Supreme Court Agrees on Taking Guns from Domestic Abusers

[Nathan]

I guess my concern is this escalation and I believe this may have been the decenting concern.

First 2A rights were taken away for felony, then DA misdemeanor, now DA related restraining order, next….and really what is next? Maybe the Chief of police or a politician can decide under some rules to take your 2A rights. Sounds like “red flag” laws.

I agree with the guy who said go ahead and convict the guy, but don’t set the law up to take rights when you cannot meet that burden of proof!
Can a restraining order be used to take away any other constitutionally protected rights?

 

[zukiphile]

Can a restraining order be used to take away any other constitutionally protected rights?

Yes.

A restraining order can restrict your right to travel, associate or transfer assets.

Part of the problem I see is that in my state many of these orders are set forth on a form. In my county, the common pleas court is considering removing the check box from civil protective orders that prohibits a person from possessing arms and making the form unprintable without that prohibition. The county is considering this because some magistrates are striking that language through where no evidence would support it.

In a divorce filing, my county doesn't even hold a hearing before issuing an order retraining withdrawls from accounts or transfers of assets.

The due process problems with state court shortcuts are bad enough. They are worse when violation earns a federal penalty.

 

[44 AMP]

Maybe the Chief of police or a politician can decide under some rules to take your 2A rights.

No, they can't. Its a technical thing, but the law is technical. They cannot "take" your rights. Only a court can do that, what some police of politicians can do, under existing law is take your guns, DENYING you the ability to exercise the right. In practical terms, its the same result, but in legal terms it is a different matter.

As to guns in a safe and the combination issue, I would think it is covered under the same rules as any situation where a prohibited person and guns are involved. IF its in the restraining order, then, for the duration of the order, you are a prohibited person, and not allowed access to firearms.

There are many households that have guns and have a prohibited person living there. Its legal, and totally fine, as long as the prohibited person cannot access the firearms. Stored in a closet, or under the bed, not legal, locked up and the prohibited person does not have the combination or the key, all good. But if the combo, or the key is stored someplace the prohibited person can get it, then you're in violation of the law.

Something to always bear in mind is that the way the law looks at things, and the way WE look at things are not always 100% the same.

A restraining order (in the eyes of the law) does not remove your rights, any of them. It can't. It doesn't have the legal authority to do so.

What it does is restrict (restrain) your exercise of certain rights, for the duration of the order. Because its not permanent, its not the same as a law.

Popular media articles discussing this rarely point out the difference, and their headlines never seem to, either.

The fact that a judge can issue a restraining order that prohibits the possession of firearms is NOT "a huge blow to 2A rights", though I've seen more than one headline declaring that recently.

if you read the rest of the opinion, that damn near any law in the distant past that restricted anyone's right is just fine to use to support modern day restrictions.

It is fine to claim that, Bruen allows for it, and the courts will rule on the claim and determine if it is valid. Bruen is most noted for the part that says if you don't have a historical precedent in law, the gun control law is not valid. What's seldom focused on is the fact that if a historical law is chosen and presented as the justification for a current law, that claim has to be upheld by a court and that is not a guaranteed thing.

With one fell swoop SCOTUS has both defanged Bruen, and emboldened the Left to enact any laws they want.

I disagree.

 

[Metal god]

With one fell swoop SCOTUS has both defanged Bruen, and emboldened the Left to enact any laws they want.

I do agree . I've been watching youtube videos with many excerpts of the ruling . Roberts absolutely has walked back Bruen . If not walked it back , clearly gave it more ambiguity . This ruling left the door open for lower courts to reinterpret Bruen which will lead courts like the 9th circuit to uphold all gun regulations . Mark my words . The wording ( if a court rules .... ) is going to destroy the 2nd amendment . Remember how both sides LOVE to take a sentence or even just a few words ( like I just did ) of a 100 page ruling and twist it into something the ruling was NEVER supposed to mean . Then apply it across the board as gossypol . This ruling will allow just that . All these AWB , mag ban etc waiting for cert are all about to be GVR'd and this ruling has given the lower courts that slight opening they have been looking for to drive that wedge hard and deep into our 2nd amendment rights .

Yeah yeah I know that line about watching youtube does not give this post a whole lot of credibility but still .....

 

[s3779m]

Yeah yeah I know that line about watching youtube does not give this post a whole lot of credibility but still ..

Gives your post better credibility than a quote from CNN, MSNBC, etc.

 

[sigarms228]

This as part of the majority decision seems to be causing a lot of concern and I think rightfully so, time will tell but Bruen is alive and mostly well with some guidance that some will continue try to abuse such as saying a ban on Bowie knives way back when justifies modern firearm bans. Todd Vandermyde (YT Freedoms Steel) believes that the "were not meant to suggest a law trapped in amber" will be heard in a lot in lower courts to justify their very questionable decisions to restrict the Second Amendment.

