Domestic Violence Firearm Ban Before the Fifth Circuit

The federal government has asked a Fifth Circuit panel to rule it may legally disarm citizens under domestic violence protective orders without any explicit finding that the person poses a credible threat of violence. Wait, did I read that correctly? Before we can even discuss the facts and history of the case, we have to ask ourselves if society and the judicial system have been dumbed down so far that we can’t see problems with this on its face. The first hurdle that the judicial system must be intellectually accountable for is how a domestic violence protective order can be issued against a person who has not been found to pose a violent threat in the first place. Since this makes zero sense in the universe we occupy, I’ll share an example of how the judicial system has intentionally perverted definitions to suit a more sinister agenda. 

California family court law allows judges to issue an ex parte domestic violence restraining order against an individual for what the state refers to as destroying “the mental or emotional calm of the other party.” Ex parte means that one party asks the court for an order without notice to the other or the opportunity for that party to respond. Ex parte applications are meant for use in emergencies without enough time to hear a regularly noticed motion. I am aware of a case in which a husband spoke with his wife regarding the family possibly relocating to a different state. The wife refused to entertain the conversation, and over the next year, her husband’s periodic attempts to introduce the subject were used to establish the destruction of her “mental or emotional calm.” A domestic violence restraining order was issued, and the husband lost his gun rights. This intentionality perverts the definition of “violence.”

While the Fifth Circuit case does not deal with civil orders like those in family court, the same principle applies. It is irresponsible and intellectually devoid for a judge to issue a domestic violence restraining order without an explicit finding that the person poses a credible threat of violence. The second issue is the gaping outright admission from the government that it wants to disarm citizens and doesn’t care if there exists a finding to justify it. The case at hand began in May 2022 when Litsson Antonio Perez-Gallan was stopped by border patrol agents at a checkpoint in Texas while carrying a firearm. Having a restraining order against him due to charges in Kentucky of assaulting his wife, he was indicted for violating the Lautenberg Amendment that prohibits individuals under domestic violence protective orders from possessing firearms under federal law. A Texas federal judge, however, threw out the firearm case against Perez-Gallan, finding the Lautenberg Amendment in violation of the Second Amendment. That’s when the government appealed to the Fifth Circuit. The Lautenberg Amendment applies to protective orders where the judge finds a person poses a credible threat and those where the order simply prohibits the use of or threats of violence against the protected party, with the distinction aptly argued by Shane O’Neal, Perez-Gallan's attorney. O’Neal offered a hypothetical yet real scenario in which individuals have voluntarily agreed to a protective order.

"The judge saying, 'You know, Mr. Perez, I'm thinking about issuing a protective order that prohibits you from using, attempting to use or threatening physical force against your spouse. Do you have a problem with that?’ And, of course, someone in Mr. Perez's shoes is going to say, 'No, because all you're directing me to do is follow the law,’” O'Neal said.

While the appeal was pending in 2024, the Supreme Court ruled in United States v. Rahimi that disarming accused abusers isn't facially unconstitutional, however, the ruling was limited to individuals who have been found to pose a "credible threat" of violence. Ultimately, the Supreme Court stated specifically that it would not rule on the constitutionality of disarming those who were prohibited from using threats or violence against a protected party, which is the kind of protective order Perez-Gallan was under. That issue is now before the Fifth Circuit panel. During oral arguments on December 5, Assistant U.S. Attorney Stephanie Cagniart told judges that the Supreme Court's reasoning in Rahimi applies to all domestic violence protective orders, arguing that the issuance of a protective order inherently implies the finding of a credible threat, even if the judge doesn't make an explicit credible threat finding,

"In order for a court to enter an injunction ... to prohibit the use of physical force sufficient to harm another person, it is a legal requirement that the court first determine that a real threat of danger or injury actually exists," Cagniart said.

This should be the legal requirement, but in practice, it’s not. We already know the use of physical violence is not always the standard by which a protective order is issued, even though that is the only scenario in which it makes sense other than being able to establish that credible threats of violence have been made. Further, how can Cagniart misrepresent the Supreme Court’s ruling, treating it like both scenarios are the same when the Justices limited the ruling to only one form of protective order and specified that they were not ruling on the other? The panel set to decide this case consists of Reagan-appointed U.S. Circuit Judge Jerry Smith, Clinton-appointed U.S. Circuit Judge Carl Stewart, and Trump-appointed U.S. Circuit Judge Stuart Duncan. The absolute truth of the matter is that the Constitution gives no quarter to infringement of American gun rights, full stop. There is no if, and, or but in the Second Amendment, and compromising with the left is an exercise in fruitless futility. It may have felt like a reasonable concession to agree to disarm felons with The Gun Control Act of 1968, and if someone had warned what one concession might lead to, they would undoubtedly have been accused of conjuring a logical fallacy, yet so many years later, we have seen the mile taken from the inch, and we now know the slippery slope is very real.

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