. They instead become, and always were, a criminal, which is the total opposite of a law-abiding, responsible citizen. Therefore the argument holds because the group never included the person it previously included.
Like conservatism. Conservatism cannot fail, it can only be failed…
“They instead become, and always were, a criminal.”
That’s not how time works. Can you at least attempt to pretend like you have a rational argument?
No? Didn’t think so.
First, I sincerely doubt you understand how time “works.”
Second, “retroactivity” exists.
And third, mental gymnastics such as I described is one major component in how 2A absolutists maintain their 2A absolutism.
I don’t care how sincere you’d like to pretend you’re being: you’re an idiot alleging that someone who becomes a criminal at some point in their life, was therefore always a criminal.
Even for you, that’s remarkably dumb. Almost impressively so.
We’ve already discussed causality and you lost that argument too, remember?
I wonder why so many in the anti-gun cult are so dim. Is it because they are not used to their beliefs being challenged in the network broadcast and print media?
There are few law-abiding citizens who suddenly commit murder. Most have long criminal or mental illness histories
Sure. For extremely large values of, “few.”
That reminds me that only a few pistols are ever used to shoot someone. Care to take a stab at what the percentage is, of all pistols during their service lives?
You can’t reckon it for sure. But you can use the principle that all the pistols there are must account for all the pistol shootings that happen. Those figures have roughly known values. When you do the math, and take some reasonable figure like 50 years for the service life of a pistol, then you discover that during that interval approximately 2–4% of all the pistols in circulation will eventually be used to shoot someone. That is admittedly only a few. But it is a shockingly large few, given gun advocates’ endless blather about how tiny are the risks of gun prevalence.
I’d like to think that “law-abiding citizen” is shorthand for “citizen who hasn’t been convicted of a felony”. Because until you’ve been convicted of a felony, the government is legally obligated to treat you as innocent of the crime, which means that for all legal purposes you ARE ‘law abiding’. The government is not supposed to be taking official notice of crimes it hasn’t convicted people of, after all.
All references to “law abiding citizens” in Heller are consistent with this take. This is pretty much true of Bruen, too; The Court didn’t really expand on what they meant by the phrase.
Of course, it’s well established that, though a felony conviction didn’t carry an automatic loss of rights, loss of rights could be imposed as part of the sentence. So reading the phrase that way IS perfectly consistent with historical practice.
Unless I’ve missed it here, you and others defending this decision still haven’t answered the point that lots of rights are taken away from a person upon being accused, but not yet convicted, of a crime. The restraining order itself is a loss of 1A rights. So the piety of your “All rights possessed until conviction” stance isn’t really true. You constantly charge gun control advocates of treating the right to own a gun as a lesser right, but it seems to me you are treating it as greater than other rights.
I’m surprised you haven’t brought up the obvious point. At common law, a man had a right to beat his wife. Wife-beating was a historical and traditional part of privacy, something the courts protected from state interference, and certainly not something to take away ones second amendment rights over.
During the period between Bowers v. Hardwick and Casey, when proponents of abortion argued that abortion fell within the Bowers history and traditon standard as part of a “history and tradition of choice,” it was pointed out that a man’s right to initiate a pregnancy without his wife’s consent was far more well-established in this nation’s history and tradition than a woman’s right to terminate one without her husband’s.
Excellent point.
Indeed, it wasn’t until the mid 1960’s or so that the notion of marital rape started to be taken seriously.
Bruen forecloses any such analysis in favor of a historical analogical inquiry into the scope of the allowable burden on the Second Amendment right. Through that lens, we conclude that § 922(g)(8)’s ban on possession of firearms is an “outlier[] that our ancestors would never have accepted
…Does this say what I think it says? That the Founders were cool with domestic violence so domestic violence cannot be used to restrict rights?
No, and I have no idea why you think it means that.
The law in question imposes loss of a basic civil liberty after a non-adversarial civil process. The founders were clearly cool with depriving people of civil liberties as a consequence of a criminal conviction where the defendant had a right to a jury trial, counsel, the ability to call and cross examine witnesses.
