Fifth Circuit: Ban on Second
Amendment Protected Rights by Civil
Restraining Order is Unconstitutional

By Dean Weingarten. Mar 29, 2023

In the Fifth Circuit, the entire Court has ruled, en banc, that rights protected by the Second Amendment may not be infringed by mere civil restraining orders. The unconstitutional infringement was placed into law by the infamous Lautenberg amendment in 1996. Hundreds of thousands of lives have been turned upside down and ruined by this infamous and unjust law.

In the opinion published by the Fifth Circuit Court of Appeals, Circuit Judge James C. Ho writes a particularly well argued and presented concurrence. The concurrence is worth reading. It is quoted below, without the footnotes:

James C. Ho, Circuit Judge, concurring:The right to keep and bear arms has long been recognized as a fundamental civil right. See, e.g., Johnson v. Eisentrager, 339 U.S. 763, 784 (1950) (describing the First, Second, Fourth, Fifth, and Sixth Amendments as the “civil-rights Amendments”); Konigsberg v. State Bar of Cal., 366 U.S. 36, 49–50 n.10 (1961). Blackstone saw it as essential to “‘the natural right’”of Englishmen to “‘self-preservation and defence. ”District of Columbia v. Heller, 554 U.S. 570, 593–94 (2008)(quoting 1 William Blackstone, Commentaries on the Laws of England139–40 (1765)).

But the Second Amendment has too often been denigrated as “a second-class right.”McDonald v. City of Chicago, 561 U.S. 742, 780 (2010). In response, the Supreme Court has called on judges to be more faithful guardians of the text and original meaning of the Second Amendment. See N.Y. State Rifle & Pistol Association, Inc. v. Bruen, 142 S. Ct. 2111 (2022). Our court today dutifully follows the framework recently set forth in N.Y. State Rifle. It recognizes the absence of relevant historical analogues required to support the Government’s position in this case. I am pleased to concur.

I write separately to point out that our Founders firmly believed in the fundamental role of government in protecting citizens against violence,as well as the individual right to keep and bear arms—and that these two principles are not inconsistent but entirely compatible with one another. [...] .....


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