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Judge James Ho's Revised Concurrence in the Second Amendment / Restraining Order Case
Yesterday, the Fifth Circuit released an updated version of its opinion in U.S. v. Rahimi, which held that people can't be disarmed just based on a civil restraining order. The changes to the majority are comparatively minor, but Judge Ho used the release of the new opinion as an occasion to put out a substantially enlarged version of his concurrence, which I thought was worth passing along:
The right to keep and bear arms has long been recognized as a fundamental civil right. Blackstone saw it as an essential component of "'the natural right'" to "'self-preservation and defence.'"And the Supreme Court has repeatedly analogized the Second Amendment to other constitutional rights guaranteed to every American. See, e.g., Johnson v. Eisentrager (1950) (describing the First, Second, Fourth, Fifth, and Sixth Amendments as the "civil-rights Amendments"); Konigsberg v. State Bar of Cal. (1961) (comparing "the commands of the First Amendment" to "the equally unqualified command of the Second Amendment"); N.Y. State Rifle & Pistol Ass'n v. Bruen (2022) (quoting Konigsberg).
But lower courts have routinely ignored these principles, treating the Second Amendment as "a second-class right." So the Supreme Court has now commanded lower courts to be more forceful guardians of the right to keep and bear arms, by establishing a new framework for lower courts to apply under the Second Amendment.
"When the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct." "The government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation." "[T]his historical inquiry that courts must conduct will often involve reasoning by analogy—a commonplace task for any lawyer or judge. Like all analogical reasoning, determining whether a historical regulation is a proper analogue for a distinctly modern firearm regulation requires a determination of whether the two regulations are 'relevantly similar.'"This framework "is neither a regulatory straightjacket nor a regulatory blank check." It requires the government to "identify a well-established and representative historical analogue, not a historical twin."
Our court's decision today dutifully applies Bruen, and I join it in full. I write separately to explain how respect for the Second Amendment is entirely compatible with respect for our profound societal interest in protecting citizens from violent criminals. Our Founders firmly believed in both the fundamental right to keep and bear arms and the fundamental role of government in combating violent crime.
[I.] "[T]he right to keep and bear arms … has controversial public safety implications." But it's hardly "the only constitutional right" that does. To the contrary, "[a]ll of the constitutional provisions that impose restrictions on law enforcement and on the prosecution of crimes fall into the same category."
So any legal framework that involves any of these constitutional provisions can have significant and controversial public safety consequences. A framework that under-protects a right unduly deprives citizens of liberty. But a framework that over-protects a right unduly deprives citizens of competing interests like public safety.
Take, for example, the exclusionary rule. See Mapp v. Ohio (1961). Since its inception, the rule has been sharply criticized for over-protecting the accused and releasing dangerous criminals into our neighborhoods. It's often said that nothing in the Constitution requires the criminal to "go free because the constable has blundered." "The exclusionary rule generates substantial social costs" by "setting the guilty free and the dangerous at large."
The same can be said about Miranda v. Arizona (1966). The Supreme Court has "repeatedly referred to the Miranda warnings as 'prophylactic' and 'not themselves rights protected by the Constitution.'"What's more, "[i]n some unknown number of cases the Court's rule will return a killer, a rapist or other criminal to the streets and to the environment which produced him, to repeat his crime whenever it pleases him."
So it's easy to see why decisions like Mapp and Miranda have been criticized for over-protecting constitutional rights and harming public safety.
But there's a big difference between the first criticism and the second, at least as far as the judiciary is concerned. It's our duty as judges to interpret the Constitution based on the text and original understanding of the relevant provision—not on public policy considerations, or worse, fear of public opprobrium or criticism from the political branches.
And that's precisely the problem here: Members of the Supreme Court have repeatedly criticized lower courts for disfavoring the Second Amendment. The Supreme Court has now responded by setting forth a new legal framework in Bruen. It is incumbent on lower courts to implement Bruen in good faith and to the best of our ability.
Bruen calls on us to examine our Nation's history and traditions to determine the meaning and scope of the Second Amendment. It's hardly the first time that the Supreme Court has looked to history and tradition to interpret constitutional provisions. And it surely won't be the last.
[II.] Those who commit violence, including domestic violence, shouldn't just be disarmed—they should be detained, prosecuted, convicted, and incarcerated. And that's exactly why we have a criminal justice system—to punish criminals and disable them from engaging in further crimes.
The Constitution presumes the existence of a criminal justice system. That system allows the government to deny convicted criminals a wide range of liberties that it could not deny to innocent, law-abiding citizens. For example, the government cannot deprive innocent citizens of their liberty of movement. But it can certainly arrest and incarcerate violent criminals.
Arrest and incarceration naturally entail the loss of a wide range of liberties—including the loss of access to weapons. 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 (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.").
The Supreme Court has also made clear that our Nation's history and traditions include "longstanding prohibitions on the possession of firearms by felons"—and that such measures are "presumptively lawful." So the government can presumably disarm dangerous convicted felons, whether they're incarcerated or not, without violating the Second Amendment.
