Guns and Restraining Orders  by Tom Reynolds

We all want to stop violent people from injuring or killing others.  But this often involves legal action against a person before they have committed a crime and may infringe on constitutionally protected rights (most often the 2nd Amendment).  We recognize that these are serious issues and we want to solve them in a way that is constitutional.  But instead of focusing on solving the issue, the Left uses these situations as an opportunity to take away more of our rights. Red Flag Laws are usually a good example of leftist overreach but another recent court opinion focused on ‘Restraining Orders’.

Three decades ago, Congress enacted a law prohibiting gun possession by people who are subject to Domestic Violence Restraining Orders. On its surface, that seems reasonable.  But as the legal battle over that rule shows, the reality is that judges often issue such orders without any credible evidence that the respondent poses a danger.

Following that reasoning, the 5th US Circuit Court of Appeals said that those under Domestic Violence Restraining Orders do not lose their Second Amendment right to bear arms.  It said the federal law barring those alleged abusers from possessing guns is unconstitutional.  (The Biden Administration is appealing the decision to the Supreme Court.)

Most people’s first reaction is that we want to keep weapons out of dangerous people’s hands and leftist web sites immediately saw a propaganda opportunity when they posted headlines such as, “Domestic Abusers Can Now Own Guns Too.” 

Getting past our initial emotional rection - and as with most things the Left propagandizes - there is much more to it than an inflammatory headline.  Although the 5th Circuit Court’s opinion was based on the Supreme Court’s ‘Bruen’ decision that gun control laws must be “consistent with the nation’s historical tradition of firearm regulation”, the 5th Circuit also brought up other important issues.

Judge James Ho notes in a concurring opinion, "Family court judges may face enormous pressure to grant civil protective orders—and no incentive to deny them."

What is he referring to?

Domestic Violence Restraining Orders have a history of being easily abused.  Who says so?  Elaine Epstein, former president of the Massachusetts Women's Bar Association, who put it this way: “It is not surprising that restraining orders are granted to virtually all who apply,"  

Where does this pressure to grant restraining Orders come from?

Even when there is a minimal possibility that someone might assault a spouse or other "intimate partner," when combined with the negative publicity and career consequences that assault might cause the judge, this tends to overshadow the risk of infringing on a constitutionally protected right.  The 2nd Amendment reverts to a 2nd class right.

Judge Ho further says that Restraining Orders are "a tempting target for abuse…they can help parties in divorce cases obtain favorable rulings on ‘critical issues."

Family and matrimonial attorney Liz Mandarano agreed: “Because they are incredibly easy to obtain, orders of protection are misused." Mandarano cited studies suggesting that unfounded abuse allegations are common, accounting for most protective orders in some jurisdictions.

Harvard law professor Jeannie Suk notes that "many divorce lawyers routinely recommend pursuit of civil protection orders for clients in divorce proceedings…as a tactical leverage device."

Judge Cory Wilson notes in the 5th Circuit decision, is that people can lose their Second Amendment rights even if they have no history of violence, based on nothing more than “a domestic restraining order that contains boilerplate language.”

That outcome, Judge Ho says, "may be especially perverse considering the common practice of 'mutual' protective orders": A judge "may see no downside in forbidding both parties from harming one another," including the victim of domestic abuse as well as the perpetrator. In such cases, Ho writes, the law "effectively disarms victims of domestic violence," potentially putting them "in greater danger than before."

It is imperative that this issue be addressed in order to protect people and protect their constitutional rights.  But that solution would interfere with the Left’s intention of doing away with the 2nd Amendment, so ‘bipartisanship’ is unlikely. This uncaringly puts people in harm’s way in order to achieve one of the Left’s goals.