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A Fairly Detailed Discussion of the Second Amendment and Domestic Restraining Orders:

U.S. v. Luedtke (E.D. Wis. Nov. 18, 2008) upholds against a Second Amendment challenge the federal ban on possessing firearms while under a domestic restraining order, and offers more analysis than most district court Second Amendment decisions have provided. I'm not sure the analysis is entirely right, but it struck me as worth noting. Note also that the decision leaves open the door to challenging what strikes me as the most troublesome aspect of the federal ban, which is that in principle it could apply even in jurisdictions where courts may issue a boilerplate injunction that "explicitly prohibits the use, attempted use, or threatened use of force" without a finding that the target has indeed in the past already used, attempted to use, or threatened to use illegal force.

theobromophile (www):
I'm not overly familiar with Second Amendment jurisprudence, but I was surprised to see the "virtuous citizen" discussion thrown in there. Perhaps "virtuous" is used here in a manner that is different from how it is used in normal conversation; otherwise, it injects a moral overtone to what should be a very objective analysis. That language, as well as "potentially irresponsible", seems to be much broader than the limitations imposed by age/felonious background/severe mental defect. The additional and broader language also seems to be unnecessary for ruling on the validity of one of that trio of limitations.
11.26.2008 1:35pm
David Chesler (mail) (www):
There is no reason for [people] who beat[ ] their wives or abuse[ ] their children to own a gun

Sen. Lautenberg: What are the reasons for people who neither beat their wives nor abuse their children to own a gun? For each of those reasons, please explain why they do not apply to the wife-beaters and child-abusers.

I suspect from the Senator, it would be a very short list.


Injunctions confuse me. Here we have someone ordered by a court to refrain from 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[.] But isn't everyone generally prohibited from doing that anyway?
(If you're under such injunction, and your intimate partner engages in the kind of behavior that would normally justify force in self-defense, do you violate the terms of the injunction if you defend yourself with that degree of force?)

As Professor Volokh says, that clause is "boilerplate" - no harm in ordering someone to obey the law that he's already obliged to obey, right? It just saves the bother of technicalities like a trial on the merits if you can jail him for violating the order instead of trying him on criminal charges.

If I want to get a gun from some reason (like collecting or target or hunting or personal protection or defense of state) should I be required to get an order from a judge permitting me to beat my wife or abuse my children?
11.26.2008 2:20pm
cboldt (mail):
-- But isn't everyone generally prohibited from doing that anyway? --
.
Restraining Orders are a species of law that is drawn to an individual, rather than to society at large, and typical prohibit conduct that is not prohibited to society at large. E.g., no association with person XYZ, but the rest of the world is free to associate with person XYZ.
.
This federal law basically results in all judges including, as part of certain RO's, a requirement that the target surrender all his/her firearms to the government.
11.26.2008 2:27pm
David Chesler (mail) (www):
This part of this RO, and the order proposed by Attorney Wendy Murphy, an action for a civil rights injunction against state Sen. Jim Marzilli, D-Arlington [which], if granted, will operate similar to a restraining order on behalf of all women, carrying a penalty of up to 10 years in state prison if Marzilli is convicted of assaulting a woman after the injunction is issued, Murphy said.

seem to prohibit already-prohibited conduct. (Marzilli story here. A State Senator either went off his rocker or revealed his true colors, and behaved inappropriately to a number of women. The injunction was apparently not granted; a narrower RO concerning the alleged victims and one city was issued.)
11.26.2008 2:57pm
Happyshooter:
ROs are issued by judges who never see either party, with no due process, and are drafted by left wing womyn's groups who have a deep inner faith that all men are evil.
11.26.2008 2:59pm
TomHynes (mail):
Happyshooter:

I draft restraining orders as a volunteer attorney for clients of a DV shelter.

- Temporary restraining orders are usually ex parte, but only last 30 days. Permanent (5 year) orders require actual notice and a hearing with both parties before a judge.

- I am a libertarian male, and don't sense any anti male miscogeny in my colleagues.

- I have never been involved in a case where there was no demonstrated history of illegal force or threatened force. They might exist, but not to my knowledge.
11.26.2008 4:15pm
Bill McGonigle (www):
Tom,

It might never happen where you are, but it happened to a neighbor of mine. He 'had guns' and his ex 'thought he was going to use them against her', so the judge issued a restraining order.

He's the kind of guy who goes on expensive hunting trips and has guns I can't afford. She's now on her meds and feeling much better.

'Erring on the side of caution' is no excuse when you're talking about taking away a man's constitutional rights.
11.26.2008 5:24pm
Thomas_Holsinger:
The decision seems unclear on whether Wisconsin law affords the respondent an opportunity to request a hearing before a four-year ban on weapons possession may be imposed, or a ban for any duration.

It seems to me that 18 USC 922(g)(8) requires notice and an opportunity to be heard before ANY weapons possession ban may be imposed under that statute.

I can see state laws allowing temporary bans, say for a week, without notice and an opportunity to be heard, based on exigent circumstances with a high burden of proof required, but a ban for any significant period, without such notice and opportunity, strikes me as unconstitutional under Heller.
11.26.2008 5:29pm
Roger Schlafly (www):
Are you kidding? Restraining orders get issued for the flimsiest of reasons. Eg, a restraining order was issued against TV's Dave Letterman, prohibiting him from using code words on his TV show to harass a woman in another state.
11.26.2008 5:31pm
ReaderY:
Would a misdemeanor illegal abortion in a liberal state justify a firearms prohibition if a conservative judge happened to feel that it was a misdemeanor only because the state doesn't take abortion as seriously as other forms of brutal behavior, it really should be a felony, and the state's view of the matter is wrong?

