Federal Law Banning Gun
Possession because of Restraining Order is
Unconstitutional under the Second Amendment

By Dean Weingarten. Nov 29, 2022

Federal District Judge David Counts in the Western District of Texas has ruled the controversial federal law banning gun possession by a person who has been served with a restraining order for domestic violence, is unconstitutional under the Second Amendment.

The statute in question is 18 U.S.C. § 922(g)(8). This statute makes it a crime to possess a firearm if the person is subject to a court issued restraining order about domestic violence. The maximum term of imprisonment for violation of the statute is up to 10 years in prison. The actual wording of 18 U.S.C. §922(g)(8) is this:

(g) It shall be unlawful for any person-

(8) who is subject to a court order that-

(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;

(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and

(C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury;

The person subject to a restraining order alone has not been convicted of any crime.

Restraining orders do not have the protections afforded suspects in an actual trial. Restraining orders have historically been obtained from judges with little effort. .....