Fifth Circuit: Domestic Accusation not sufficient to Ban Rights Protected by Second Amendment

 

 A three judge panel on the Court of Appeals for the Fifth Circuit has ruled a mere restraining order is insufficient to ban rights protected by the Second Amendment.  The decision follows the long judicial practice in the United States. Fundamental constitutionally protected rights may not be removed without a criminal conviction in a court of law. 

Restraining orders have the merest hint of due process. They are often granted without any representation on the part of the individual accused.  The utility of restraining orders and the removal of rights because of them have long been in doubt. Intimate partner homicides decreased sharply in the decades previous to 1996, when the federal law banning possession of firearms from those who were subject to a restraining order went into effect. Then, they leveled off. 

The United States Supreme Court, in the Heller decision of 2008, affirmed the longstanding view of the Second Amendment as protecting an individual right, a view which had been ignored by Progressive judges in the appelate courts since 1941, where they either misinterpreted the Miller decision of 1939, or deliberately refused to follow it, as in the Cases decision in 1942. 

The Supreme Court refused most Second Amendment cases from 2010 to 2022, allowing some of the appellate courts to concoct a convoluted scheme to render the Second Amendment irrelevant. In the Bruen decision of 2022, the Supreme Court reasserted its findings in Heller (2008), McDonald (2010), and Caetano (2016). The rights protected by the Second Amendment must be protected at the same level as the First Amendment. The rights protected by the Second Amendment rights are not a second class set of rights. 

Bruen gave explicit instructions to the lower courts. Rights protected by the Second Amendment may only be infringed if those infringements were understood as acceptable when the Second Amendment was ratified or, to a lesser extent, when the Fourteenth Amendment guaranteed those rights protection against infringment by the States.  

It was never acceptable to ban the exercise of rights protected by the Second Amendment without criminal conviction under due process of law.

Mere restraining orders are not a criminal conviction under due process of law. From the Fifth Circuit decision (bold added):

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, 142 S. Ct. 2111 (2022), it is not.

Separately, a District judge in the Fifth circuit also found the restraining order law unconstitutional under the Second Amendment. The two cases are not related, but the recent decision by the Fifth Circuit is likely to apply to the Perez-Gallan case heard by Judge Counts.  The two cases may be combined in the future. 

It is unknown if a request to hear the current case, United States v. Rahimi, en banc (by the whole Fifth Circuit), will be made.  

One of the judges in the three judge panel, Judge Ho, wrote a separate opinion, concurring with the decision, but elaborating on it. Judge Ho wrote:

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, 481 U.S. 739, 755 (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. See, e.g., United States v. Ackell, 907 F.3d 67 (1st Cir. 2018)(upholding criminal stalking law); United States v. Gonzalez, 905 F.3d 165 (3rd Cir. 2018)(same); United States v. Osinger, 753 F.3d 939 (9th Cir. 2014)(same); United States v. Petrovic, 701 F.3d 849 (8th Cir. 2012)(same); see also People v. Counterman, 497 P.3d 1039 (Colo. Ct. App. 2021) (same), cert. granted, _ U.S. _ (2023).

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. I concur.

Mere restraining orders have little due process. Fundamental constitutional  rights may not be taken from individuals on mere accusations.

A Zacky Rahimi is currently in custody awaiting trial on  several felony charges, including three Aggravated Assault with a Deadly Weapon, in Tarrant County, Texas.  Tarrant County has a hold to notify the U.S. Marshals Service before he is released. As a prisoner, he does not have legal access to weapons. He is likely to be convicted of at least one of he felony counts.  He is likely the same Zachey Rahimi in the Federal Fifth Circuit case.

 

©2023 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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