The Second Amendment is not "a second-class right." It is not "subject to an entirely different body of rules than the other Bill of Rights guarantees." That principle guides us here: The government can impose various restrictions on the rights of dangerous convicted felons, consistent with our Nation's history and traditions—and that includes the right to keep and bear arms.
[III.] The power to incarcerate violent criminals is not just constitutionally permissible—it's imperative to protecting victims. After all, anyone who's willing to break the law when it comes to domestic violence is presumably willing to break the law when it comes to guns as well. The only way to protect the victim may be to detain as well as disarm the violent criminal.
For example, the government can detain and disarm, not just after conviction, but also before trial. Pre-trial detention is presumed by the Excessive Bail Clause and the Speedy Trial Clause. And it plays a significant role in protecting citizens from violence, including domestic violence.
In addition, the government can detain and disarm, based not just on acts of violence, but criminal threats of violence as well. After all, to the victim, such actions are not only life-threatening—they're life-altering, even if they don't eventually result in violence.
[IV.] 18 U.S.C. § 922(g)(8) disarms individuals based on civil protective orders—not criminal proceedings. As the court today explains, there is no analogous historical tradition sufficient to support § 922(g)(8) under Bruen.
Moreover, there are additional reasons why disarmament based on civil protective orders should give us pause. Scholars and judges have expressed alarm that civil protective orders are too often misused as a tactical device in divorce proceedings—and issued without any actual threat of danger. That makes it difficult to justify § 922(g)(8) as a measure to disarm dangerous individuals.
[A.] "Many divorce lawyers routinely recommend pursuit of civil protection orders for clients in divorce proceedings … as a tactical leverage device." Jeannie Suk, Criminal Law Comes Home, 116 YALE L.J. 2, 62 n.257 (2006). See also, e.g., Randy Frances Kandel, Squabbling in the Shadows: What the Law Can Learn from the Way Divorcing Couples Use Protective Orders as Bargaining Chips in Domestic Spats and Child Custody Mediation, 48 S.C. L. REV. 441, 448 (1997) (civil protective orders are deployed as "an affirmative element of divorce strategy").
That's because civil protective orders can help a party in a divorce proceeding to "secure [favorable] rulings on critical issues such as [marital and child] support, exclusion from marital residence and property disposition." Protective orders can also be "a powerful strategic tool in custody disputes."
That makes civil protective orders a tempting target for abuse. Judges have expressed "concern[ ] … with the serious policy implications of permitting allegations of … domestic violence" to be used in divorce proceedings. And for good reason. "[N]ot all parties to divorce are above using [protective orders] not for their intended purpose but solely to gain advantage in a dissolution." Scott A. Lerner, Sword or Shield? Combating Orders–of–Protection Abuse in Divorce, 95 ILL. BAR J. 590, 591 (2007). Anyone who is "willing to commit perjury can spend months or even years … planning to file a domestic violence complaint at an opportune moment in order to gain the upper hand in a divorce proceeding." David N. Heleniak, The New Star Chamber: The New Jersey Family Court and the Prevention of Domestic Violence Act, 57 RUTGERS L. REV. 1009, 1014 (2005). So "[a] plaintiff willing to exaggerate past incidents or even commit perjury can have access to a responsive support group, a sympathetic court, and a litany of immediate relief." Peter Slocum, Biting the D.V. Bullet: Are Domestic-Violence Restraining Orders Trampling on Second Amendment Rights?, 40 SETON HALL L. REV. 639, 662–63 (2010).
Moreover, these concerns are exacerbated by the fact that judges are too often ill-equipped to prevent abuse. Family court judges may face enormous pressure to grant civil protective orders—and no incentive to deny them. For example, family court judges may receive mandatory training in which they're warned about "the unfavorable publicity" that could result if they deny requests for civil protective orders. As one judge has noted, "[a] newspaper headline can be death to a municipal court judge's career." So "the prospect of an unfavorable newspaper headline is a frightening one." To quote another judge: "Your job is not to become concerned about all the constitutional rights of the [defendant] you're violating as you grant a restraining order. Throw him out on the street, give him the clothes on his back and tell him, 'See ya' around.'"Yet another judge said: "If there is any doubt in your mind about what to do, you should issue the restraining order."
As a result, "[r]estraining orders … are granted to virtually all who apply." So there's a "tremendous" risk that courts will enter protective orders automatically—despite the absence of any real threat of danger. In one case, for example, a family court judge granted a restraining order on the ground that the husband told his wife that he did not love her and was no longer attracted to her. See Murray v. Murray (N.J. App. Div. 1993). "There was no prior history of domestic violence," yet the judge issued the order anyway. Another judge issued a restraining order against David Letterman on the ground that his presence on television harassed the plaintiff. See Todd Peterson, David Letterman Fights Restraining Order, PEOPLE (Dec. 21, 2005).
[B.] Moreover, the consequences of disarming citizens under § 922(g)(8) may be especially perverse considering the common practice of "mutual" protective orders.
