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Unless I'm misremembering, the actual ruling was regarding domestic violence restraining orders. (PDF WARNING). Which is to say, people who have not been tried for or convicted of the crime of domestic abuse/battery, but rather where there's someone who can convince a judge that they are in danger of violence from this person, and thus an injunction to keep that person away is a necessary remedy.
So a person against whom such an injunction is granted is NOT a convicted criminal just because the injunction was granted.
I think this is an important distinction, as it also brings up the need for due process protections. The standards for proving a domestic violence injunction are much lower than for obtaining a criminal conviction, and they're usually considered a civil matter (i.e. it is the person acting on their own behalf, not the state acting on behalf of society, no prosecutor is even involved). An individual can request that a given person be forced to stay away from them if they're a threat, but it makes much less sense for a person to demand that that someone else must sacrifice additional rights in their entirety.
So a law which removes ALL of a person's firearm rights on the sayso of a single person is a pretty serious restriction to impose on somebody who has not been arrested, much less convicted of a crime.
In terms of protecting people's rights from infringement without some proven criminal conduct I think it does help that original purpose, yes.
Indeed, an injunction that takes away a person's gun rights doesn't provide much extra protection to the alleged victim. If that person wants to ignore that restriction and hurt someone, doubtful that piece of paper will stop them. So I don't think victims' safety is hampered much by the firearm ban.
If the state can convict the person of domestic violence crimes, then we're in the world of violent criminals, and all kinds of punishments, including prison and removal of gun rights are on the table.
I accept all of that as good critiques of the law, and perhaps sufficient reason to overturn it if it can't be reformed to meet those objections.
But I don't think it addresses my point, which was that these laws don't affect enough people to meaningfully interfere with the 'state should fear its people' value of 2A.
The whole thing about "fundamental rights" as an ideal is they are supposed to protect every person in an individual level, and not make it so the state can get away with passing unconstitutional laws so long as most of the population will never run afoul of them.
If you were SCOTUS you surely could promulgate a standard setting some threshold. "Unless this law interferes with 5% of the populations exercise of their rights, it is presumptively non-infringing."
I, for one am concerned about the gamesmanship by the states this might encourage (worse than they do already!) And other possible second-order effects.
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That's a rather Borkian view. The 2nd Amendment says "..shall not be infringed", not "..shall not be removed completely". While punishing a Klan leader for saying "it's possible that there might have to be some revengeance taken" probably doesn't materially restrict the range of political discourse in the United States, it's still an abridgement of freedom of speech; by the same token some gun law which prevents some people from having arms but doesn't wholesale remove the right is still an infringement of the right to keep and bear arms.
Sure, I was replying to a specific comment making that specific argument.
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While yes Rahimi is about a conviction under 922(g)(8) for possession while under a DVRO, it's complicated by Rahimi being an exceptionally unsympathetic individual which makes it politically very easy to paint his defense as a bad thing. The firearms that he is being charged with possessing in violation of the order were discovered while his premises were searched under warrant for other crimes.
The DVRO was issued Feb 2020 for context.
Why is this an argument for disarming him through a DRVO, rather than an argument for jailing him pending inescapable felony conviction and a decade or more in prison?
You have your timeline confused. He was already under the DVRO before those other crimes occurred. While doing the needful in investigating those other crimes they found evidence for an easy conviction of possession of a firearm while under a court restraining order. His defense attorney is using Bruen to dispute that charge specifically. The case before SCOTUS doesn't actually touch those other charges at all.
To clarify the actual argument is whether or not the federal crime of possessing/acquiring a firearm (that interacts with interstate commerce but that's basically a fig leaf) while under a court issued restraining order is constitutional. This gets abbreviated to whether or not a restraining order with its lower standards of proof and potential one-sided issuance is sufficient and constitutional to deny someone their constitutionally guaranteed right to keep and bear arms. Shorter: restraining orders disarming gun owners constitutional yea/nay?
And his record was clean before the DVRO?