What they weren’t cool with was imposing the consequences of a criminal conviction without these safeguards.
You want to CONVICT somebody of felony “domestic violence” with a full blown trial? Go ahead, and if you do that, you can take their rights away when you sentence them. NOT with a judge waving his hand.
By analogy, suppose that a state passed a law with a “political defamation protective order” that deprived you of the right to vote after a civil proceeding. You’d be OK with that?
I suspect it’s just THIS right you like the idea of being taken away without proper due process, because it’s a right you don’t want treated like a real civil right.
First, it’s not that easy to get a civil protective order.
Second, if the issue is level of process, I don’t see anything about that in the opinion. You don’t get to make up your own reasoning and then defend that.
Yes, it’s about the level of process, and you want a level of process appropriate to a privilege, while we want one appropriate to a right.
I think what is required is a level of process appropriate to the risk.
You’re off on a debate that seems in variance from the Fifth Cirtcuit.
Having worked courtside, it can be easy to get a civil protection order. It depends on a lot of things.
I have a law school friend who works in a nonprofit doing them. But she may be focusing on the negative stories.
It really depends on a lot of things. Types of court: general jurisdiction vs a court specifically focused on family issues. How the statutes are worded. The individual judges and magistrates. How the person behaves in the ex parte. If there is a non-profit or lawyer involved, how well they screen cases in the first place. Etc.
Yep – whenever I hear the ‘it depends’ answer, it’s probably right.
I cede to your expertise.
Bob is surprisingly correct. Don’t know if it’s based on actual knowledge or cynicism but judges do err on the grant side. Especially when they think they can undo it at a full hearing later.
It does say that.
I mean, if there were a “history and tradition” of disarming domestic abusers this law would be fine, presumably.
Why do you think there is no such history? Clue: For a long time people in power didn’t give much of a shit about domestic violence. Wonder when that started to change?
No. As usual, you’re wrong.
The Founders were uncool with taking enumerated civil rights from people without a criminal conviction.
I don’t think that’s historically accurate.
Got a basis for that or is “I don’t think” the basis?
Well you can start with the fact that “people” obviously didn’t include women (who lacked many civil rights), slaves (lacked all of them), free POC, natives, etc. So the “people” whose rights they were concerned with was a relatively small group to start with.
And there was no federal role in enforcing most rights anyway and kind of let the states do whatever, so yeah they were kind of cool with people not having rights!
Your assertion regarding women and slaves is simplistic. Women couldn’t vote, but all of the things in the Bill of Rights applied to them as well.
But let’s don’t argue that – it’s not worth the pixels because it’s ancient history. Let’s grant that your assertion is true. That means, what, the Bill of Rights is canceled? Any right that was violated one time – or 100,000 times -means that nobody else can have that right forever?
Ancient History.
LMAO. We’re literally in a scenario where judges today think this “ancient history” is the end all be all of constitutional interpretation for a modern society. We can’t move past it!
But even if courts didn’t take this approach it’s still not ancient history.
https://www.loc.gov/collections/slave-narratives-from-the-federal-writers-project-1936-to-1938/about-this-collection/
We have voice recordings of former slaves. When the last in this project were made in 1938, our current longest serving senators were 4-5 years old. The people making policy today were around when former slaves were still alive and could have talked to them.
You really didn’t address my point.
To me this is like the ongoing bail argument. Bad people (probably much worse than this husband) are arrested and many of them are released on bail and quite a few of them do violent stuff while out on bail, because that’s who they are. And the general public is outraged.
But you can’t deny a constitutional right based on an accusation, I don’t think. Otherwise they just don’t mean much.
You made a few points. I chose to address the history one because it was the most wrong.
Constitutional rights being denied based on an accusation happens all the time. The restraining order in this case is an example. You brought up pretrial detention, another example. I just don’t think the bright line you guys are painting actually exists. Maybe it should, but that is a different discussion.
bevis, the objection is that the Bruen/Dobbs notion of history and tradition overturns the notion of due process for personal rights in modern context. Which is a pretty easy case to make from the historical record. America’s founders were normatively a lot closer to the class-conscious authoritarians who governed Britain than we are today. Why not join up to denounce the absurd historical reasoning in Bruen/Dobbs?