In any domestic violence dispute, a judge may see no downside in forbidding both parties from harming one another. A judge "may think that mutual restraining orders are not substantially different from regular restraining orders—after all, the goal is to keep the parties away from one another so that the violence will not continue." Jacquie Andreano, The Disproportionate Effect of Mutual Restraining Orders on Same-Sex Domestic Violence Victims, 108 CAL. L. REV. 1047, 1054 (2020). "Judges may also feel that issuing a mutual restraining order saves time because they do not have to hear testimony and make a finding regarding which party is a primary aggressor or even that one party has committed domestic violence."
But "[t]hese judicial assessments have often led to the issuance of unmerited mutual restraining orders, namely in situations where one party is the abuser and the other party is a victim." Id. (emphasis added). As a result, "both parties are restrained even if only one is an abuser." See also Elizabeth Topliffe, Why Civil Protection Orders Are Effective Remedies for Domestic Violence but Mutual Protective Orders Are Not, 67 Ind. L.J. 1039, 1055–56 (1992) ("[J]udges often issue a mutual protection order without any request from the respondent or his lawyer…. [J]udges and lawyers … may be tempted to resort to mutual protective orders frequently. However, when they do this in cases where there truly is one victim and one batterer, they ignore some of the real difficulties of mutual protection orders.").
The net result of all this is profoundly perverse, because it means that § 922(g)(8) effectively disarms victims of domestic violence. What's worse, victims of domestic violence may even be put in greater danger than before. Abusers may know or assume that their victims are law-abiding citizens who will comply with their legal obligation not to arm themselves in self-defense due to § 922(g)(8). Abusers might even remind their victims of the existence of § 922(g)(8) and the entry of a mutual protective order to taunt and subdue their victims. Meanwhile, the abusers are criminals who have already demonstrated that they have zero propensity to obey the dictates of criminal statutes. As a result, § 922(g)(8) effectively empowers and enables abusers by guaranteeing that their victims will be unable to fight back.
[* * *]
We must protect citizens against domestic violence. And we can do so without offending the Second Amendment framework set forth in Bruen.
Those who commit or criminally threaten domestic violence have already demonstrated an utter lack of respect for the rights of others and the rule of law. So merely enacting laws that tell them to disarm is a woefully inadequate solution. Abusers must be detained, prosecuted, and incarcerated. And that's what the criminal justice system is for. I concur.
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Yes, crimes are for the criminal justice system. If someone figures out a better way to identify criminals, then incorporate it into the criminal justice system.
“Those who commit violence, including domestic violence, shouldn’t just be disarmed—they should be detained, prosecuted, convicted, and incarcerated. ”
Yeah, that’s great. I’m sure cop shops everywhere will take Ho’s words to heart and stop ignoring domestic violence reports. And when cops don’t (of course abused citizens have no recourse when cops ignore them, I believe in part thanks to the 5th circuit), I’m sure Ho will offer his thoughts and prayers.
These fools are winning one fight though – they’re convincing liberals to buy guns.
” I’m sure cop shops everywhere will take Ho’s words to heart and stop ignoring domestic violence reports.”
In at least the jurisdictions I’m familiar with (and my sense is that it is pretty widespread) that is the norm. As in, once they establish hubby hit wifey, hubby is going to jail, even over wifey’s protests. And the detectives show up a couple of days later, when bruises will be at full bloom, to take pictures. They pull those out two months later at trial if the wife now protests the whole thing was a big misunderstanding.
I agree the situation was quite different a couple of decades ago, but I think there has been a big sea change since then.
So you want to put men in jail, even if the supposed victim says that no crime has been committed. That is extreme government meddling into private lives. Where are the Libertarians here?
‘Often Libertarian’ has morphed to ‘On Rare Occasion Libertarian’.
He didn’t write that “the supposed victim says that no crime has been committed.” Nice straw man.
Judge Ho’s rant about abuse of domestic violence orders is quite contrary to the facts of what happens in those cases. The decisions in these areas ought to be made by Congress and state judges, not by Fifth Circuit concurrence-writers.
Gun rights types have no idea both what a dangerous issue this is and what a toxic one it is.
Battered women are killed by their partners all the time. I believe the stat is literally that if a battered wife is a homicide victim, more than 50% of the time the husband is the killer. So there’s an enormous danger that a wife beater will try and kill his partner. You have to get the guns out. Waiting for months while we bring a case to trial will mean dead women. And the deaths will be directly traceable to the fact that the courts could not disarm the husband.
This issue could therefore completely discredit the gun rights movement.
And the arguments they make, including Judge Ho’s, are crazy. Men have every opportunity to contest false allegations. They usually don’t because the allegations usually aren’t false. Often the women have bruises or there is physical evidence of an attack. In any event, if there’s some situation where the underlying allegation is false, as applied challenges are available. It’s no reason to invalidate a statute that literally saves women’s lives and put guns in the hands of dangerous criminals who have no respect for the obligations to the state that the Second Amendment is expressly premised on.
re: “gun-rights types”
Have you noticed that the anti-gun-rights types are also anti-other-rights types — right to speak your mind, right to hold (and practice) religious beliefs, right to keep the fruits of your labor, etc.
I support 2nd Amendment rights. I don’t have a problem with the result of either Heller or Bruen.