However on a positive note the language requiring "due process' could end up deep sixing red flag laws that bypass due process.

https://www.supremecourt.gov/opinions/23pdf/22-915_8o6b.pdf
From pages 6,7,8.

In Heller, our inquiry into the scope of the right began
with “constitutional text and history.” Bruen, 597 U. S., at
22. In Bruen, we directed courts to examine our “historical
tradition of firearm regulation” to help delineate the contours of the right. Id., at 17. We explained that if a challenged regulation fits within that tradition, it is lawful under the Second Amendment. We also clarified that when
the Government regulates arms-bearing conduct, as when
the Government regulates other constitutional rights, it bears the burden to “justify its regulation.” Id., at 24.
Nevertheless, some courts have misunderstood the methodology of our recent Second Amendment cases. These
precedents were not meant to suggest a law trapped in amber. As we explained in Heller, for example, the reach of
the Second Amendment is not limited only to those arms
that were in existence at the founding. 554 U. S., at 582.
Rather, it “extends, prima facie, to all instruments that constitute bearable arms, even those that were not [yet] in existence.” Ibid. By that same logic, the Second Amendment
permits more than just those regulations identical to ones
that could be found in 1791. Holding otherwise would be as
mistaken as applying the protections of the right only to
muskets and sabers.

As we explained in Bruen, the appropriate analysis involves considering whether the challenged regulation is
consistent with the principles that underpin our regulatory
tradition. 597 U. S., at 26–31. A court must ascertain
whether the new law is “relevantly similar” to laws that our
tradition is understood to permit, “apply[ing] faithfully the
balance struck by the founding generation to modern circumstances.” Id., at 29, and n. 7. Discerning and developing the law in this way is “a commonplace task for any lawyer or judge.” Id., at 28.
Why and how the regulation burdens the right are cen-
tral to this inquiry. Id., at 29. For example, if laws at the
founding regulated firearm use to address particular problems, that will be a strong indicator that contemporary laws
imposing similar restrictions for similar reasons fall within
a permissible category of regulations. Even when a law regulates arms-bearing for a permissible reason, though, it
may not be compatible with the right if it does so to an extent beyond what was done at the founding. And when a
challenged regulation does not precisely match its historical precursors, “it still may be analogous enough to pass
constitutional muster.” Id., at 30. The law must comport with the principles underlying the Second Amendment, but
it need not be a “dead ringer” or a “historical twin.”

 

[44 AMP]

until the ratification of the 13th Amendment (1865) we had "valid" laws prohibiting slaves from possessing arms in many places.

Just because it was a valid law once, and is therefore a historical precedent, does not mean it will be ruled a valid law today.

In this case, the claim was made that using a restraining order to restrict the subject's right to arms was unconstitutional.

The Supreme court has rules it is constitutional, when circumstances justify it.

Three thousand talking heads on video screens giving their opinion of what that means doesn't change the law, or the Court's ruling.

 

[Metal god]

To clarify Im not talking about what people said . I’ve not read all 100 pages and the videos and passages they have shown have let me see deeper into the ruling then I have read . That has lead me to my conclusion. In fact many of those talking heads I disagreed with there assessment . Many say, we dodged a bullet or this is a good ruling it bolsters Bruen . Not IMHO !

 

[Aguila Blanca]

To clarify Im not talking about what people said . I’ve not read all 100 pages and the videos and passages they have shown have let me see deeper into the ruling then I have read . That has lead me to my conclusion. In fact many of those talking heads I disagreed with there assessment . Many say, we dodged a bullet or this is a good ruling it bolsters Bruen . Not IMHO !

Did they happen to explain how it bolsters Bruen, or why they think it does? It's difficult to agree or to rebut without knowing the basis for the opinion.

 

[Aguila Blanca]

Even when a law regulates arms-bearing for a permissible reason, though, it may not be compatible with the right if it does so to an extent beyond what was done at the founding. And when a challenged regulation does not precisely match its historical precursors, “it still may be analogous enough to pass constitutional muster.

Heh, heh.

Did most of the colonies require carry permits at the time the Constitution was written?

Heh, heh ... I can see an enterprising lawyer using this as a basis to attack the constitutionality of carry permits in general -- something I believe many of us believe to be an unconstitutional infringement.

 

[zukiphile]

The worst result would have been a unanimous or nearly unanimous opinion upholding the 922g8 conviction on a single loosey-goosey standard that would look like a marginal overruling of Bruen. The best result would be a unanimous opinion written by Thomas that effectively reasons we looked for 922g8 at the time of ratification, and it definitely wasn't there, so the conviction is overturned.

