Federal Judge Strikes Down Ban on Possessing Guns While Subject to a Domestic Violence Restraining Order

  • Date:
  • November 16, 2022

On November 10, Judge David Counts of the Western District of Texas issued an opinion in United States v. Perez-Gallan holding unconstitutional 18 U.S.C. § 922(g)(8), the federal ban on possessing a firearm while subject to a court order that “restrains [the possessor] from harassing, stalking, or threatening an intimate partner . . . or child  . . . , or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child.” 

Judge Counts has issued multiple opinions in recent months applying Bruen, including a September decision in United States v. Quiroz striking down the federal ban on receiving a gun while under felony indictment, which Jake addressed in an earlier post.  Judge Counts also rejected challenges to the federal felon-in-possession ban in United States v. Collette (September 25) and United States v. Charles (October 3), relying in both cases on analogies to the First Amendment and the right to vote to conclude that felons may be excluded from “the people” protected by the Second Amendment.

In Perez-Gallan, the defendant was apprehended with a pistol while subject to a restraining order from a Kentucky family court and moved to dismiss the indictment, arguing that § 922(g)(8) is unconstitutional under Bruen.  According to the government’s opposition brief, the defendant’s restraining order was issued after “an arrest for assault, 4th degree (domestic violence) minor injury.” 

Judge Counts first concluded that the Second Amendment covers the conduct at issue:  possession of a firearm.  He then divided Bruen into something of a two-part inquiry.  If the regulation at issue addresses a problem that has persisted throughout history, then the test is “straightforward” and the lack of similar historical laws to address that problem is generally dispositive.  Other modern regulations that implicate more complex and recent problems, Judge Counts said, require a nuanced approach under Bruen.  The judge first observed that both § 922(g)(8) itself, and protective orders designed to guard against domestic violence, are of relatively recent vintage.   He then observed that “until the mid-1970s, government intervention—much less removing an individual’s firearms—because of domestic violence practically did not exist.”  Judge Counts analyzed the history of government intervention in domestic violence and found no evidence that states had addressed the problem by removing the offender’s weapons.  The judge also consulted pre-Bruen cases that performed historical analysis at “step one.”  He concluded that these cases found that the protective-order ban and similar domestic-violence prohibitions were not longstanding and upheld the laws only under “step two,” the means-ends scrutiny step which Bruen rejected.

Finding a lack of any “‘straightforward’ historical support for § 922(g)(8)’s proscriptions,” Judge Counts stated that he would nevertheless engage in a “more nuanced” approach.  He first evaluated, and rejected, the possibility that the Second Amendment’s protections are limited only to law-abiding citizens, which he said would lead to “absurd consequences” such as “the person who negligently (irresponsibly) forgets to set out the ‘Wet Floor’ sign after mopping los[ing] their Second Amendment rights.”  The opinion then considered the government’s argument that § 922(g)(8) can be analogized to historical surety laws.  The judge held that surety laws were not analogous because they dealt with concerns about gun misuse in a “materially different way”—by requiring the posting of a surety bond, rather than criminalizing gun possession.  Judge Counts also rejected the government’s argument that state ratifying convention debates indicated a desire to restrict the Second Amendment protection to those not considered a threat to public safety.  These proposals were not adopted, he noted, and they did not indicate that “the colonies considered domestic abusers a threat to public safety.”  Finally, Judge Counts found that colonial-era loyalty oaths were not appropriate analogues because the Second Amendment itself was designed to prevent disarmament based on political statements or affiliation.

Outside of the Second Amendment context, Judge Counts found that neither the First Amendment nor the constitutional right to vote in Section 2, Article I support excluding those subject to restraining orders from constitutional protections generally.  While noting his “concerns with reading Bruen so strictly” and with the consequences of Bruen’s reliance on party presentation, Judge Counts ultimately found “that the Government did not prove that § 922(g)(8) aligns with this Nation’s historical tradition of firearm regulation.”  Therefore, he struck down the provision as unconstitutional.