But the gun rights movement is full of people who don’t understand what a powder keg this issue is.
So, what were your expectations in regards to CCW reform and “blood in the streets”?
When I contrast the practical status of 2nd amendment rights when I was a teen, compared to today, I think we’re a hell of a long way from any powder keg that could discredit 2nd amendment rights.
When I say practical status, I’m not talking about the degree of formal legal protection, but rather the de facto respect the right got back then, in terms of laws that weren’t yet in existence. Age limits, controls on what you could buy and own, where you could go with firearms. It was much looser back then, and no powder keg blew up.
Gun control wasn’t adopted by popular acclaim, remember. It was a combination of top down ‘elite’ desire for such laws, (Mainly politicians who looked at Kennedy, and thought, “That could be me!”) and deliberate preference falsification by a much less diverse media.
It wasn’t until the internet came along, and people were able to talk widely without the media’s intermediation and censorship, that gun owners realized they weren’t a powerless minority surviving at the sufferance of a hostile public, and started making a major push to get their rights restored.
Yes, restored.
I think most CCW license holders are very responsible. So I didn’t think that would be a big deal.
Wife beaters, on the other hand, need to be kept as far away from guns as possible.
If they’re that dangerous, lock them up until trial. But you people won’t do that, because it means your pet blacks will be disproportionately affected.
So the only way to prevent this supposedly massive imposition on freedom is to impose a much bigger one?
No. If you demonstrate, with compelling evidence, that the person is too dangerous to be allowed free until trial, lock him up (see U.S. v. Salerno). Otherwise, you don’t get to piecemeal remove rights.
So… by “no” you mean “yes.”
Let’s ask it another way. In general, do you think an accused wife-beater would rather be locked up until trial, or surrender their guns?
You’re asking about a choice which (as far as I know) is not given to anyone.
If someone is beating their wife, prove it in court and lock them up. (And don’t give us that bull about “months waiting to bring the case to trial”. That’s what pre-trial confinement is for.) But if you don’t have enough evidence to lock them up, you don’t have enough evidence to take away their guns, either.
You keep claiming this is a “powder keg” but keep ignoring the notable lack of explosions in all the places that don’t have your preferred gun restrictions.
You are also conspicuously ignoring the statistics showing that battered women are the people most likely to benefit from owning a gun – and the people most likely to be inhibited from such ownership by the very policies you are calling for.
Every man disarmed by that federal statute has been proven in court to be guilty of DV. Every one.
BS.
Flat wrong. Many of those disarmed are never convicted of anything. A few aren’t even accused of domestic violence. Good lord, read the article. It’s filled with examples.
Until they’re convicted of something, they’re accused wife beaters. As in, “Innocent until proven guilty.”
If they’re that awful, what’s the excuse for not charging them?
No Brett. Juries are wonderful, but the notion that we are stuck until we can empanel a jury and have no way of finding out the truth is stupid and dangerous.
‘what’s the excuse for not charging them?’
A perennial question for victims of domestic violence and DMV activists.
Brett, you continue to make this argument without addressing the fact that courts take away constitutionally protected rights all the time prior to a conviction. Why should gun rights be different?
You know what? Courts routinely issue restraining orders of the form “Do not approach this particular person.”, “Do not speak to this particular person.”
They do not routinely issue restraining orders of the form, “Remain in seclusion, apart from the rest of humanity.” or “Do not speak so much as a word to anybody.”
So, if you want an analogous restraining order applying to guns, it wouldn’t be, “Give up all your guns.”, it would be “Don’t approach this particular person with a gun.”
I think you’d find that the complaints and the constitutional issues would evaporate like the morning dew if the restraining orders were actually similar in that regard.
That’s true for restraining orders (I suppose), but what about pre-trial detention? How about denying bail because the judge feels the prisoner is too dangerous to release, or a flight risk? Isn’t that comparable to temporarily losing the right to possess guns? I like your rights not lost until conviction principle in theory, but I think society recognizes that in some cases, some individual rights need to be taken away before conviction for safety’s sake, and I think this might be an example of that.
I don’t think Brett is objecting to pre-trial detention. If I were to guess, he’d like to see more of it.
But think about what you are saying when you release someone pre-trial with a no guns order. You are saying two things are both true:
1)it’s a reasonable risk to release this guy into society now, even though post trial we might lock him up for years, and
2)it’s not a reasonable risk to let him have guns pre-trial
There is presumably a spectrum of defendants:
1)a slice who (the wrongly accused for one example!) can be trusted to both be free and to have guns pre-trial
2)another slice that are safe to release if and only if you tell them no guns because they would commit more crimes involving a gun without that prohibition AND will obey the prohibition
3)those who can’t be trusted to obey a prohibition, and so can’t be trusted to be free at all
And I think the point of contention is how many defendants are in slice #2 – I get the sense you think that slice is pretty wide, while Brett thinks people are mostly in either slice #1 or slice #3, and slice #2 is a tiny set of people. And my sense is that common practice seems to be to assume that slice #1 is negligible relative to slice #2 (or slice #3).
