How To Make Rahimi Constitutional
It's been a while since I have written an article here. I woke up this morning to the autistic screeching of the gun banners demanding all over social media that the Supreme Court ensure that "domestic abusers" have their right to keep and bear arms taken away from them. I got sick of interacting with these numbskulls after a while and decided to write this article to clear up some misconceptions about the Rahimi case.
The left wants you to believe that Rahimi is about keepings guns from those convicted of domestic violence. In reality, this case has nothing to do with criminal convictions. Rather, it relates to the taking of guns from persons who are subject to restraining orders intended to prevent the commission of domestic violence. Although sometimes related to criminal proceedings, a proceeding on a domestic violence protective order is civil in nature. That means that the burden of proof in most states is "preponderance of the evidence" while, to convict that same person of domestic violence, the state must meet the most stringent burden of proof recognized under our law: beyond a reasonable doubt.
In some states, like Texas, the standard is actually lower. Article 7B of the Texas Code of Criminal Procedure relates to protective orders for persons who are alleged to be victims of sexual assault or abuse, indecent assault, stalking, or human trafficking. It states: "At the close of a hearing on an application for a protective order under this subchapter, the court shall find whether there are reasonable grounds to believe that the applicant is the victim of sexual assault or abuse, indecent assault, stalking, or trafficking. . . [i]f the court finds that there are reasonable grounds to believe that the applicant is the victim of sexual assault or abuse, stalking, or trafficking, the court shall issue a protective order that includes a statement of the required findings. Firearms are prohibited under Texas law for a person subject to such a restraining order in Texas (unless a licensed peace officer). Tex. Code. Crim. Proc. 7B.005(d).
The provision of the Texas Code of Criminal Procedure for the kinds of domestic violence restraining orders under consideration in Rahimi is no better. Tex. Code of Crim. Proc. Art. 17.292 allows a magistrate to issue a restraining order after any arrest for an offense involving family violence. The standard for an arrest is nothing more than probable cause which, often, is based upon the "reasonable information and belief" of a police officer. No evidentiary hearing is required; the affidavit of a peace officer is enough. Simply put, such a low evidentiary standard is outrageous where an accused person (presumed innocent until proven guilty) faces the immediate loss of a fundamental right. The current framework is unconstitutional and the Supreme Court should require - at a minimum - a full evidentiary hearing prior to depriving a person of their constitutional rights
Additionally, the Supreme Court needs to clarify the acceptable burden of proof in proceedings such as this. My suggestion is that a person seeking an order that would take a person's guns away should, at a minimum, be required to prove their case by clear and convincing evidence. This is the burden of proof required to demonstrate an entitlement to punitive damages in typical civil cases and it is also the burden of proof required to remove a child from the custody of a parent in CPS proceedings. It is not an insurmountable burden by applicants and should be seen as the minimum when a person's gun rights are on the line.
Finally, it should be noted that an accused person who is unable to afford an attorney only has the right to court-appointed counsel in a criminal case where confinement to jail is affixed as a possible punishment. Once again, proceedings involving domestic violence protective orders are civil - not criminal - in nature. Even though a person may not lawfully be sentenced to confinement in such a proceeding, they can still lose their right to keep and bear arms. If they cannot afford an attorney, they are required to make due without one. This is unacceptable. Since cases of this nature involve a person's fundamental rights, the Supreme Court should mandate that indigent persons receive court appointed counsel before they can be subjected to an order that would strip them of such rights.
The simple truth is that there are a lot of women AND men out there who use bogus allegations of domestic violence to gain an advantage in divorce or child custody proceedings. There are some who do so at the encouragement of their attorneys and, of course, this is something that both the bar and the courts need to do a better job at curtailing and punishing. There are also a small number of people out there who are violent toward their spouses, partners, or children. These are probably not people who ought to be armed and there are certainly measures within confines of the Constitution and consistent with Bruen that the state may take to disarm those who are actually engaged in abuse. However, before we start stripping people of their fundamental rights, should we not ensure that they receive due process under the law? Stripping of a person of such an important right - essentially turning them from a citizen into a serf - is not something that either we or the Supreme Court ought to take lightly. Is it really too much to ask that those who bring these protective order claims be required to prove domestic violence by clear and convincing evidence at a full hearing where the one faced with serfdom - even temporarily - is entitled to representation by counsel regardless of his or her income? Or do we really want to live in a society that says "fuck due process" and enslaves people without a meaningful right to object?
