Due Process, Restraining Orders, and Gun Rights

No one is supposed to be deprived of their rights without due process of law. That’s in the Constitution. It’s not something someone made up and it’s something we should all be prepared to defend. After all, if rights can be stripped away willy-nilly, then who’s to say when your rights are the ones stripped?

As this post was published, the Supreme Court is hearing oral arguments in the case of U.S. v. Rahimi.

By all indications, Zackey Rahimi isn’t a good man. Yet he’s before the Supreme Court because his gun rights were stripped from him due to a restraining order.

As Jacob Sullum argues over at Reason, the burden of proof for one of those isn’t enough to actually count as due process.

Since 1994, federal law has prohibited gun possession by people who are subject to domestic violence restraining orders. Although that provision may seem like a commonsensical safeguard, the U.S. Court of Appeals for the 5th Circuit ruled last February that it was not “consistent with this Nation’s historical tradition of firearm regulation”—the constitutional test prescribed by the U.S. Supreme Court’s 2022 ruling in New York State Rifle & Pistol Association v. Bruen. On Tuesday, in United States v. Rahimi, the Supreme Court will consider whether the 5th Circuit was right about that.
Rahimi is primarily about the contours of the right to keep and bear arms as it was traditionally understood. But a Cato Institute brief notes that the case also raises the question of what due process requires when the government seeks to deprive someone of that right.
Are the procedural protections specified by Section 922(g)(8) enough to guarantee the “due process” that the Fifth Amendment demands before someone can be “deprived of life, liberty, or property”? The Cato Institute, joined by the Goldwater Institute, thinks not.
When Congress enacted this provision, the Cato brief notes, the Supreme Court had not yet recognized that the Second Amendment protects an individual right to arms, which happened 14 years later in District of Columbia v. Heller. “The bare-bones framework for dispossession upon issuance of a domestic violence restraining order set forth in § 922(g)(8) evinces a legislative perception that the stakes for the gun owner are negligible and that the amount of process required to extinguish his Second Amendment rights is correspondingly minimal,” Cato says. “Thus, all that § 922(g)(8) requires is notice of the proceeding and an opportunity to participate, together with either an express finding of dangerousness or an explicit prohibition of the use or threatened use of force against an intimate partner or child.”

This is an excellent point, because we will have people who argue that the Second Amendment isn’t an individual right.

Because the Heller decision hadn’t been made, there was some ambiguity about the status of an individual’s right to keep and bear arms. That’s now a lot clearer, of course, but the restraining order laws haven’t really changed.

Further, there’s another wrinkle.

Now that armed self-defense has been recognized as an interest on par with other constitutional rights, Cato argues, due process clearly requires more. Currently, federal law does not require notice to the target of an order that it will deprive him of his Second Amendment rights, which he may not realize. That information is important, Cato says, because a respondent might not be inclined to contest an order that he thinks will merely forbid conduct that is “already unlawful (physically assaulting another person)” or “at the very least unethical (harassing, stalking, or threatening an intimate partner or their child).”
Respondents may also surmise, based on judges’ readiness to issue protective orders “to virtually all who apply,” that challenging them would be futile or worse. Cato notes that respondents have no right to be represented by an attorney if they cannot afford one and may end up having to pay the other side’s legal fees. In Texas, where this case originated, that obligation goes only one way: Fees are shifted to the respondents if they lose, but respondents cannot recover their fees in the (unlikely) event that they prevail.

What that means is that people are essentially discouraged to try and defend themselves from such an order. If they’re unaware of what all is at stake and they believe they’re going to get screwed over in the process anyway, then it would likely seem reasonable to just roll with the punches.

Especially in light of the potential financial ramifications.

Due process isn’t supposed to work like that. Anyone who can lose their rights deserve to both know that’s on the table and to have a legitimate shot at defending themselves. That’s simply not the case right now.

As it stands, the media is focused on Rahimi, saying this case is about arming domestic abusers. It’s not. It’s about whether your estranged spouse can have you disarmed based mostly on her words and the quality of her acting skill.

That’s not due process. That’s being railroaded.

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