I don’t have hard numbers, or even know if they exist, but I sure hear a lot of anecdotes of the form ‘Fred is caught with a gun/commits a crime with a gun while on pretrial release with a no-guns condition’. Heck, I regularly hear about cases where Fred gets caught with/commits a crime with a gun multiple times while waiting for trial on the original charges, having been told (again!) not have guns and released again[1].
That makes my gut suspect that slice #2 isn’t all that wide relative to #1 and #3.
And I also suspect that #1 isn’t negligible – I think (corrections welcome) that ‘no guns’ are part of the boilerplate for almost every pre-trial release, and that doesn’t mean that every DWI is going to shoot someone before trial if only his release conditions prohibit gun possession.
[1]And that’s why the existing system seems nonsensical … you get let out with a no guns condition, then get caught with a gun again and … you get let go with yet another ‘don’t do that’ admonition? That just seems nuts. ISTM that people who are on pretrial release and commit any other crime more serious than jaywalking ought to not be released again.
Thanks for that response. You make a good argument, although I’m not sure I agree completely. But I really wasn’t trying to defend these no gun orders as a general principle. I was just trying to point out that it doesn’t make sense to criticize them solely because they are issued prior to conviction.
“I don’t think Brett is objecting to pre-trial detention. If I were to guess, he’d like to see more of it.”
My view is perhaps a bit idiosyncratic: I think there should be a lot more pre-trial detention when violent crimes are alleged, but I also think that the government should have a legal obligation to make whole everybody it takes action against and does not subsequently convict.
When the government detains you prior to a trial, and subsequently convicts you, the pre-trial detention can be considered part of the sentence, and justified that way. But when the government locks you up, and puts you through hell, and does NOT convict you?
Legally, they’ve done that to an innocent man, who deserves recompense. Such detention may be necessary to maintain a justice system, but so is building court rooms, hiring judges and police, and we don’t impose those costs on random fall guys, we pay them out of the general budget, because they are spent to assure the general welfare.
Why should this particular aspect of having a justice system be made to fall on specific legally innocent people, rather than being treated as just another cost to be bourn by the public in general?
So, I think that as a general moral matter, and I’d love to see it made a legal principle, too, all who are not convicted should be made whole at the expense of the government that imposed those costs on them.
And were that so, we’d be less upset by the whole idea of pre-trial detention, wouldn’t we?
I don’t know how idiosyncratic that view is, but it makes perfect sense to me.
“They usually don’t because the allegations usually aren’t false.”
That seems at odds with: “Many divorce lawyers routinely recommend pursuit of civil protection orders for clients in divorce proceedings … as a tactical leverage device.”
Ho’s wrong, but even if he were right, they can challenge as applied.
Ho is not wrong. Courts hand out restraining orders like popcorn. There are TV personalities who have been hit by restraining orders from women they have never met.
That’s not only BS, but there are procedural requirements in the statute. A “like popcorn” DVRO doesn’t qualify.
That broader statistic doesn’t tell us about how likely guys are to murder their loved ones, so much as it tells us that murderers often have intimate partners.
Other statistics tell us that most murders are committed by an small and aberrant segment of the population, with extensive track records of criminality and violence. Such people don’t exempt those they associate with from their predation.
Wife beaters are extremely dangerous and your attempts to minimize this are despicable. You should not run interference for people who beat women.
Part of not minimizing how awful wife beaters are, is not agreeing to let you treat somebody as one without convicting them in a court of law.
Get over the idea that the government is entitled to treat people as though they were guilty of terrible crimes on the basis of obvious guilt that they somehow just can’t be bothered to prove in a criminal trial.
Weird how all the other rights infringed when someone is accused of a crime – detained, restrained, interviewed, required to post bail, unable to leave the jursidiction, barring orders – don’t enter into it.
I keep asking Brett to answer that same point, but he never responds.
I agree wife beaters are despicable and dangerous. I’m happy for wife beaters[1] to be sentenced to LWOP. That prevents them from shooting their ex. Or stabbing her, or just beating her to death.
That seems more protective to me than ‘take their (legal) guns away (that we know about) and let them run free to take their revenge by other means’. The usual size differential means men generally don’t need guns to kill women.
[1]Assuming we’re talking ‘broke her jaw’ as opposed to ‘briefly grabbed her arm’.
Seems like the minimum that could be done. Restraining or barring orders aren’t going to impose actual physical restraints on the alleged abuser seeking out his accuser, but they get issued all the same.
Lost on your is the fact that these ‘wife beaters’ you’re so concerned about, in many cases, have not been convicted of beating their wife at all.
Your argument is literally nothing more than ‘think of the children!’ with a different noun.
Wasn’t this person held without bail for felony assault?
You can detain someone prior to conviction. You can issue restraining orders prior to conviction. You can command someone not to leave the jurisdiction prior to conviction. But suddenly, when gun rights are concerned, you have to have a conviction.
Did you wake up today with the intent to be disingenuous with your comments, or is this standard behavior for you?
If you can’t be bothered to be honest with your remarks, I can’t be bothered to treat them as anything other than stupidity.
