Beating the bad guy to the punch: Constitutional rights and romantic partner violence
According to Danny Reeves, a U.S. District Court Judge for Eastern Kentucky, a restraining order against someone accused of domestic violence is no impediment against the person possessing firearms. Reeves’s ruling came in a case in which a husband is charged with falsely telling a licensed firearms dealer that he was not under any protective order, thus being allowed to complete his purchase. The ruling applies to the possession only, not to the false statement, and the U.S. Attorney in the case has filed an appeal.
This case comes after 2022’s Bruen decision in which Justice Thomas found that any gun law whose basis does not have roots in the time of the framers of the Constitution is likely to be found to be contrary to the document that they wrote, thus making gun control mostly dead, with no Miracle Max around to revive it.
Restraining orders exist on a continuum with red flag laws and the Lautenberg Amendment as a body of law designed to deny unsavory individuals the lawful exercise of gun rights, the character of said persons having been determined by varying evidentiary requirements ranging from asking a judge politely to producing supporting evidence for a judge to review and finally to the subject of the order having been convicted of crime of domestic violence. The problem here is that there are varying levels of opportunity for the accused to offer a defense. For some red flag orders, the respondent may not even be informed that proceedings are taking place, and since these are matters of civil law unless the business extends to a criminal court case, the accused does not enjoy the right to an attorney.
And now we wander in the forest of male fears—and yes, by far, most romantic partner abusers are men—and reasonable constitutional concerns about due process. It is important to include in these considerations that over two-thirds of mass shooters have a history of domestic violence and that persons who commit violence against a romantic partner will often repeat the offense—which is to say that under the general umbrella of gun control, unlike such examples as assault weapons bans or magazine capacity restriction that are typically a burden on the law-abiding and no limit on would-be wrongdoers, there is a social utility in saying that an abuser or a suspected abuser should not be in possession of firearms, at least for some period of time.
And yet, Judge Reeves’s ruling may be on solid constitutional grounds. Though perhaps not. There is historical precendent in barring undesirable persons from being armed, and while the specific bans were often racially targeted—slaves and Native Americans being the frequent subjects of such laws—the principle remains that some people were not legally worthy of exercising the right to personal arms at the time of our founding as a nation. Whether the current Supreme Court would be willing to view abusers as deserving of that prohibition is anyone’s guess, as is the question of how much evidence against the subject of such orders would be seen as necessary.
The political implications of this ruling are much clearer. We are not even a year out from the court’s overturning of Roe v. Wade, and the #MeToo movement that revealed widespread assaults on women in the workplace is still with us—as it should be. A court declaring that domestic abusers retain their right to own firearms—and possibly to have such guns on their persons, especially in constitutional carry states—would be hard pressed to find a measure better calibrated to enrage supporters of women’s rights, a group to which I belong.
So what can be done? As I said above, given today’s ideological makeup of the judiciary, I see this ruling ultimately being approved by the Supreme Court, with limited range for Congress to rein things in for potentially many years to come. Short of a constitutional amendment, what is left to us is a combination of modifying current laws regarding romantic partner violence and improving the social services available to the victims.
This will cost money. As a leftist, I am subject to the accusation of wanting to spend tax dollars, but such expenditures that achieve social progress are a worthwhile investment. With that in mind, regarding my second suggestion, I would guarantee that anyone who have endured abuse from a spouse or other partner has the means of getting out of the situation. This would include shelters for the immediate emergency, medical services both physical and psychological, and aid in setting up a new life away from the abuser. One of the key struggles in prosecuting domestic violence cases is getting the victims to procede against their abusers by filing a complaint or testifying in court. Show the abused that they have a good way out, and I predict that we would have more cases brought against the perpetrators.
On the first point, those cases must be taken much more seriousy in the law. The Constitution promises a speedy trial, and we should see to it that abusers get exactly that. Romantic partner violence should always be a felony and prosecuted as such—recall that the Heller decision names felons as persons who are yet prohibited from possessing firearms. If someone has committed acts of violence against a partner—or has made specific threats of violence without good cause against anyone—that person should be arrested, investigated, tried, and upon sufficient evidence, convicted. This would remove the troublesome character of protective orders that seek to deal with constitutional rights and real dangers as civil matters.
I left one part out that I will address now. Treating these situations as serious will also require the accused to be extended all the protections that anyone else suspected of or tried for a crime receives. So be it. It is long past time that we see gun rights as the equals of all other enumerated rights, and this means both greater exercise and greater responsibilities both individual and social. The latter includes paying for public defenders and prison cells. But the benefits of removing some of the most poisonously violent persons from general circulation would far outweigh the costs.
And if cost is the main objection, we could pardon one pot user or similar convicted of mere drug possession for every new abuser found guilty.
Sales of Cheetos and Pink Floyd records might go up as a result, but those are consequences I could live with in pursuit of a more just society.