The left wants you to believe that Rahimi is about keepings guns from those convicted of domestic violence. In reality, this case has nothing to do with criminal convictions. Rather, it relates to the taking of guns from persons who are subject to restraining orders intended to prevent the commission of domestic violence. Although sometimes related to criminal proceedings, a proceeding on a domestic violence protective order is civil in nature. That means that the burden of proof in most states is "preponderance of the evidence" while, to convict that same person of domestic violence, the state must meet the most stringent burden of proof recognized under our law: beyond a reasonable doubt.
In some states, like Texas, the standard is actually lower. Article 7B of the Texas Code of Criminal Procedure relates to protective orders for persons who are alleged to be victims of sexual assault or abuse, indecent assault, stalking, or human trafficking. It states: "At the close of a hearing on an application for a protective order under this subchapter, the court shall find whether there are reasonable grounds to believe that the applicant is the victim of sexual assault or abuse, indecent assault, stalking, or trafficking. . . [i]f the court finds that there are reasonable grounds to believe that the applicant is the victim of sexual assault or abuse, stalking, or trafficking, the court shall issue a protective order that includes a statement of the required findings. Firearms are prohibited under Texas law for a person subject to such a restraining order in Texas (unless a licensed peace officer). Tex. Code. Crim. Proc. 7B.005(d).
The provision of the Texas Code of Criminal Procedure for the kinds of domestic violence restraining orders under consideration in Rahimi is no better. Tex. Code of Crim. Proc. Art. 17.292 allows a magistrate to issue a restraining order after any arrest for an offense involving family violence. The standard for an arrest is nothing more than probable cause which, often, is based upon the "reasonable information and belief" of a police officer. No evidentiary hearing is required; the affidavit of a peace officer is enough. Simply put, such a low evidentiary standard is outrageous where an accused person (presumed innocent until proven guilty) faces the immediate loss of a fundamental right. The current framework is unconstitutional and the Supreme Court should require - at a minimum - a full evidentiary hearing prior to depriving a person of their constitutional rights
Additionally, the Supreme Court needs to clarify the acceptable burden of proof in proceedings such as this. My suggestion is that a person seeking an order that would take a person's guns away should, at a minimum, be required to prove their case by clear and convincing evidence. This is the burden of proof required to demonstrate an entitlement to punitive damages in typical civil cases and it is also the burden of proof required to remove a child from the custody of a parent in CPS proceedings. It is not an insurmountable burden by applicants and should be seen as the minimum when a person's gun rights are on the line.
Finally, it should be noted that an accused person who is unable to afford an attorney only has the right to court-appointed counsel in a criminal case where confinement to jail is affixed as a possible punishment. Once again, proceedings involving domestic violence protective orders are civil - not criminal - in nature. Even though a person may not lawfully be sentenced to confinement in such a proceeding, they can still lose their right to keep and bear arms. If they cannot afford an attorney, they are required to make due without one. This is unacceptable. Since cases of this nature involve a person's fundamental rights, the Supreme Court should mandate that indigent persons receive court appointed counsel before they can be subjected to an order that would strip them of such rights.
The simple truth is that there are a lot of women AND men out there who use bogus allegations of domestic violence to gain an advantage in divorce or child custody proceedings. There are some who do so at the encouragement of their attorneys and, of course, this is something that both the bar and the courts need to do a better job at curtailing and punishing. There are also a small number of people out there who are violent toward their spouses, partners, or children. These are probably not people who ought to be armed and there are certainly measures within confines of the Constitution and consistent with Bruen that the state may take to disarm those who are actually engaged in abuse. However, before we start stripping people of their fundamental rights, should we not ensure that they receive due process under the law? Stripping of a person of such an important right - essentially turning them from a citizen into a serf - is not something that either we or the Supreme Court ought to take lightly. Is it really too much to ask that those who bring these protective order claims be required to prove domestic violence by clear and convincing evidence at a full hearing where the one faced with serfdom - even temporarily - is entitled to representation by counsel regardless of his or her income? Or do we really want to live in a society that says "fuck due process" and enslaves people without a meaningful right to object?
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