What on earth are you talking about? Your comment pointed out that these ‘wife beaters’ haven’t been convicted, and I’m responding to that point. How is that disingenuous? What a weird response.
Do I really have to spell everything out for you?
Everything you complained about happens after someone is *charged* with a crime, and before a conviction. They are not granted in perpetuity, and the rights in question are only curtailed because the Government has enough probable cause to charge. If those charges are dropped, or the suspect is not convicted, those restrictions are gone.
What part of this do you not understand? The people you want to strip rights from is not in response to a pending criminal trial where they’ve been charged with a crime. They also have not been convicted of any of those ‘wife beater’ charges.
You want fundamental constitutional rights to be taken away based on nothing more than civil complaints.
Fuck. That. Noise. That isn’t how America operates.
1) You still haven’t explained how anything I wrote was disingenuous.
2) I’m not complaining about anything, nor am I wanting anyone’s rights to be stripped.
3) Is the criminal/civil distinction really significant in this regard, or are you just being pedantic? Don’t civil protection orders take away other fundamental rights based on nothing more than civil complaints? Are you saying that all CPOs are unconstitutional? Or are you saying that second amendment rights are more fundamental than other rights?
4) A piece of advice, which you should feel free to take or leave. Try being less of a dick.
That CDC study says that:
(IPV is intimate partner violence.) A proviso: “NVDRS data are available from a limited number of states and are therefore not nationally representative.” OH/GA/NC are the most populous states in the data set. Those numbers are significantly at odds with the FBI’s UCR, which says roughly a third of all female homicide victims are current or former wives or girlfriends of the suspect, with “other arguments” being a majority of both subsets. 2015, 2017 and 2018 are almost exactly in line with those numbers; 2016 does not break them out that way.
If the CDC’s 11.2% number is right, out of the FBI’s number of wives killed by current or ex-husbands, Esper has a laser-sharp focus on roughly 50 to 60 murders per year, less than a fifth of the number of juvenile gang killings (a tenth in 2015!) or justifiable homicides, and much closer to the number of children killed by babysitters. Please, won’t anyone think of the deadly babysitter threat?
The figure that should be driving policy discussions on this legal question is, how many men who are subject to a restraining order but have not been charged with or convicted of a disqualifying crime would go on to wrongfully use a gun? The “more than 50%” figure doesn’t answer that question.
No it shouldn’t because it is unacceptable if one woman gets shot.
Ahh, yes, so it’s acceptable to disarm one million people inappropriately to save one woman from being shot.
Voltaire is rolling in his grave.
Rights and due process become optional if even one woman is at risk?
Ah, yes, the old, “Your policy can’t fail even once, mine is allowed to fail endlessly.” ploy.
Screw that.
I would rather women live. You guys are dangerous.
Unless of course, it means locking up your pet blacks for violent crimes. Then you’re happy to let them free with no cash bail right after raping women.
‘They’re not a “dangerous criminal” until they’re convicted, you fucking fascist.’
Not nearly as dangerous as you are trying to be right now.
How could denying people rights because of fears of potential violence possibly go wrong?
Oh please – clutch your goddamn pearls somewhere else. Nobody here is going to sleep with you.
Every person murdered by a gun is the 2nd amnedment being failed, not failing.
They’re not a “dangerous criminal” until they’re convicted, you fucking fascist.
And the allegations usually are false or at best, unprovable.
“Men have every opportunity to contest false allegations. They usually don’t because the allegations usually aren’t false.”
That proves too much – you could with equal accuracy say that people accused of crimes have every opportunity to contest false allegations, but they usually don’t, they usually plead guilty.
Thus, freeing accused criminals prior to trial endangers the public; best to keep them in jail.
The decisions in these areas ought to be made by state legislatures and not by Congress or the courts.
The decision should also not trample due-process.
There’s plenty of due process in that federal statute. It guarantees the right to contest the allegations.
In theory, yes. In practice, the man will show up to hearing, have an “opportunity to participate,” deny that he assaulted or threatened the woman at all, and the judge will say “Ehh, I’m not really sure what happened, but I’ll grant the order. Just stay away from her.”
That should not be grounds to lose a Constitutional right.
But the court also says this:
“The validity of the underlying protective order, and Rahimi’s breach of it, are not before us, though the order’s underlying prohibitions, e.g., restraining Rahimi from committing family violence, from using or threatening use of physical force, from following, harassing, annoying, abusing, or tormenting his ex-girlfriend, and from going within 200 yards of his ex-girlfriend or her family (including their child), are plainly lawful and enforceable.”
There are constitutional rights being impacted here as well. Ok or no?
Which specifically? There’s no constitutional right to threaten the use of force, or to follow, harass or annoy his ex-gf. The 200 yards may be constitutionally problematic, but it’s not anything specific.
Well there’s definitely a 1st amendment right to annoy. And as you point out, we think there is a right to travel although you have to look a bit harder to find that one
I don’t think there’s a 1st Amendment right to annoy. You have a 1st Amendment right to speak, and the consequence may be that someone is annoyed, but that’s not quite the same as doing things intentionally to annoy someone (which is not protected). For example, you don’t have the right to speak to an unwilling, captive audience.
