National SCOTUS rules on Domestic Violence & firearms carry

[MichaelH]

Yes, exactly. The highest possible scrutiny. The law is patently invalid otherwise. At least you didn't bring up the "you can't yell fire in a theater" myth.

So it sounds like we agree and the question is whether the VAWA (which also applies to men, FWIW), domestic violence restraining orders, and red flag laws that temporarily restrict a persons ability to exercise their 2nd Amendment rights meets a compelling state interest by the least restrictive means.

I think the most complaints I've seen, at least that have any merit, is concern about procedural due process rights of the subject of the court order in question. Maybe it should be necessary to give notice and have a hearing before an order is issued, instead of one granted ex parte, but that certainly makes it hard for red flag laws to be effective in anyway. I wonder what kind of process that someone alleged to be mentally unfit to safely possess firearms should be given?

I'm not arguing, just thinking.

 

[oa98pistol512]

My read of the article that you link to from BBC News, Washington, says it was a Fifth Circuit Court decision, not SCOTUS directly. Though the 5th Circuit Court does cite Bruen.

Aside from that, I have very little 2A sympathy for someone under a restraining order for confirmed or alleged domestic violence. Just my opinion. YMMV.

Yep and I can go down to court house say we are lovers and you have threatened me and have guns and now you have a restraining order with no merit. Would you care then?

 

[Xaevian]

the question is whether the VAWA (which also applies to men, FWIW), domestic violence restraining orders, and red flag laws that temporarily restrict a persons ability to exercise their 2nd Amendment rights meets a compelling state interest by the least restrictive means.

It does not.

 

[titsonritz]

This is a huge issue as it takes no effort to go downtown to fill out a paper full of lies , then a Judge reads it and issues a restraining order after that the police come to your home and hand you the legal restraining order with a court date, Violating this means your arrest and or loss of rights.
It's that simple then you need to hire an attorney for a few thousand to prove your innocence as the burden is on the accused not the accuser.
Once it is said and done you prove your innocence wasted thousands of dollars and hours of time just to see the accuser walk away laughing as
they face no charges for lying to the court.
This is why I am 100% against red flag laws until the Justice system has a mandatory charge for the accuser filing false claims and perjury of the court.
False claims that can trigger a red flag law should themselves face jail time .
.[-

Me too, and here it is:
Having been falsely red flagged it was extremely disappointing that the ex who accused me only faced the repercussions of paying the attorney fees, in $$ installments. I missed Christmas with my kid and ~13 days of time but restraining order court is not family court, so there is nothing to be done about lost time there. Separate courts, separate lawyer fees too, $$$$ needed to be taken unexpectedly from savings for retainer. Hours will depend on your case and how strong your ability to prove your own innocence is. Vindictive ex's will use this loophole and they have as I can attest to. It just takes a few choice framed words (with a topping of complete lies) to get it granted. In response when I got my chance after over a week of waiting it took 3 minutes of recording (out of ~8 minutes total) to disprove the hours of false witness and testimony in court. Would I want something potentially horrible happening if I was in the judges position? Of course not and I may have made the same decision as the judge did. The problem is that your are judged in absentia. The process itself is absolutely broken, unconstitutional, and worse completely fails to achieve its stated goals. Give 24 hours to stand in front of a judge and plead your case. How does giving a 48 hour window to notify the court you have transferred your firearms keep anyone safe? If I wasn't as blessed and with as strong support network as I have, I would have lost significantly more than my 2A and Christmas. I'll hope that no one else has to suffer such madness.

P.S. Record every encounter with an ex. Cell phone in pocket. Bring a friend if you want to be extra entirely compliant to the law on the recording you are making of picking up your child during a scheduled exchange.

There really isn't any more to add. Red Flag Laws are BS.

 

[The Heretic]

Not to be disagreeable or disrespectful, but a fair bit of Supreme Court effort has gone into defining and explaining just how the Constitutional rights set forth in the Amendments are not absolute. People lose sight of the fact that even if framers did more than any government in history to protect individual rights those rights still do not exceed the rights of the state to limit those rights in some circumstances.

From the Wikipedia, as the easiest source for a quick definition of "strict scrutiny":

In U.S. constitutional law, when a law infringes upon a fundamental constitutional right, the court may apply the strict scrutinystandard. Strict scrutiny holds the challenged law as presumptively invalid unless the government can demonstrate that the law or regulation is necessary to achieve a "compelling state interest". The government must also demonstrate that the law is "narrowly tailored" to achieve that compelling purpose, and that it uses the "least restrictive means" to achieve that purpose….