I appreciate the correction, and I guess the argument is that under the proposed system, they could have disarmed him when the DVRO went through? But if his record was not clean prior, that just pushes the question back: the sort of person who fires warning shots over a credit card declined at Whataburger is the sort of person who should not be on the streets at all, and this is probably knowable before he shoots up a Whataburger. Disarming him (How? By who? What if he arms himself again?) but leaving him free is an entirely insufficient response.
As far the record exists in the case yes. Notionally he should have been disarmed when the DVRO was issued. The practical application of that would require the court/police to be aware of existing firearms (the person asking for the order might be aware, the person accused is not exactly incentivized to bring up their ownership) and then proactively disarm (expensive, dangerous) rather than simply ordering it be done. Keeping in mind that the DVRO was under state court and the possession is a federal offence. In some jurisdictions compliance can also be done by storing firearms at a club/FFL rather than having to sell off/surrender them to the police so even verifying compliance with the order has friction.
As for acquiring, the only thing stopping a 4473 from going through after the order is in effect is if the court that issued the order is tied into the state background check system or the national one to catch someone lying on question 21.i or the person under the restraining order answering that question truthfully. (All of question 21 on that form is basically an IQ check or cya documentation used to prosecute if you lie on it and then publicly admit to doing things that conflict with your answers on that form as in the recent case of a rather famous failson.) And of course it's entirely possible to acquire a firearm without a 4473 and in those circumstances the ability to verify that someone is not restricted is rather limited.
To get around that second problem some states have made it illegal to transfer a firearm without a 4473. And the way they enforce that has been... catching someone after the fact with incontrovertible proof they violated that law. That proof being rather difficult because most of those universal background check states still have various exemptions for gifts/inheritance/loans to avoid awkward things like having to stop at an FFL to let your friend "possess" your firearm during a day at the range. Yesterday's reasonable exception is today's loophole.
Excellent overview. DVROs can also be imposed as part of a standard practice whenever someone is charged with a DV crime. Defendants are then placed in an awkward position if they're asked whether they're following the court's order. There was court in Washington state that issued a ridiculously long and thorough decision on this issue, ruling that this type of practice was a clear violation of the defendant's right not to testify against themselves.
I'm in a state with universal background checks, and virtually all the guns that get recovered from crime scenes had been reported stolen eons ago. If the cops find a non-stolen gun, they nominally have the ability to retrace its journey by using the serial number to look up the FFL paperwork. In practice, they tend to find absurdly long gaps in the record. The guy with the gun can just say his uncle gave him the gun years ago, and it's near impossible for a prosecutor to refute that. The "family member" transfer exceptions are a huge loophole since a cousin can gift a gun to their cousin who gives it to their cousin etc. and even if that happened 100 times it would still be perfectly legal. Also, most states don't have universal background checks! So someone potentially could just say "I acquired this through a private sale
when I was driving through Ohio" [Edit: woops, I was wrong about this h/t @The_Nybbler] and good luck refuting that.By Federal law, you can't legally buy a gun privately in a state you don't reside in. (This law should be overturned by Bruen but of course it will not be.)
You're correct, that was an error on my part. I'm now very curious as to how difficult to prove those cases. And since it's a federal prohibition and universal background checks are a state law, that would add another hurdle for enforcement.
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Haha yeah that is about the platonic ideal of the "violent criminal" type who really should not be trusted with firearms and is without a doubt a danger to society in general and the subject of the DVRO in particular.
But there's a quote from Supreme Court Justice Felix Frankfurter that I often recall when reading these decisions:
"It is a fair summary of constitutional history that the landmarks of our liberties have often been forged in cases involving not very nice people."
And that's fundamentally because the common law is forged out of conflict. Someone ran afoul of and challenged a given law's restrictions. And nice, peaceable citizens are far less likely to find themselves in conflicts with the state than... that guy.
So while strategically you want to mount an appeal using the most sympathetic parties possible, in practice the proof that "the law applies to everyone" is to bring up those unappealing miscreants and, holding your nose all the way, defend against the violations of their rights the same as anyone else's.
That the Supreme Court doesn't decide cases based on their empathy for the parties or their victims is a good sign that they're doing their best to be 'impartial.'
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