Regarding travel, I think the 200 yard restriction COULD potentially violate that, but doesn’t necessarily, as it’s unlikely that the places where you’d want to travel happen to be within 200 yards of the protectee.
So some rights are not absolute, but the 2nd amendment is? What is the limiting principle? Guns are good, therefore they get special solicitude?
Which right am I claiming is not absolute? And when did I claim the 2nd Amendment is absolute?
“ Otherwise, you don’t get to piecemeal remove rights.”
But that’s what this protective order is doing with rights other than 2nd amendment rights. Is that acceptable for non-2nd rights? Judge Ho doesn’t think so
Indeed. It’s pretty weird that further up he writes about interpreting the Constitution and not engaging in public policy analysis, and then immediately launches into a bunch of public policy analysis.
“Those who commit or criminally threaten domestic violence have already demonstrated an utter lack of respect for the rights of others and the rule of law. So merely enacting laws that tell them to disarm is a woefully inadequate solution.”
Just like “gun free” zones.
Ah yes the originalist maxim of “women be lying” means we all have a constitutional right to pace around with a rifle outside your ex-girlfriend’s apartment
Humans sometimes lie, women are human, therefore women sometimes lie. You dispute this? Which part?
As a matter of logic you need to preface the premise with “All”, otherwise, though the conclusion might be true, it’s illogical.
Granted. Though I wouldn’t rule out the possibility that there’s some human, somewhere, who doesn’t occasionally lie, outside of formal logic that doesn’t actually imply that it would be reasonable to conclude that half the human race were relentlessly honest.
Formal logic buys the guarantee of always being right, at the cost of failing to actually tell you anything useful under most real world situations.
Judge Ho’s opinion sets a nice backdrop for the red flags laws that were passed in many jurisdictions as another “solution” for gun violence, but which have proven to be just more lip service.
Whatever else may be true here, this fellow sounds like a real piece of work. Dilan is extremely correct about the optics involved here:
“Between December 2020 and January 2021, Rahimi was involved in fiveshootingsinandaroundArlington,Texas.1 OnDecember1,afterselling narcotics to an individual, he fired multiple shots into that individual’s residence. The following day, Rahimi was involved in a car accident. He exited his vehicle, shot at the other driver, and fled the scene. He returned to the scene in a different vehicle and shot at the other driver’s car. On December 22, Rahimi shot at a constable’s vehicle. On January 7, Rahimi fired multiple shots in the air after his friend’s credit card was declined at a Whataburger restaurant.“
Again, if Rahimi is that dangerous, he should be detained until trial.
It would help these discussions if you understood the posture of the case. The events above post-date the entry of the protective order. Without checking, I would assume he was detained pre-trial in relation to the conduct described, even in Texas.
I understand the posture. My point is that we don’t punish people for what we think they’re going to do.
It isn’t punishment to take away a wife beater’s guns. It is a safety measure.
If he’s convicted at trial, you’re right. Otherwise, it is. The same way it would be punishment, to stop the spread of HIV, to declare that you can’t keep letting your “husband” peg you bareback.
That’s one of those statements that underscores that “legal fictions” are actually legal lies.
To me, the bad optics are that he isn’t in jail, rendering discussions of protective orders moot.
Protective order pre-dated the gunplay.
I got that. But if he was in jail for the rest of his spree it would be moot.
Well… no not really. He’s been in jail the whole time… he’s just challenging the part of the civil order that says he’s can’t have a gun. From jail.
My guess the reason this case got taken was the temporal interplay between the civil order and the criminal charges (for which he was detained but not convicted)
Wouldn’t the logic from Judge Ho here apply to civil protective orders in general?
On state court civil protective orders that restrict gun possession, I think Judge Ho’s logic would indeed apply. Alaska enables state judges to issue long-term protective orders that rule out gun possession for people who use a gun or who possess one as they are committing the underlying crime. That wouldn’t be OK under Judge Ho’s policy arguments. He goes out of his way to distract attention from the kinds of state DV orders which really do lead to a federal criminal ban.
Thanks for that response, I assumed as much. I was thinking about other rights. For example the prohibition on “annoying” exGF in the protective order would seem to run afoul of the first amendment. Would such a restriction pass muster under the history and tradition regime? The logic laid out is specifically not limited to the 2nd amendment as I read the concurrence.
To me what is missing in this analysis is what Rahimi was doing before the protective order was issued. Not much question all the gun play after the order was issued justifies fucking him in the ass with no lube till he can’t walk.
But I would bet dollars to donuts that he was no choir boy before he did whatever he did to his ex justifying a protective order. The question the court is trying to answer is does the simple issuing of a protective order justify taking away 2A rights. My answer would be it depends; and what it depends on is not just how severe and on going the domestic abuse (and not just physical domestic abuse but mental domestic abuse as well) was but also on other factors that went on before hand. Putting aside how legit drug laws are there are drug laws and again I would bet dollars to donuts when Rahimi shot up his drug buyers place it was not the first time he sold drugs. But I am still not convinced he was never involved in gun play and/or drug sales until after the protective order was issued. In fact the only upside to Raimi’s gun play seems to be he is a bad shot since he did not hit anybody.
