The Trace: Bruen arms domestic abusers

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The Trace is treated by many as an unbiased source of journalism. They’re not.

What’s more, they don’t pretend to be. That’s something I can at least respect. It means people can look at them and know they’re going to see everything painted in a generally anti-gun light.


But that doesn’t mean they get to misrepresent facts, which is what they do in a recent piece. There, they basically try to argue that the Bruen decision endangers women.

On February 2, a panel of the Fifth Circuit Court of Appeals in Texas overturned a federal ban on gun possession by people subject to domestic violence restraining orders. The ruling, which voided part of a nearly three-decades-old landmark policy, is the latest example of how the Supreme Court’s decision in New York State Rifle and Pistol Association v. Bruen last June is reshaping American gun laws.

The case, U.S. v. Rahimi, concerns an Arlington, Texas, man who was a suspect in several shootings when police found guns in his home and discovered he was under a civil protective order for the alleged assault of his ex-girlfriend. The order expressly prohibited him from having firearms, and he was indicted for violating the federal domestic violence gun ban.

The three-judge panel, all Republican appointees, applied Bruen’s new framework for deciding Second Amendment cases: In order for a gun law to be constitutional, it must have an analog that is well-established in American history. Because domestic violence wasn’t recognized as a crime in the 18th and 19th centuries, the Fifth Circuit judges vacated Rahimi’s conviction and declared the ban unconstitutional. They called it an “outlier that our ancestors would never have accepted.”

The ruling affects Texas, Mississippi, and Louisiana, which the Fifth Circuit covers. Elsewhere, the law stands. The centerpiece of the federal law, the 1996 Lautenberg Amendment, still prohibits gun possession by those convicted of misdemeanor domestic violence.


And that last part is important.

You see, those individuals have been convicted of domestic abuse. Restraining orders, however, are quite different. Besides the fact that they don’t actually protect anyone–it’s a piece of paper, after all–there are also very different standards applied when deciding to issue one versus deciding guilt or innocence of a crime.

The Trace should understand this basic difference.

Whether you agree with the Lautenberg Amendment or not, at least in that case there is some degree of due process involved. You have an opportunity for a trial by a jury of your peers and can face your accuser. If you lose your right to keep and bear arms, at least you lost it with due process.

Restraining orders are very different. They’re often issued without the individual in question even being aware of the proceeding. As such, there’s no due process involved.

Normally, this isn’t a massive issue with regard to people’s rights because they don’t necessarily lose their rights. They’re free to go about their business just so long as they comply with the court order. Yet someone losing their Second Amendment rights is where there’s a massive problem, which is what the above case is about.

Further, an untold number of such orders are granted every year simply as a tool for getting leverage in divorce proceedings. Judges grant them based on little to no evidence, partly out of concern that if they don’t and something happens, it will reflect badly on them.


So, with that in mind, why would we deny anyone their right to keep and bear arms based on such a flimsy thing as a restraining order being granted? It makes no sense.

But leave it to The Trace to think this is something devastating. It’s especially interesting that The Trace seems to be mangling the Bruen decision in an effort to paint it as a ruling that will arm domestic abusers, noting that domestic violence wasn’t a crime at the time of the nation’s founding.

That may be true, but that’s not how the Bruen decision reads.

It’s not that a law cannot exist if it didn’t exist at that time. It means a gun control law cannot exist constitutionally unless it is similar to a law of the time. The idea that some people forfeit their rights isn’t new. The argument then needs to be whether the Lautenberg Amendment is similar enough to those older laws to continue existing.

But that’s more nuance than The Trace typically engages in.

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