Restraining Order Ban on Second Amendment: Decision Appealled to Fifth Circuit

On November 15, 2022, the United States Attorney in the Western District of Texas, Ashley C. Hoff, filed a Notice of Appeal to the United States District Court fro the Western District of Texas, Pecos Division in the case of USA v. Perez-Gallan. 

Previously, on November 10, 2022, Judge David Counts had issued a Memorandum Opinion dismissing the indictment as to Litsson Antonio Perez-Gallan as invalid because it was unconstitutional under the United States Supreme Court decision in NYR&PA v. Bruen decision, which restored Second Amendment rights and restored the Second Amendment as a full fledged member of the Bill of Rights, not a second class right. 

Judge Counts found the part of the controversial  Lautenberg Amendment, passed in 1996, which prohibits a person who is under a restraining order for domestic violence from possessing a firearm or ammunition, 18 U.S.C. §922(g)(8), to be unconstitutional.

The wording of 18 U.S.C. §922(g)(8) is this:

(g) It shall be unlawful for any person-

(8) who is subject to a court order that-

(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate; 

(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and 

(C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury;

Not only did Judge Counts find 18 U.S.C. §922(g)(8) to be unconstitutional, but he ordered Litsson Antonio Perez-Gallan to be released from confinement on November 15, 2022.  To the credit of the United States Attorney, they did not oppose the motion to release Perez-Gallan, because there were no longer any indictments against him.

The United States Attorney then appealed the case to the Fifth Circuit Court of Appeals. From the Notice of Appeal: 

 

NOTICE OF APPEAL

       Pursuant to 18 U.S.C. § 3731, the United States of America hereby gives notice that

it appeals the district court’s November 10, 2022, Order granting the Defendant’s motion

to dismiss the indictment (Doc. No. 55) to the United States Court of Appeals for the Fifth

Circuit.

                                                 Respectfully submitted,

                                                 ASHLEY C. HOFF
                                                 UNITED STATES ATTORNEY

 

Opinion:

The Biden Administration has been put in a bit of a quandary by the Constitution and Judge Counts. 

The guidance on how to restore the protections of the right to keep and bear arms in the Second Amendment to the U.S. Constitution, written by Judge Clarence Thomas, in the Bruen decision, is clear.

If there is no historical record of widespread and sustained, culturally accepted, restrictions on the right to keep and bear arms, primarily from the time of the ratification of the Second Amendment in 1791, and to a lesser extent, when the Fourteenth Amendment was ratified in 1868, infringements on the right to keep and bear arms are unconstitutional.

A ban on the right to possess firearms and ammunition is a direct infringement of the right to keep and bear arms. There is no historical record of destroying the exercise of this right because of a mere restraining order, before any conviction.

If the Biden Administration chose not to appeal this decision to the Fifth Circuit, cases such as those of Litsson Antonio Perez-Gallan would be seen as losers. 

There has been considerable pressure in the dominant leftist media to label the decision to restore fundamental constitutional rights as somehow being anti-woman. The dominant media has framed the narrative as an issue of safety of domestic abuse victims.  From UPI:

The effort in Texas to expand protections for domestic abuse victims from gun violence has long faced obstacles. A small number of communities in the state have established programs to transfer firearms from people under a protective order to law enforcement, but these resource-intensive programs depend on federal and state laws that ban these individuals from possessing guns.

Thus, the Biden administration is under pressure from the dominant leftist media to "do something" about the decision.

Appealing the decision makes it likely the Fifth Circuit will uphold the decision of the lower court. Then the Biden Administration would be pressured to appeal it to the Supreme Court, where they would likely lose again.

The Fifth Circuit, in 2020, upheld the § 922(g)(8) prohibition, but only under the now discredited "two step" process and under discredited "intermediate scrutiny".

The advantage of the appeal for the Biden Administration is it kicks the can down the road. The Biden administration may well be out of office before this case is decided at the Fifth Circuit, and very likely will be out of office if the case goes to the Supreme Court.

This is a very simple case. It is a good test of the will of the Courts to restore Second Amendment rights under the Bruen decision.

©2022 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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