While the SCOTUS is literally the Supreme court, they have often been wrong in their interpretation of the Constitution, especially when it comes to weighing our Natural Rights vs. "a compelling state interest". The government quite often says the laws they enact are valid due to a "compelling state interest" and courts all to often agree.

The theory of Natural Rights is that they are only in conflict when they infringe on the Natural Rights of another individual - not when they conflict with the interest of the government.

Also, there are no "Constitutional Rights" per se.

The US Constitution enumerates some of our Natural Rights, but not all of them and explicitly states such (Ninth & Tenth Amendments), and for the most part constrains the government, not the individual, from infringing on those rights, and others which it does not enumerate but does recognize.

 

[MichaelH]

I agree that the USSC does get it wrong sometimes (if we could ask Dredd Scott he'd think so), but the country we live in isn't necessarily willing to place the natural rights of the individual—enumerated or not—over that of the collective (the state) when those rights might threaten the rights of other individual or collective members of the state or the supremacy of the state itself. By being citizen participants/members of the state we surrender some aspect of those natural rights for the benefits and burdens of being part of American society controlled by the various divisions of the state, even if we had no say in where we were born and perhaps would rather not.

Obviously this delves into the realm of political philosophy and could be discussed at length, but I tend to approach these discussions based on what IS rather than what I think should be. My original point is really intended to remind the forum 's members that as hard a&$ as we want to be about our 2A rights they aren't absolute. The Supremes have, relatively recently, declared that the 2A is an individual right, not tied to militia service, and not a second class right, but decisions that benefit firearms owners like Heller and Bruen make it clear that the right to bear arms is not immune to government restrictions/regulation. Unfortunately Bruen didn't do the best job of providing a bright line framework for what restrictions are permitted and what restrictions violate the 2A. IMO the Court's reliance on "history" probably creates more areas of potential factual dispute rather than providing clear legal principles on how to judge firearms regulations/restrictions.

Anyway, I've wasted enough time. However if any tNW OR resident/members in the Tri-county area are served with FAPA RO's that restrict firearms rights, litigating and overturning (or keeping them in place) is my job, so feel free to PM me if you need help or a referral!

 

[po18guy]

Here is a video by a second amendment attorney that gives a clearer view that the LWM.

 

[The Heretic]

My original point is really intended to remind the forum 's members that as hard a&$ as we want to be about our 2A rights they aren't absolute.

They are (absolute) - at least much more absolute than many who say they are not would have them be.

The problem is that a LOT of people say they are not absolute, including the SCOTUS, and that is the problem; that we do not have the freedom to enjoy and practice our rights because it became "pragmatic" to put limits on those rights and then we go down a slippery slope as more and more limits are put on those rights.

So yeah, I push back as much as possible when someone says they are not absolute, because it is better to do that than cave in and agree - otherwise it just becomes a matter of relativity and pragmatism, and we lose as the freedom to enjoy/practice our rights is slowly but surely eroded in favor of government and "society".

 

[MichaelH]

Yep and I can go down to court house say we are lovers and you have threatened me and have guns and now you have a restraining order with no merit. Would you care then?

I'd show a day later objecting to issuance of the RO and requesting a hearing and my attorney fees. The judges I know view FAPAs as relatively easy to get and, if BS, when challenged easy to get dismissed. I recognize this isn't that intimidating to me. If you didn't do anything challenge it.

 

[L84Cabo]

OP, you should update your title because this was not a SCOTUS ruling. Not yet anyway, and the 5th circuit might have rescinded and updated their initial opinion in anticipation that this case may go all the way to SCOTUS as the US is likely to appeal.

The Four Boxes Diner video does an excellent job of explaining what is going on and the problem with these civil restraining orders. Too often these civil orders are used tactically by disgruntled spouses in an effort to help garner money or child custody...or simply as a means of retribution...when no violence has occurred. Remember that often times no law has been broken or crime committed by the purported offending individual. Often times these things get issued because one person claims they are "afraid" and many judges subsequently grant these orders to cover their butts...because it could possibly come back on them if they don't issue the order and it turns out that their wrong.

From my standpoint, if we believe that someone is so dangerous that we must take away their guns, then what in the hell are these people doing out on the street if they are that dangers...and as there are countless other ways they could cause harm than with just guns. Why aren't their knives and baseball bats confiscated too?

Also, what will often happen in these cases is that the judge will issue restraining orders on both parties, to further cover their butt. But think about that...if one party is truly dangerous, you just disarmed the other party and took away their only means of defense.

