How certain should we be that someone did something wrong before they lose their right to own a gun? Tuesday, the Supreme Court will hear a case that could have a major impact on how courts evaluate the constitutionality of gun control laws. The Biden administration asked for a review of the 5th Circuit Court’s decision not to deprive Zackey Rahimi of his right to own guns.
The Federal Domestic Violence Protection Order law didn’t pass until 1994, long after both years.
The reasoning behind Domestic Violence Protection Orders is straightforward. If people subject to a civil restraining order are dangerous, then prohibiting them from possessing firearms could save lives. On the other hand, if people under restraining orders are truly dangerous, they are unlikely to obey such a law. Someone willing to commit a serious assault or murder is already facing a significant prison sentence, a life sentence, or the death penalty. The additional penalties for illegally obtaining a gun or violating a protective order are unlikely to provide deterrence. Indeed, despite his protection order, Rahimi still got a gun and used it in a crime.
The problem is that with a low threshold for taking away a person’s guns, you are more likely to make mistakes and take away guns from innocent people. There is a big difference between “beyond a reasonable doubt”—where the odds are 98 percent to 2 percent—that someone is dangerous, and the “preponderance of the evidence”—possibly 50.1 percent to 49.9 percent. That will happen more often when we allow judges to make decisions without a hearing or without the accused having legal representation. A partner who is a threat might even get a judge to disarm their potential victim.
But the Biden administration asked the court to hear Rahimi’s case because they hope the court focuses on the case’s optics—a bad guy who shouldn’t have a weapon and the issue of domestic violence. But instead of calling for Rahimi’s prosecution for his many violent crimes, Biden wants the court to deviate from its strict reading of the Constitution, and free up judges to decide on a case-by-case basis whether they like the laws that legislatures have passed.
The court has faced these tough questions before. Everyone who has watched much TV knows about police having to recite the Miranda warning to suspected criminals. The police say: “You have the right to remain silent. Anything you say can be used against you in court ...”
Disarming convicted, violent criminals is one thing. But the lower standard of proof in civil matters means that mistakes are more likely to happen, with innocent people facing harm. Domestic Violence Protection Orders fail to withstand constitutional analysis and also fail to make people safer.