Tuesday, February 21, 2023

KY Federal Court strikes down Ban on Second Amendment Rights based on Restraining Order.

A federal district Court in the United States District Court, Eastern District of Kentucky, Central Division,  (at Lexington) has held a ban on the exercise of Second Amendment rights for a mere domestic restraining order  18 U.S.C. § 922(g)(8 is unconstitutional.

On June 15, 2022, A Harrison County Family Court in Kentucky issued a Domestic Violence Order ( a restraining order) against Sherman Kelvin Combs. In Kentucky the DVO procedures do nor require council (an attorney) be appointed for  respondents or that a jury resolve factual issues.

A few days later, it is alleged Combs purchased a .357 revolver from a federally licensed dealer. Combs indicate, on the form 4473, that he was not subject to a DVO (domestic violence restraining order). 

Combs was charged, in federal court, with two counts. First, that he possessed a firearm in violation of  18 U.S.C. § 922(g)(8). Second, that he lied on the Form 4473.  The maximum penalty for each count is up to 10 years in prison and a $250,000 fine.

The actual 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;

The second count is 922(a)(6),

(6) for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter;

Combs and his lawyers argue that count 1  ( a ban on receiving a firearm while under a restraining order) is unconstitutional, and therefore, count 2, lying on the form, is immaterial. 

The federal magistrate, Matthew A. Stinnett, who first heard the case, held the restraining order provision was close enough to the early surety statutes to be constitutional, and count 2 was unaffected. 

The federal  judge for the United States District Court, Eastern District of Kentucky, Central Division,  (at Lexington), held count 1 is unconstitutional, but count 2 is still material, in part because the dealer could not make an informed decision because the dealer was lied to; and the dealer could decide whether to sell Combs a firearm or not, even if Combs was not prohibited from purchasing  and possessing firearms by federal law.

The case will probably be appealed. Both sides have reason to appeal. There is reason to believe law that stems from an unconstitutional law is void, which would work in Combs favor for count 2. It is difficult to believe the Biden Administration will allow a ruling that count 1 is unconstitutional without an appeal.

This is at least the third case where a court has held the ban on the exercise of Second Amendment right for a mere domestic restraining order is unconstitutional. A Texas District court has also held the restraining order ban is unconstitutional, and a three judge panel in the Fifth Circuit Court of Appeals has also held the ban to be unconstitutional. 

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

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