The Bill of Rights as applied to women was vastly narrower than to men. To protect them, you see.
But if a conservative court is blindly invoking the ancestors as authorities, it’s a good idea to take a good look at what one is invoking.
“The Bill of Rights as applied to women was vastly narrower than to men.”
Can you be more specific? I did a quick mental search through the BoR for ones that didn’t apply to women. Troops could be quartered in widow’s houses? Widow’s houses could be searched w/o warrants?
To be clear, women got the short end of the stick in many, many ways, but which of those specifically involve the BoR?
I was thinking 5th – due process. Women wouldn’t own property, sign legal documents, leave their husbands…
Abigail Adams knew.
So we’re talking about “nor be deprived of life, liberty, or property, without due process of law;”?
I agree that the notion that a woman’s property all went to her husband when she married was pernicious, but what is the 5A angle? If Madge marries, her husband now owns her farm, but the government can’t seize it w/o due process. Is the argument that the act of marriage itself is a seizure without due process? That seems like a strained reading.
Or that agreeing to marry is giving up liberty w/o due process? Again, that seems a bit strained.
(I’m assuming that we’re not talking about the ‘life’ part. My dear departed father liked to tell us kids that Roman fathers could use capital punishment on their offspring until age 21. I think that also might have applied to spouses of any age – but I don’t think that was still the law in colonial America)
Maybe I’m too much a functionalist, but setting up a regime where one has rights but with such restrictions that there is rarely a chance for that to matter seems a regime with few actual rights.
I mean, under your paradigm blacks had rights as well, just not ones they could exercise very much. No property every owned to be seized without due process!
I agree that the notion that a woman’s property all went to her husband when she married was pernicious, but what is the 5A angle? If Madge marries, her husband now owns her farm, but the government can’t seize it w/o due process. Is the argument that the act of marriage itself is a seizure without due process? That seems like a strained reading.
I think the laws might have been more complicated than that. I seem to remember something about George Washington not being able to free his wife’s slaves for some reason. But that may have been particular to slaves, and laws regarding property might have been different.
More to the point, my opinion (in an IANAL way) is that due process already inherently includes the idea of equal protection of the law. That clause of the 14th Amendment was necessary because so many white men at the time didn’t believe that. How can someone be be receiving due process of law when the law treats those someones as less because they don’t have penises or the right skin color?
Strained reading or not, due process is really the central right guaranteed in the Constitution. So much so, that it is stated twice, to try and really bring the point home. (Really, how does the Due Process Clause of the 14th say anything different than in the 5th?) None of our other rights are secure if the government isn’t held to a high standard regarding what due process of law means. If the government can get away with locking someone up, taking their property, or executing them arbitrarily, then what does it matter if the reason for their ‘crime’ is a law that would be ruled to violate some other right?
Sarcastro, on women and property, the record is a lot more complicated than you seem to suppose. Widows, of course, owned property inherited from their husband’s estates. In some localities in New England, that even got treated as a de facto exception to customary understanding of enfranchisement, and propertied widows got to vote when other women could not.
Also, women who brought significant property to a marriage were in some areas, including at least sometimes in Virginia, the owners of that property throughout the marriage, and capable to bequeath that property separately from anything their husbands might want to do with it. If you look into it, I think you might discover that most of the property in Robert E. Lee’s family belonged to his wife.
I am reluctant to say I am talking about rules anyone could count on. With regard to both various times and various places, conformance to legal custom looks to have been less uniform, and divergence for actual practice seem to have been more commonplace. As always in history, you look to cases more than to laws if you want to know what actually happened.
Its either ancient history or it’s the holy shining oracle which must be consulted to determine all our decisions.
Voting wasn’t a civil right in the first place, until the 15th amendment. It was a privilege that the states could extend to whatever group the legislature thought appropriate.