What is the old saying hard cases make bad law or something like that.
In the opinion that was superseded by this one, here is how they describe the underlying facts:
“At sentencing, the presentence investigation report (“PSR”) detailed Rahimi’s lengthy criminal history. Relevant to this appeal are the state charges that were pending against him for offenses that occurred from December 2019 to November 2020. Three pending state charges resulted from Rahimi’s use of a firearm in the physical assault of his girlfriend in December 2019, and another state charge arose from an aggravated assault with a deadly weapon of a different woman in November 2020“
So how many babes is this guy porking and then abusing? From what I understand that is usually not a one and done thing. Not to mention other questionable actions related to firearms. I have no doubt Rahimi should not be allowed to own firearms for multiple reasons but I do question if a single protective order justifies prohibiting him from possessing firearms.
I have no doubt that Rahimi should be allowed to roam free at all.
And yet he was walking around free, and we’re to pretend that a court order that he forfeit his guns would render him safe to do so.
I mean, take away his guns and there’s now way a guy who buys drugs will be able to buy an illegal gun, or run someone over, or knife them, or just beat them to death. Right?
“He was walking around free”
No I don’t think so. I’m pretty sure he was challenging this from jail.
The December 2019 and November 2020 assaults happened from jail?
‘buy an illegal gun, or run someone over, or knife them, or just beat them to death’
What’s the point in making any of these things illegal if he can potentially do any of them?
The point is, what’s the point of taking somebody you can prove is violently attacking people, legally depriving them of one, and only one, means to do so, and settling for that?
It’s not gun owners who make a fetish of guns, it’s gun controllers. Gun owners would never stupidly think that just taking a bad person’s guns away renders them safe.
Nige you are missing the bigger picture. Rahimi most likely deserves to have plenty of restrictions including not being able to possess firearms. But the way the courts arrived at prohibiting him from possessing firearms (protective order) is just silly. He had a history of drug distribution and violence (including domestic violence against a previous partner). All these things are good reasons to not allow him to possess guns; but the Judge Hos felt the most recent protective order was not.
It seems the soft on crime approach to Rahimi’s previous bad acts is the real problem.
Precisely! In most of these cases, the dude is only walking around free because his crimes aren’t being taken properly seriously, except as an excuse to deprive them of one particular civil right.
You sometimes wonder if they treasure high rates of crime as providing that excuse, and are avoiding doing anything about it that might take the excuse away.
I would bet dollars to donuts
An old saw that went out of date after donuts went up to more than a buck apiece. Now you are just demanding odds.
Old saws are the best saws.
It always comes back to penetration with you huckleberries, doesn’t it?
“…to declare that you can’t keep letting your “husband” peg you bareback.“
“ So how many babes is this guy porking and then abusing?”
Reflect on why that’s where your mind goes first. Seriously. It’s like a pathology with y’all.
Good point. It’s not like there’s any obsession with phallic symbolism on the other side, is there?
Wow, congratulations to Judge Ho for turning the tables on those of us who know that he, his fellow judges misreading the second amendment, and the law school professors and other intellectuals all have the blood of thousands of Americans on their hands resulting from second amendment fetishization. Including the blood, apparently, of the victims of domestic abuse and the random actions of deranged individuals, since the potential perpetrators must not be denied their right to a deadly weapon until they actually execute their deadly deeds upon their victims. I will leave to a law review article the tedious task of distinguishing between the havoc wreaked by the 4th, 5th, and 6th amendments and that wreaked by the second (or at least the fallacious misreading of it that un-originalistically omits the “militia” part of it). I’ll just say that the relative damage is like comparing a flea bite to cholera.
When you’re right, you’re right. It’s a hell of a way to run a railroad.
Bruen and Heller will be the first to go under Alito’s new Egregiously Wrong Doctrine once we get these conservative activist justices off the court.
The net result of all this is profoundly perverse, because it means that § 922(g)(8) effectively disarms victims of domestic violence.
Note that tacit in that is a contested conclusion of fact, being decided by the judge without evidence, on behalf of pro-gun ideology. There would be nothing perverse in removing guns, if getting guns out of the picture altogether turned out as a matter of fact to be the generally wisest choice to assure safety for a domestic violence victim.
The point tacitly in contention is in what situations does having a gun around make a person safer, vs. in what situations does having a gun around put that person in increased peril. No one knows the answer to that question, even as a general tendency, let alone in light of various specifics relating to domestic violence in all of its manifestations.
It would be respectable intellectually to insist that the 2A grants to individuals the right to make fraught decisions according to their own estimates, especially when otherwise helpful information is missing. That would confine the scope of the reasoning to the case in front of the judge.
It is not intellectually respectable to insist on a fact as a general principle, while the question of factuality remains conjectural. To do it that way puts the judge in the position of weighing in on gun policy, and deciding the policy question, in the absence of the factual predicate good policy requires.
Pro-gun advocates are entitled to rights, they are not entitled to have self-serving policy premises reified legally.