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SIG P220 Elite 10mm
U.S.A. –-(AmmoLand.com)-– Federal District Judge David Counts in the Western District of Texas has ruled the controversial federal law banning gun possession by a person who has been served with a restraining order for domestic violence is unconstitutional under the Second Amendment.
The statute in question is 18 U.S.C. § 922(g)(8). This statute makes it a crime to possess a firearm if the person is subject to a court issued restraining order about domestic violence. The maximum term of imprisonment for violation of the statue is up to 10 years in prison. The actual wording of 18 U.S.C. §922(g)(8) is this:
(g) It shall be unlawful for any person-
(8) who is subject to a court order that-
(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
(C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury;
The person subject to a restraining order alone has not been convicted of any crime.
Restraining orders do not have the protections afforded suspects in an actual trial. Restraining orders have historically been obtained from judges with little effort.
A restraining order does not show the person restrained is guilty of domestic violence.
A restraining order shows a judge was willing to accommodate a person who claimed they feared domestic violence by restraining the accused person from harassing, threatening, or stalking the person or persons.
Judge Counts, in his opinion, starts with a description of the state of Second Amendment law today:
Before Bruen, the Second Amendment looked like an abandoned cabin in the woods. A knot of vines, weeds, and roots, left unkempt for decades, crawling up the cabin’s sides as if pulling it under the earth. Firearm regulations are that overgrowth. Starting with the Federal Firearms Act in 1938, laws were passed with little—if any—consideration given to their constitutionality. That is, until the Supreme Court intervened in Bruen.
Several appellate courts have upheld the restraining order ban before the Supreme Court decision in Bruen. Those courts used the discredited “collective rights” approach to the Second Amendment.
Judge Counts suggests the entire ban on the possession of firearms by people convicted of domestic violence may be unconstitutional. However, he stops short of that conclusion, ruling only on the precise case before him:
Is banning the possession of firearms because of a restraining order showing fear of domestic violence constitutionally allowed under the Second Amendment?
Judge Counts finds the obvious:
The State has not shown any historical precedent for removing the right to keep and bear arms because of a restraining order for domestic violence.
Judge Counts concludes with this:
That said, this Court embraces Bruen’s charge. Thus, after sifting through the history above, this Court finds that the Government did not prove that §922(g)(8) aligns with this Nation’s historical tradition of firearm regulation and declines the Government’s invitation to insert its own public policy concerns rather than following Bruen. As a result, the Court holds that § 922(g)(8) is unconstitutional under Bruen’s framework.
Before and after the passage of the controversial Lautenberg Amendment in 1996, many commentators noted several constitutional problems with the law.
- It was the first time a fundamental constitutional right could be removed for a misdemeanor;
- It was the first time a fundamental constitutional right could be removed for a restraining order;
- The amendment punished people for past behavior, thus, it was an ex-post-facto law.
When courts were presented with these arguments, the counterarguments were:
- The Second Amendment is not an individual right;
- People are not being punished for past acts, but for acts in the present; if they possess firearms in the present, they are violating the law (this presumes removing a constitutional right is not punishment)
Judge Counts’ opinion sweeps away those excuses. As Bruen shows the Second Amendment as a fundamental right on par with the First Amendment, those arguments no longer apply.
The Supreme Court has held a person whose constitutional rights are violated, even for a moment, suffers irreparable harm.
The current argument in support of historical analogs for removing the right to keep and bear arms from those convicted of domestic violence is: an act of violence is similar to other acts of violence which are used to remove the right to keep and bear arms for felonies.
Opinion:
This correspondent has seen the Lautenberg Amendment, especially the restraining order section, used as a cudgel by attorneys in many cases.
Often, its use has little to do with actual domestic violence, and it is used to punish those accused with little or no evidence.
It is used in divorce cases, custody cases, and contrived “domestic violence” cases. The purpose is to dishearten the accused and to make it more difficult to muster the resources for an effective defense. Many attorneys in divorce cases insist that a request for a restraining order be filed in order to take the case. Removal of fundamental constitutional rights for a mere restraining order is an outrage to the Constitution and the rule of law.