But the fact is that not many states did so, especially before the 20th Century.
That inevitably means issues of particular importance to women didn’t get much political attention. So restricting the discussion to rights explicitly mentioned in the BoR seems unduly narrow.
You mean the idea that the Founders were fine with abrogating all sorts of rights without a criminal trial, from speech to assembly to bearing arms to counsel to speedy trial?
Even beyond the narrow demographics of who got rights, they did not apply nor were they thought of like they do today. More of a thumb on the scales than an actually inviolable thing.
For more, I recommend Will Baude’s scholarship. I don’t agree with everything he says, but he’s pretty good at the history parts. It’s not your grandpa’s originalism, but it has the benefit of being actually true.
Oops, reading down from the top I corrected your former comment. This one looks spot on.
They didn’t enumerate civil rights that protected women from domestic violence or freed the slaves. Good thing we decided they were full of shit on those fronts.
‘our ancestors’
Borderline mysticism.
?
As an assimilated immigrant, I have no problem thinking of past generations of Americans as my “ancestors.” Not literally, of course, but, having been “adopted” into this society, I am willingly adopting its history, and, henceforth, look at it as my own.
That’s all well and good, but consulting them for guidance as if they were infallible and superior is a bit much. Consulting them as if they were fallible and of limited knowledge and utterly ignorant of our present is a better approach
So, Ed G, you self-identify as American?
Did you pick your pronouns at the same time?
Nige, Mark Twain wrote of a contemporary lecture circuit comedian, a guy who styled himself, Petroleum Vesuvius Nasby. Twain thought the guy was funny.
Anyway, Twain described how Nasby would begin his act, staring fixedly into the audience, until folks started to wonder. Then Nasby would intone, “We are all descended from grandfathers.”
Whatever the audience made of that, it cracked up Mark Twain.
Hah.
Intentionally putting a woman in fear of being hit is assault, and men who do so can be disarmed as an ordinary side effect of the criminal justice process. But there does have to be some evidence, not “David Letterman appeared to me in a dream.”
I’ve seen so much misleading reporting about this case. Articles strongly suggesting in the headline, subheading, and first few paragraphs, that this involves criminals. If the non-adversarial, preliminary nature of these cases is mentioned, it’s very very low in the article.
I feel like a lot of the commenters here have relied on that reporting instead of reading and understanding the case.
I read the case. It’s terrible. And by the way, it’s totally wrong about the history– there were broad statutes that allowed the disarmament of dangerous persons dating back throughout the history of the Republic.
No, there were statutes that allowed the disarmament of people criminally convicted of being dangerous. There were no statutes that mere accusation to suffice.
Seems odd that a person can be detained in jail prior to conviction on “mere accusation” that they are dangerous or likely to flee from prosecution, yet they can’t have their guns confiscated.
The surety statutes discussed in the opinion seem like noteworthy counter examples.
So far no courts have agreed with you.
Well, maybe a few, but not the majority.
Then you should be able to cite them instead of your usual nonsense, yes?
Odd that you didn’t…
You can go on PACER and read the briefing. It’s all there.
So you don’t actually have any citations to support your argument? Thought not.
In what sense are they non-adversarial?
The opinion says that the protective order at issue was “agreed,” which I take to mean that Rahimi consented to its terms. If that is the case can’t Rahimi’s consent be treated as a waiver of his 2d Amendment rights? Or does the subsequent Bruen decision somehow operate to revoke his consent on the grounds that the consent was not “knowing” since he failed to anticipate a change in law?
I think that this might be the strategy going forward – to get an explicit waiver of 2A rights as part of a consensual RO, just as a parolee as a condition of parole waives other constitutional rights.
I wonder, too, whether a law imposing criminal penalties for violating a RO could have physical possession of a gun as an enhancer. That should pass muster.
What incentive does a respondent to agree to that?
Hard to see how it wouldn’t, although crafting a valid federal statute would be tricky.
Consenting to the issuance of the order isn’t necessarily equivalent to consenting to the application of the collateral consequences imposed by a separate federal statute.