Why does an unelected judge's individual personal opinon about the seriousness of an offence trump an elected legislature's collective considered judgement, particularly on sensitive matters?
11.26.2008 6:37pm
whit:

- I have never been involved in a case where there was no demonstrated history of illegal force or threatened force. They might exist, but not to my knowledge.



plenty exist. to MY knowledge.
11.26.2008 7:21pm
NE2d:
Prof. Volokh,

Sorry to comment on an unrelated matter, and maybe you've already been told about this numerous times, but I have to pass on this gem from Wikipedia:

From your entry: "He has criticized judicial citations of Wikipedia, arguing that information found on Wikipedia may be unreliable."

From the entry on the "Saxbe fix": "These pay raises were by executive order in accordance with cost of living adjustment statutes, as noted by legal scholar and Ninth Circuit appellate judge Eugene Volokh."
11.26.2008 7:56pm
zippypinhead:
"Ninth Circuit appellate judge Eugene Volokh."
Appellate judge, appellate litigator, what's the difference? Both are indoor work, no heavy lifting, as long as you don't pick up too many F.3rd volumes at once. Hey, with Wikipedia, you get what you pay for...

But seriously: 922(g)(8) imposes a requirement for notice and an opportunity to be heard before a restraining order can be used to reclassify someone as a prohibited person. This means that, in theory, ex parte orders should not count. However, notice and opportunity to be heard is a very low procedural hurdle in practice. Mere civil legal notice (which in some jurisdictions can be effectuated even by mail to one's last known address) is a far cry from ensuring that the restraining order was granted after a full, adversarial hearing. Although domestic relations is about as far from my area of core expertise as you can get, I do know that restraining orders are entered all the time without the respondent being present. So as a practical matter, one CAN lose one's RKBA in what is effectively an ex parte proceeding.

Two other big problems with 922(g)(8) are:

(1) No minimum standards of due process: there is no minimum petitioner's burden of proof, and no requirement for a reasonable time limit on the disqualifying order. Some courts enter these orders on really minimal showings (since judges tend to get excoriated if they deny a motion for a restraining order and later something bad happens). And the duration of such orders can vary greatly depending on jurisdiction, the judge, and in some places, even how counsel for petitioner drafts the proposed order for the Court's signature -- there could literally be NO sunset.

(2) the statutory standard can sometimes be met without any actual threat of physical violence of the sort for which firearms are even minimally relevant. A restraining order can cause you to be a prohibited person where it prohibits the respondent from "engaging in other [unspecified] conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and . . . includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child." Based on the rather tortured divorce proceedings of one distant family member, I am informed that a restraining order prohibiting a parent with a history of DUI arrests from operating a motor vehicle with his kids inside could, if worded the right way, also eliminate the parent's right to possess firearms. A clever divorce lawyer suggested to my relative that they threaten to make just such a motion, as a way of helping extort a better property settlement.

If Sarcastro were around, he'd probably make the point that the real purpose of 922(g)(8) is merely to encourage "traditional family values." Want to keep your guns? Better be nice to the Little [Wo]man...
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11.27.2008 4:10am
cboldt (mail):
-- The decision seems unclear on whether Wisconsin law affords the respondent an opportunity to request a hearing before a four-year ban on weapons possession may be imposed, or a ban for any duration. --
.
813.12(2) prescribes "The action commences with service of the petition upon the respondent," 813.12(4)(a)(2) "The petitioner serves upon the respondent a copy or summary of the petition and notice of the time for hearing on the issuance of the injunction, or the respondent serves upon the petitioner notice of the time for hearing on the issuance of the injunction."
.
Under 813.12(4)(c)(2), the four-year duration is extensible at least one additional four-year period, without prior notice and without any opportunity to rebut the petition for extension.
.
Firearms surrender is not required if the respondent is required to carry arms as a condition of employment. I think this is a violation of equal rights. Police, sheriffs, sheriffs deputies, federal agents, judges, etc. should be bound by the same laws relating to prevention of domestic violence as the rest of the population. They can find alternative employment for the duration of the order, or obtain an assignment that does not require possession of a firearm.
.
As a matter of effectiveness, it seems that an order that both prohibits contact and prohibits firearms is "belt and suspenders." If weapons possession -IS- necessary, then the respondent might also be prohibited from possession of any knives above certain dimensions, swords, axes, hatchets and the like. Also, objects that can cause serious injury by bludgeoning, e.g., baseball bats and hammers. None of these items is necessary, and all are potentially deadly weapons in the hands of an enraged opponent.
11.27.2008 8:35am
cboldt (mail):
-- a history of DUI arrests from operating a motor vehicle with his kids inside --
.
I honestly don't know the answer to this, but wonder if it's possible that a history of DUI arrests (kids in the car perhaps an an aggravating factor) might itself be a felony, and necessitate a permanent surrender of firearms regardless of a divorce or other domestic proceeding.
.
Ahh, just looked briefly. There is such a thing as felonious DUI, typically triggered as multiple offenses in a certain time period.
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