Domestic homicides were on a steep downward trend before the Lautenberg Amendment was passed. After it was passed, the number of domestic homicides leveled off. (FBI -UCR)
About Dean Weingarten:
Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.
Learning your way around a modern American gun shop for the first time can seem a little bit like a college physics class, only with more facial hair and testosterone. This is particularly true of those who might not have grown up in this world, with the terminology alone bring seemingly overwhelming. Sometimes certain things that should be simple are not. As a case in point, let us consider the humble handgun.
A particularly insightful five-year-old once entertained me in my medical clinic extolling the many manifest virtues of frogs. He patiently explained that all toads were frogs but not all frogs were toads. So it is with handguns.
Revolver vs. Pistol
Any small-statured firearm designed to be fired with the arms outstretched is termed a handgun. In general, a handgun can be a pistol or a revolver. The origins of the term pistol hearken back to 16th century France. The French “pistolet” at that time meant a small gun or knife.
In modern parlance, the word “pistol” is typically used to describe a semi-automatic autoloading handgun. Semi-automatic means that the gun fires one shot with each pull of the trigger. Autoloading means that the gun’s mechanism ejects the spent case and loads a fresh cartridge using the gun’s intrinsic recoil energy.
By contrast, the word “revolver” is shorthand for revolving pistol. This particular design dates back to before the American Civil War. While the first revolving gun actions arose some 500 years ago, the mechanism was not made truly useful until Sam Colt designed his eponymous Colt revolver in 1836.
So, in terms of name alone, the revolver vs pistol debate should simply note that the revolver is a subset of the pistol genre.
The Semi-Automatic Pistol
The world’s first autoloading pistol was the obscure Salvator-Dormus semi-automatic handgun patented in July of 1891. There have been lots of different kinds since then, but today’s pistols follow certain common conventions. The typical modern autoloading pistol feeds from a spring-loaded box of cartridges called a magazine that is retained within the grip of the gun.
When you pull the trigger of a semi-automatic pistol, the cartridge fires, propelling the bullet out of the barrel. Recoil energy pushes a reciprocating slide backwards to extract and eject the empty cartridge case. Spring pressure then drives the slide forward to push another cartridge into the firing chamber. Pressing the trigger again repeats the cycle. This process can continue until the ammunition in the magazine has run dry.
The Revolver
Most modern revolvers carry six cartridges circumferentially in a round steel cylinder that rotates around a central shaft. In most cases, you activate a latch on the side of the gun that allows the cylinder to swing out of the frame. You then load the round cylinder with individual cartridges and snap it back in place.
Most revolvers can be fired two ways. When fired in the double-action mode, you simply pull the trigger. This maneuver rotates the cylinder, indexes an individual chamber in line with the barrel, and cocks the hammer and then drops it to fire the round. Releasing and then pulling the trigger again repeats the process.
As an alternative, most revolvers also allow you to manually cock the hammer back with your thumb. This mode of fire is called single-action. This maneuver automatically rotates the cylinder and aligns a cartridge with the barrel when you use your thumb to cock the hammer. Pulling the trigger then simply drops the hammer, firing the shot. As the hammer is manually cocked in this mode, single-action fire produces a shorter, lighter, crisper trigger pull over double-action operation which is longer and heavier. This is because the gun’s mechanism has so much less work to do when compared to the double-action mode.
Despite its age, the classic revolver still maintains a healthy following even today. Revolver actions are exceptionally strong and are as a result generally able to manage heavier cartridges than might reasonably fire in a semi-automatic pistol. The heavy nature of the design also lends itself to excellent accuracy. Lastly, the nature of the firing mechanism is such that revolver triggers are amenable to exceptionally crisp performance. Downsides include bulk, weight, and limited ammunition capacity.
Denouement
While revolvers are still widely used for target shooting and hunting applications, most modern shooters use semi-automatic pistols for concealed carry and personal defense. Advances in metallurgy and design have made these autoloading pistols comparably reliable to revolvers, and they are almost invariably easier to carry and conceal. However, variety is the spice of life.
Some shooters gravitate towards trim pocket pistols. Others will run a revolver or nothing at all. In shooting like most human pursuits our innate individuality expresses itself in our personal preferences.