At Real Clear Politics: Domestic Violence Protection Orders Don’t Pass Constitutional Muster

Nov 7, 2023 | op-ed

Dr. John Lott has a new op-ed at Real Clear Politics on the Supreme Court’s case that will be heard in oral arguments today.

How certain should we be that someone did something wrong before they lose their right to own a gun? Tuesday, the Supreme Court will hear a case that could have a major impact on how courts evaluate the constitutionality of gun control laws. The Biden administration asked for a review of the 5th Circuit Court’s decision not to deprive Zackey Rahimi of his right to own guns. 

Rahimi is not someone you want to be your neighbor. He is a drug dealer with a long, violent criminal record. But instead of prosecuting Rahimi for his violent crimes or imposing sufficient bail to keep him in jail, prosecutors merely used a 2020 assault on his girlfriend to obtain a domestic violence protection order. 

The Supreme Court is asking: What is the standard of evidence needed to strip someone of their constitutional right to keep and bear arms? People lose their right to a gun when convicted of felonies and some violent misdemeanors. But the Domestic Violence Protection Orders are handled as civil cases. In civil cases, you have a much lower standard of proof, no right to a lawyer, and not even necessarily a hearing. Indeed, Rahimi lost his rights without a hearing or a lawyer to represent him.

In last year’s landmark Bruen case, the Supreme Court set a template for evaluating whether a gun control law is constitutional. The opinion, written by Justice Clarence Thomas, argued that one must first look at the wording of the Second Amendment. If that weren’t conclusive, one would consider the legislative debate surrounding the passage of the amendment. Finally, one could examine whether similar laws were in effect in either 1791, when the Second Amendment was adopted, or in 1868, when the 14th Amendment applied The Bill of Rights to the states.

The Federal Domestic Violence Protection Order law didn’t pass until 1994, long after both years.

The reasoning behind Domestic Violence Protection Orders is straightforward. If people subject to a civil restraining order are dangerous, then prohibiting them from possessing firearms could save lives. On the other hand, if people under restraining orders are truly dangerous, they are unlikely to obey such a law. Someone willing to commit a serious assault or murder is already facing a significant prison sentence, a life sentence, or the death penalty. The additional penalties for illegally obtaining a gun or violating a protective order are unlikely to provide deterrence. Indeed, despite his protection order, Rahimi still got a gun and used it in a crime. 

The problem is that with a low threshold for taking away a person’s guns, you are more likely to make mistakes and take away guns from innocent people. There is a big difference between “beyond a reasonable doubt” – where the odds are 98% to 2% – that someone is dangerous, and the “preponderance of the evidence” – possibly 50.1% to 49.9%. That will happen more often when we allow judges to make decisions without a hearing or without the accused having legal representation. A partner who is a threat might even get a judge to disarm their potential victim.

Indeed, peer-reviewed academic research shows Domestic Violence Protection Orders didn’t change the number of domestic gun murders or domestic murders generally.

But the Biden administration asked the court to hear Rahimi’s case because they hope the court focuses on the case’s optics – a bad guy who shouldn’t have a weapon and the issue of domestic violence. But instead of calling for Rahimi’s prosecution for his many violent crimes, Biden wants the court to deviate from its strict reading of the Constitution, and free up judges to decide on a case-by-case basis whether they like the laws that legislatures have passed.

The court has faced these tough questions before. Everyone who has watched much TV knows about police having to recite the Miranda warning to suspected criminals. The police say: “You have the right to remain silent. Anything you say can be used against you in court …” 

Miranda was also a dangerous criminal and was convicted of kidnapping and rape. But the Supreme Court set him and other violent criminals free, and gave suspects rights that made it harder to get convictions.

Disarming convicted, violent criminals is one thing. But the lower standard of proof in civil matters means that mistakes are more likely to happen, with innocent people facing harm. Domestic Violence Protection Orders fail to withstand constitutional analysis and also fail to make people safer.

John R. Lott, Jr., “Domestic Violence Protection Orders Don’t Pass Constitutional Muster,” Real Clear Politics, November 7, 2023.

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