Here, although eight signed onto the majority opinion, Sotomayor and Kagan wrote separately, and Gorsuch, Kavanaugh, Barrett and Jackson wrote their own concurrence. That's literally not unequivocal.

Thomas' dissent has a clarity and power that may outlive him. It avoids maneuvers like deciding when intrastate non-commerce is really interstate commerce and when a penalty is a tax.

The majority wrote at p. 7,

As we explained in Bruen, the appropriate analysis involves considering whether the challenged regulation is
consistent with the principles that underpin our regulatory
tradition. 597 U. S., at 26–31. A court must ascertain
whether the new law is “relevantly similar” to laws that our
tradition is understood to permit, “apply[ing] faithfully the
balance struck by the founding generation to modern circumstances.” Id., at 29, and n. 7. Discerning and developing the law in this way is “a commonplace task for any lawyer or judge.” Id., at 28.
Why and how the regulation burdens the right are central to this inquiry. Id., at 29. For example, if laws at the
founding regulated firearm use to address particular problems, that will be a strong indicator that contemporary laws
imposing similar restrictions for similar reasons fall within a permissible category of regulations.

Emphasis added. The mischief invited would be from having a justice determined to dump the 2d Am. decide that he found a relevant similarity that he finds a way to balance with a modern circumstance.

Thomas explains how 922g8 fails that analysis.

 

[Metal god]

Thanks Zuk that is a perfect example how I feel they walked back Bruen .

As we explained in Bruen, the appropriate analysis involves considering whether the challenged regulation is
consistent with the principles that underpin our regulatory
tradition.

I don't remember that in Bruen . I remember text and tradition and doesn't have to be a dead ringer . I don't remember and consistent with the principles ? I don't even see how the bump stock rule gets overturned if we are going to use the "principles" of the NFA . A bump stock clearly allows the firearm to fire at a rate similar to a machine gun . The Principle of the NFA was to regulate firearms capable of a very high rate of speed . By this new principled standard bump stocks should clearly be banned .

I will add I did read that part of the ruling and believe they were talking about needing historians to help the court understand the traditions of the 2nd amendment . I read that to mean no they did not . When looking for text and tradition the courts and lawyers need only look faithfully at text and tradition and the principles of the regulatory statute . Not sure that changes my above point but I don't think he was speaking to or quoting Bruen there with the principles part . None the less it's now in writing and precedent . Lets see what the anti's do with that little gem .

That all is just one example of How I'm reading this ruling quite different then many others .

 

[sigarms228]

Great discussion. Of course what actually will be the outcome of any future case will be decided by the makeup of Justices of the court at the time. I really wish they would do something definitive soon about AWB/magazine bans especially considering the way the lower courts, especially the 9th, have thumbed their noses (or maybe gave them the middle finger?) at SCOTUS with the cases GVRd via the Bruen decision. Then again if there is not a consensus among the Justices about how that would be ruled on a decision upholding AWB/magazine bans would be brutal though I don't know if the chances of overturning will ever be better than now. Apparently the Illinois AWB cases are still being considered possibly for something.

 

[Metal god]

AB for an example what zuk quoted many are saying is good and affirms Bruen while I take the opposite stance .

 

[zukiphile]

Of course what actually will be the outcome of any future case will be decided by the makeup of Justices of the court at the time.

Timely observation. Thomas is in his latter 70s and Sotomayor is sneaking up on 70. Will the next nominees look more like the former or the latter?

 

[44 AMP]

I don't even see how the bump stock rule gets overturned if we are going to use the "principles" of the NFA . A bump stock clearly allows the firearm to fire at a rate similar to a machine gun . The Principle of the NFA was to regulate firearms capable of a very high rate of speed . By this new principled standard bump stocks should clearly be banned .

Metal God, you are operating under some incorrect assumptions here.

First off, the principles of the NFA are not, and never were about regulating the speed a firearm is capable of being fired at. Nowhere in the NFA is this mentioned, at all.

This "new principled standard" you refer to is NOT the LAW. Never was.

The law defines what a machine gun is. Bump stocks do not meet the definition of machine gun in the law. Period.

The ATF looked at this during the Obama administration and determined they were not machine guns. IT is somewhat ironic that under a "not very gun friendly" administration bump stocks were ruled legal, (because in that instance, they actually, correctly followed the law) and then later, under a supposedly "gun friendly" administration, the ruling was changed, due to public pressure to "do something" about these things since they had been used in a horrific crime.

The ban was overturned, by the Supreme Court for two simple reasons, first, bump stocks do not meet the legal definition of machine guns, and so cannot be covered under the law as machine guns, and second, the ATF exceeded their lawful authority in ruling them as machine guns, when there had been no change to the law, allowing that.