In closing, Judge Counts addressed the large number of opinions he himself has issued applying Bruen in the less than five months since that case was decided.  Judge Counts stated that, while he might “be more comfortable waiting until the courts form a consensus on interpretation post-Bruen,” he does not believe he has that luxury because constitutional challenges pause the timer on a criminal defendant’s speedy trial right.  In other words, the judge feels compelled to rule on these cases quickly to ensure that defendants are not left in limbo.

It is difficult to square the historical analysis in Perez-Gallan with Bruen’s statement that “other cases implicating unprecedented societal concerns . . .  may require a more nuanced approach.”  Judge Counts clearly identifies this distinction in his opinion, but seems to ultimately conclude that the “more nuanced approach” is identical to the historical analysis in Bruen itself.  For example, the discussion of surety statutes in Perez-Gallan is difficult to distinguish from Bruen’s analysis of those laws—Judge Counts focuses, just as the Bruen majority did, on the timing and burden of those laws to distinguish them from § 922(g)(8).  But Bruen itself is clear that it only conducts the “straightforward” analysis, not the “more nuanced approach.”  Of course, the Court doesn’t provide much guidance on what the “nuanced” approach looks like; but, presumably, that approach demands a somewhat higher level of generality. 

Judge Counts also seems too willing to conclude in Perez-Gallan that the existence of domestic violence in the Founding Era, coupled with a legislative approach different from § 922(g)(8), settle the modern constitutional question.  The problem with that conclusion is that Bruen itself identifies unprecedented societal concern as a factor that changes the analysis.  The question is not simply whether the problem that the law seeks to address is new (which here, and in most cases, it will not be), but rather whether societal concern regarding that problem is new. 

By almost any metric, it is safe to say that concern for preventing domestic violence is unprecedented; and that “concern” includes a focus on restricting those convicted of domestic-violence crimes or subject to domestic-violence restraining orders from possessing guns.  For example, by one count, 42 states and D.C. either require or authorize those who are subject to a domestic-violence restraining order obtained after notice and a hearing to be barred from possessing guns (with most states requiring those individuals be disarmed).  These laws are relatively new, and one need not look much further than the recent Bipartisan Safer Communities Act—which expanded the federal prohibition on gun possession by domestic violence misdemeanants—as evidence of this unprecedented concern.  The concern is driven by greater understanding about the role of firearms in domestic violence incidents.  For example, a 2017 CDC study showed that over 50% of female homicides for which the circumstance of death was known were committed by an intimate partner, and that over half those homicides involved a gun.  While domestic violence recidivism rates are difficult to measure accurately, a 1992 study suggested that recidivism rates for those offenders who completed domestic violence treatment programs might range from 22% (reported by the offenders themselves) to 36% (reported by their spouses).

Under Bruen, concluding that societal concern about the use of guns in domestic violence incidents is unprecedented should lead a court to apply a higher-generality analogical inquiry.  In this situation, what is unprecedented is the recognition that the availability of guns can lead to an increase in domestic violence and the conclusion that the state has a role to play in removing guns from situations where they are at a higher risk of being used to commit domestic violence.  In other words, there is an unprecedented appreciation in modern society that those who have committed domestic violence in the past (and are thus among the most likely to do so in the future) are dangerous when armed.  That should be sufficient under Bruen to analogize modern domestic-violence-related gun restrictions to Founding-Era laws based on assessments of “dangerousness.” 

Judge Counts makes it almost that far, identifying Justice Barrett’s dissent in Kanter v. Barr and her statement that “[h]istory is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns.”  Judge Counts, however, ultimately concludes that he cannot take “the leap of faith” to say that “the colonies considered domestic abusers a threat to public safety.”  It should be enough, however, that the colonies saw fit to disarm those they viewed as dangerous at the time, and that today we view those who have been convicted of domestic violence offenses or are subject to a domestic violence restraining order as dangerous.  That is the type of “more nuanced approach” that Bruen itself requires when dealing with unprecedented concerns.