As for Red Flag laws, don't even get me started on those things. Having your rights taken from you when you have committed no crimes, broken no laws, you have not had the ability to face your accuser, you have not had your day in court, you have not had the ability to confer with legal council...and as a side note if you cannot afford an attorney, NONE will be provided to you because you only get that benefit when you have actually committed a crime...and all of this with little if any actual evidence and/or little more than hearsay testimony...these things are EXACTLY the type of tyranny that our Founders warned us about. Red Flag laws are the very definition of violation of due process.

 

[Xaevian]

https://www.reddit.com/r/combinedgifs/comments/9xuyli

 

[dangerranger60]

Well, back when I carried badge and gun, I thought it a great injustice to be denied a fundamental civil and human right for a conviction of a single finger poke in the chest.

Or simply hanging up a phone. What other civil right can be permanently deigned for a minor charge? Thousands are permanently barred from owning a gun because they hung up or unplugged a phone. I have no sympathy for a wife beater. But cases that did not involve felony violence should have been dumped years ago. DR

 

[Provincial]

I'd show a day later objecting to issuance of the RO and requesting a hearing and my attorney fees. The judges I know view FAPAs as relatively easy to get and, if BS, when challenged easy to get dismissed. I recognize this isn't that intimidating to me. If you didn't do anything challenge it.

Easy to say, since you make your living, at least partially, by doing this. But look at the injustice of someone put in that position. He did nothing wrong. Someone lies to get the RO issued, and it was issued without any chance of rebuttal. Now your life is upended, and you incur expenses as a result.

What if you don't have the resources to fight the RO? In fact, this is an act of discrimination against the financially weak.

The cherry on the top of this injustice is that there is no effective deterrent for perjury on the part of the complainant.

In effect the Government is telling a lying, vindictive person who wants to ruin someone else's life "I'm your Huckleberry!" Although that phrase seems to have been twisted in recent times, here is the meaning in which I use it:

https://english-grammar-lessons.com/im-your-huckleberry-meaning/

 

[duldej]

It's another case of well, "it's just the restraining order types that get targeted, and not me so go ahead" problems.

I do not trust the government, especially not in freak-out-emergency-clause Oregon, with the great big OHA and state government, in general, to give me, or anybody else, the time of day if so accused, even if the accusation was unwarranted.

Do not give up an inch. Should have learned with Measure 114 that gun control is a slippery slope. They are more than happy, willing, and prepared to take that next mile.

I recommend dropping the elitism. 2A is a fundamental right of all US Citizens.

 

[duldej]

Yep and I can go down to court house say we are lovers and you have threatened me and have guns and now you have a restraining order with no merit. Would you care then?

I'd show a day later objecting to issuance of the RO and requesting a hearing and my attorney fees. The judges I know view FAPAs as relatively easy to get and, if BS, when challenged easy to get dismissed. I recognize this isn't that intimidating to me. If you didn't do anything challenge it.

With due respect to your line of work (we've all got to make a living), this seems needlessly complicated, and argued from within a needlessly complicated, albeit profitable, framework.

Similar to big pharma pushing pills that cure you of one malady while causing side effects even more serious and requiring additional pharma intervention.

I don't think anybody plays a winning role in this scheme, although judges & lawyers do manage to get paid.

It's really not about rights, in this regard. Just about $ and who profits. In the one case it is doctors and pharma. Here it's lawyers, judges.

Similar to proactive mask & jab advocates, it is funny how leftists will champion gun control causes when all they're really doing is fostering the legal profession.

 

[MichaelH]

Easy to say, since you make your living, at least partially, by doing this. But look at the injustice of someone put in that position. He did nothing wrong. Someone lies to get the RO issued, and it was issued without any chance of rebuttal. Now your life is upended, and you incur expenses as a result.

What if you don't have the resources to fight the RO? In fact, this is an act of discrimination against the financially weak.

The cherry on the top of this injustice is that there is no effective deterrent for perjury on the part of the complainant.

In effect the Government is telling a lying, vindictive person who wants to ruin someone else's life "I'm your Huckleberry!" Although that phrase seems to have been twisted in recent times, here is the meaning in which I use it:

https://english-grammar-lessons.com/im-your-huckleberry-meaning/

Yeah, on the other hand it prevents some angry spouses from going to jail forever when temporarily insanely pissed off at their divorce filing spouse by making it harder to kill their spouse and kids (and giving more evidence for the gun grabbers). For the folks who slap their family around, I feel no sympathy. If you're innocent, challenge it even if you can't find a lawyer. If the court believes the liar or you don't show, FAPA restraining orders automatically expires in one year in Oregon.

 

[RX-79G]

Innocent until proven guilty

The rights of due process

I suppose jail is now an infringement as well?