Wednesday, March 29, 2023

Fifth Circuit: Ban on Second Amendment Protected Rights by Civil Restraining Order is Unconstitutional.

In the Fifth Circuit, the entire Court has ruled, en banc, that rights protected by the Second Amendment may not be infringed by mere civil restraining orders. The unconstitutional infringement was placed into law by the infamous Lautenberg amendment in 1996. Hundreds of thousands of lives have been turned upside down and ruined by this infamous and unjust law.

In the opinion published by the Fifth Circuit Court of Appeals, Circuit Judge James C. Ho writes a particularly well argued and presented concurrence. The concurrence is worth reading. It is quoted below, without the footnotes:

James C. Ho, Circuit Judge, concurring:The right to keep and bear arms has long been recognized as a fundamental civil right. See, e.g., Johnson v. Eisentrager, 339 U.S. 763, 784 (1950) (describing the First, Second, Fourth, Fifth, and Sixth Amendments as the “civil-rights Amendments”); Konigsberg v. State Bar of Cal., 366 U.S. 36, 49–50 n.10 (1961). Blackstone saw it as essential to “‘the natural right’”of Englishmen to “‘self-preservation and defence. ”District of Columbia v. Heller, 554 U.S. 570, 593–94 (2008)(quoting 1 William Blackstone, Commentaries on the Laws of England139–40 (1765)). 

But the Second Amendment has too often been denigrated as “a second-class right.”McDonald v. City of Chicago, 561 U.S. 742, 780 (2010). In response, the Supreme Court has called on judges to be more faithful guardians of the text and original meaning of the Second Amendment. See N.Y. State Rifle & Pistol Association, Inc. v. Bruen, 142 S. Ct. 2111 (2022). Our court today dutifully follows the framework recently set forth in N.Y. State Rifle. It recognizes the absence of relevant historical analogues required to support the Government’s position in this case. I am pleased to concur.

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.

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.

Judge Ho says what many Constitutionalists have been saying for decades. If a person is too dangerous to have arms, they are too dangerous to be on the streets.  At present, the Biden administration has chosen not to appeal this Fifth Circuit decision to the Supreme Court of the United States.


The decision to not appeal this case to the Supreme Court may be an attempt to delay a Supreme Court ruling on the constitutionality of banning the exercise of rights protected by the Second Amendment with a mere civil restraining order. Many times more people have their rights infringed with a civil restraining order than are ever convicted of domestic violence. People have had their lives destroyed by this evil and unconstitutional law. If you are willing to have your blood pressure raised with pure injustice, read of the case of Tim Emerson, M.D. Emerson was the first federal case since Miller to affirm the Second Amendment as an individual right. However, because of the Lautenberg amendment, Emerson was unjustly convicted, impoverished, jailed, put on a sex offender list, and denied the most basic rights. This was a decade before the Heller decision, when the courts were still dominated by Progressive judges.

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

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1 comment:

Anonymous said...

Thank you Judge Ho, for taking your duty seriously and upholding the Constitution.