At common law, a man had a right to beat his wife with a stick no thicker than his thumb. Exercising this historical and traditional right could provide no historical or traditional basis for eliminating a man’s 2nd Amendment rights. History and tradition emphasized a man’s right to maintain discipline and not be sassed in his own home, free of state interference.
Actually, I read that that definition of “rule of thumb” is apocryphal.
It’s a real thing. The standard of what was permissable varied somewhat from state to state. The technical term is “marital chastisement.” It began being abolished in the late 19th century, but remained legal in some states well into the 20th century.
https://www.jstor.org/stable/1106112#metadata_info_tab_contents
The practice may have been a real thing, but I think the actual term “Rule of thumb” derived from the original definition of an “inch”: The length of a man’s thumb.
No, it derived from aproximating height or distance using the thumb, still a handy enough hack.
But not, in any case, from sticks and beating women.
No, other traditions derived from that.
withdrawn. should have read the whole thread properly.
How will this affect efforts rto curb gang violence?
Negligibly.
My point in raising the fact that wife-beating was legal, and indeed protected as part of “marital privacy” well into the 20th century, is that if there is an argument to be made that “history and tradition” focusing on when fireams were restricted in the 18th and 19th centuries shouldn’t be the sole basis for determining when restrictions on firearms are constitutional today, domestic violence would probably have to be Exhibit A of the brief for that argument.
I write separately to point out that our Founders firmly believed in the fundamental role of government in protecting citizens against violence, as well as the individual right to keep and bear arms—and that these two principles are not inconsistent but entirely compatible with one another.
Yeah, except for the tens of thousands of instances every year where those principles turn out to be at odds. Does judge Ho suppose he can vaporize the facts of a case in front of him if he just asserts as principle some contrary generality which is not before the court, and which he could not prove anyway?
Some judges have developed a bad habit to assert as facts some really peculiar stuff they just make up, to help a case come out where they want it to.
Imagine if people other than judges started doing that.
Eh, Stephen?
Eh?
They’d probably go around saying how the militaries of the world are all oblivious and ignorant because the tank is clearly obsolete.
That’d be a real hoot.
Get a grip.
Many commenters are arguing that gun rights restrictions should only be available after an individual is convicted of a crime, or maybe only a violent crime. Meanwhile, state and federal laws restrict gun ownership for people who have been committed to a mental institution or adjudged a risk to themselves or others due to mental illness in proceedings that are civil, not criminal. Are those restrictions illegitimate?
“… committed to a mental institution or adjudged a risk to themselves or others due to mental illness in proceedings that are civil, not criminal. Are those restrictions illegitimate?”
I’m not up to speed on the degree of protection/process before involuntary commitments, but ISTM that anything past a temporary exigent commitment ought to have at least the same levels of proof and process as a criminal trial. Being locked up is being locked up.
Due process requires civil commitment to be proven by clear and convincing evidence, Addington v. Texas, 441 U.S. 418 (1979), not by evidence beyond a reasonable doubt.
Interesting you mentioned that. It would seem to me that the restriction on liberty in a civil commitment is a lot more than banning the bearing of arms. So I don’t think the position that you need a criminal conviction before you deprive someone of his 2d Amendment rights is sound.
The question, though, is whether a restraining order as described in the statute meets that level. I don’t think it does.
Perhaps we need a procedure akin to civil commitment, where the Govt. or the State shows by clear and convincing evidence that allowing someone to carry arms poses a danger, based on his past behavior.
If someone is too dangerous to be trusted with a gun, he shouldn’t be allowed to be free at all.
If someone is too dangerous to be trusted with a gun, he shouldn’t be allowed to be free at all.
The unstated premise of what you wrote here is that people with guns are no more inherently dangerous than people without guns. I think that is too debatable a point to leave it as an unstated premise.
Even granting that, what you wrote could be interpreted either as then concluding that people shouldn’t have their gun rights restricted because we allow people without guns to be free, or that more “dangerous” people should be locked up.