An interesting case out of Texas

[Aguila Blanca]

https://www.ammoland.com/2022/11/la...-is-unconstitutional/?ct=t(RSS_EMAIL_CAMPAIGN

It's a federal case, so this is going to bear watching. This is only a District court decision, so it doesn't establish binding precedent, even in that jurisdiction, but if it gets appealed and the circuit court upholds the decision, a key element of "red flag" laws could be an endangered species.

I haven't found a link to a PDF of the actual decision yet, but here's a link to what purports to be a copy of the actual text of the decision:
https://www.leagle.com/decision/infdco20221114c31

 

[Aguila Blanca]

I finally tracked down a link to the actual decision, as a PDF:
https://www.govinfo.gov/content/pkg...r-00427/pdf/USCOURTS-txwd-4_22-cr-00427-0.pdf

I've been too involved in trying to find an authentic copy of the decision to have read the entire document in detail, but I like what I have seen so far. Off the top of my head, I would guess that the judge is generally in favor of the RKBA. This was right at the outset of the decision:

Before Bruen, the Second Amendment looked like an abandoned cabin in the woods. A knot of vines, weeds, and roots, left unkempt for decades, crawling up the cabin’s sides as if pulling it under the earth. Firearm regulations are that overgrowth. Starting with the Federal Firearms Act in 1938, laws were passed with little—if any—consideration given to their constitutionality. That is, until the Supreme Court intervened in Bruen.

No longer can lower courts account for public policy interests, historical analysis being the only tool. But after growing unchecked for almost 100 years, today’s tangle of gun
laws has left lower courts with a gordian knot. And after engaging with this Nation’s tradition of firearm regulations several times already, the Court’s unanswered question is whether Bruen demands lower courts manicure the Second Amendment’s landscape by scalpel or chainsaw.

And then we get to the conclusion:

CONCLUSION
How strictly or flexibly a court reads Bruen impacts its conclusion. Bruen’s mandate is that a gun regulation’s constitutionality hinge solely on the historical inquiry. According to Bruen, that can be this Court’s only consideration. The Court concedes, therefore, that a court reading Bruen strictly could have arguably stopped after Section IV of this Opinion.

That said, this Court embraces Bruen’s charge. Thus, after sifting through the history above, this Court finds that the Government did not prove that §922(g)(8) aligns with this Nation’s historical tradition of firearm regulation and declines the Government’s invitation to insert its own public policy concerns rather than following Bruen. As a result, the Court holds that §922(g)(8) is unconstitutional under Bruen’s framework.

 

[Aguila Blanca]

He did it. He actually went there.

From page 18:

Taking Justice Stevens’ argument further, defining “the people” as law-abiding, responsible citizens would lead to absurd results. Surely the Government doesn’t believe that someone ticketed for speeding—thus, not abiding by the law—should lose their Second Amendment rights.

He used the speeding ticket analogy! PERFECT! The quintessential example of where the proverbial slippery slope can lead.

 

[Doc Intrepid]

Thanks for posting. Red Flag Laws have been posited as "active antidotes" to many scenarios, not the least of which have been school shootings where the shooter was previously recognized as posing potential harm.

In the state of Washington, however, their use has expanded broadly. An enthusiastic percentage of King County seeks to expand their utility still further:
https://www.seattletimes.com/opinion/editorials/washingtons-red-flag-law-is-only-the-first-step/

Some rational jurisprudence focusing light on 2A constitutionality of these laws would be a welcome addition to the conversation occurring on the part of anti-gun activists.

 

[44 AMP]

Doc, can you summarize, the Seattle Times either wants me to disable an ad blocker or subscribe to read their crap...

 

[Tom Servo]

Here's an archived link to the article. It seems the authors aren't happy with the raft of gun controls their state has passed recently, and they want more. They're also miffed because they feel the state hasn't issued as many "extreme risk protection orders" as they'd like.

Thing is, those risk-protection orders deprive enumerated rights with only a thin veneer of due process. And that's what the lawsuit at hand is challenging. The Lautenberg amendment is unique in that it removes a right without criminal conviction.

If this makes its way up the court system, it's going to run into Bruen, and it's unlikely the law passes muster.

 

[44 AMP]

The Lautenberg amendment is unique in that it removes a right without criminal conviction.

I don't think that it quite right. The Lautenberg amendment requires a conviction, but it can be a MISDEMEANOR domestic violence conviction, it does not require a FELONY conviction.

Lautenberg is unique in that, and in other ways. Not requiring a Felony conviction before stripping Constitutional rights, not exempting military or police on duty, and being ex post facto (retroactive).

I don't know why this law hasn't been challenged, and challenged repeatedly until repealed, but, it's still on the books....

 

[Aguila Blanca]

The Lautenberg amendment is unique in that it removes a right without criminal conviction.

I don't think that it quite right. The Lautenberg amendment requires a conviction, but it can be a MISDEMEANOR domestic violence conviction, it does not require a FELONY conviction.

Lautenberg is unique also in that it retroactively applies a punishment/penalty that may not have applied at the time of the act, and may not have applied at the time of the conviction.

There are reported to be large numbers of people who many years ago accepted a plea bargain to plead guilty to a misdemeanor charge of domestic violence when that was viewed as the simple way to put the matter behind everyone and move on.

Then along came Lautenberg, and people who had entered those pleas years before and who had legally owned firearms for years following their convictions suddenly woke up one morning as prohibited persons. Surrendering a basic constitutional right for the rest of their lives was probably not part of the equation when they accepted those plea bargains.

 

[dogtown tom]

44 AMP ....I don't know why this law hasn't been challenged, and challenged repeatedly until repealed, but, it's still on the books....

It has been challenged repeatedly and upheld repeatedly.
https://en.wikipedia.org/wiki/Domestic_Violence_Offender_Gun_Ban#Court_history