Its NOT about how fast you can shoot a gun, not at all. Nor is it about how fast a gadget helps you pull the trigger. There are guns that can be "bump fired" without any gadgets at all, simply by holding them in just the right way. There are also people who can pull the trigger, really, really fast.

IF the govt wants a law putting a "speed limit" on how fast you can shoot, they should write one, and get it passed into law. Then we can argue about the need for such a thing, and the balance between public safety and the infringement of rights. But that is, and needs to be a separate issue.

Existing law cannot, and should not be "stretched" to cover how fast a gun can be fired, because that is not addressed, at all, in existing law.

That's what the Supreme Court ruling rescinding the bump stock ban was about.

 

[zukiphile]

IF the govt wants a law putting a "speed limit" on how fast you can shoot, they should write one, and get it passed into law. Then we can argue about the need for such a thing, and the balance between public safety and the infringement of rights. But that is, and needs to be a separate issue.

Existing law cannot, and should not be "stretched" to cover how fast a gun can be fired, because that is not addressed, at all, in existing law.

That's what the Supreme Court ruling rescinding the bump stock ban was about.

On the nose.

Let's suppose Congress passes a bumpstock law that prohibits furniture based on a demonstrated rate of fire, let's say split times shorter than .15 seconds. Clearly, this will be after Jerry Miculek has passed.

In assessing the constitutionality of that law, could a justice find it "relevantly similar" to a ban on possession of breachloading arms by indians and faithfully balance that against the danger of hotel occupants with a grudge against country and western music? Is there a common principle in averting catastrophies in both regulations? Everyone one of us on this page might might find that reasoning to lack the kind of good faith and due regard for Bruen we would want from a Sup Ct justice, but the elasticity of the terms involved makes some very poor reasoning seem plausible on its face.

I'd say there is some clean up to be done in subsequent cases to narrow the opportunities for future hyjinx in lower courts, some of whom were already misreading Heller and Bruen without then help of those terms. It's the sort of clean up of Heller performed in Caetano.

 

[Metal god]

I disagree, it was about the speed or there would be no reason for it hence, the principal is the speed in which it fires . This discussion right here is a prime example of what’s going to happen moving forward . He said she said I interpret , you interpret . Like I said, Bruen has been defanged . Are you not following my point . The anti are going to use this wording to pass laws, and the anti-judges are going to uphold them based on this wording . We can all hope But I’m not holding my breath .

 

[zukiphile]

I disagree, it was about the speed or there would be no reason for it hence, the principal is the speed in which it fires .

I would risk eye strain looking for any real principle in the bump-stock ban. The most prominent principle was that after a big news event, people want something to happen.

This discussion right here is a prime example of what’s going to happen moving forward . He said she said I interpret , you interpret . Like I said, Bruen has been defanged .

Bruen required interpretation too.

The anti are going to use this wording to pass laws, and the anti-judges are going to uphold them based on this wording .

Do you have the impression that the "antis" in NY or CA worry much about the wording of Sup Ct decisions when they pass ever more aggressive restrictions? I don't.

Courts were already pulling Bruen's and Heller's language out of shape on their own. That activity isn't attributable to Rahimi if it predates Rahimi.

We can all hope But I’m not holding my breath .

There is more to be done than that. Presidents nominate and senators control confirmation. They matter too.

Advocates and parties matter too. I wouldn't describe Rahimi as my dream client.

 

[Webleymkv]

In briefly reading the opinion, I am struck by a couple of things. First and foremost, Rahimi was, as 44 AMP put it, a bad actor and not really the best test case for this. More importantly, however, it seems to me that Rahimi went about this from entirely the wrong angle as I really don't see this as a 2nd Amendment issue. What I took from the ruling is that there are, in fact, cases in which the Government can take a person's 2A rights (or any other rights) away so long as there is due process. You'd have a hard time convincing many people that someone who engages in the sort of conduct that Rahimi did shouldn't have their 2A rights removed.

Rather, the issue I see here is that many of us feel that restraining orders which would deprive someone of their 2A rights are too easily granted and thus innocent people who happen to be going through a messy divorce or who have a particularly vindictive ex-partner will lose their rights unduly. To my mind, this is really more of a 5th Amendment, and by extension 14th Amendment, issue as I am equally uncomfortable with someone being deprived of any of their rights without due process. SCOTUS seems to have ruled narrowly here as the question before them was not whether or not a restraining order was sufficient due process to deprive someone like Rahimi of his rights, but whether or not 2A rights specifically could be deprived at all. As I said, Rahimi was a bad actor and not really a good test case for anything, but I think his case might have been less weak had he argued on 5th/14th Amendment grounds rather than 2nd Amendment grounds.