Federal Court Affirms People With Restraining Orders Still Have Gun Rights

P. Gardner Goldsmith | November 15, 2022
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Judge David Counts, of the U.S. Federal District Court of Western Texas, Pecos Division, in a monumental ruling not only found in favor of the right to keep and bear arms, he did so with artistry and an eye toward the corrosive power of political normalcy bias.

In the November 10 decision in the case of “United States of America v Litsson Antonio Perez,” Counts ruled that even if government agents issue a so-called “restraining order” on a person, he or she retains his or her natural right to keep and bear arms.

It’s a big issue, involving many widespread, long-standing, erroneous, big-government assumptions, and the circumstances of the case deserve attention.

First, Counts lays out the details.

“The facts are simple. Defendant Litsson Antonio Perez-Gallan was driving an 18-wheeler near the Mexico-United States border in Presidio, Texas when he entered a border patrol checkpoint. After Defendant was directed to a secondary inspection area, he was asked whether he was armed. Defendant said yes; he had a pistol with him. Defendant consented to a search, and border patrol agents found the pistol in Defendant’s backpack.”

Here, we pause, because the overall “firearms” oriented focus of this matter can make it easy to overlook very important points that already require addressing.

Even if one were to accept the “feds handle the borders, even during periods of non-War” fallacy, this federal “immigration checkpoint” was not at the Texas border. It was miles inside the border. For years, the feds illegitimately have claimed the arbitrary, Stasi-like, power to post such “checkpoints” deep within state borders and claimed the power to pull over, question, and detain anyone.

Here - and anywhere - the feds do it, this initial act of forcing a driver to stop and answer invasive questions breaches the Fourth Amendment, an oft-neglected Amendment that (even if one disregards the lack of federal jurisdiction over immigration noted above) only allows police searches after a judge has issued a warrant specifying the person to be searched, the item or items sought, and the judge’s “probable cause” for such a search.

And we haven’t even gotten to the firearms-related aspect of this case. Counts continues:

“Agents also found a Kentucky state court order in Defendant’s wallet (“Court Order”). The Court Order outlined Defendant’s conditions of release stemming from his May 2022 arrest for assault. The Government later discovered a separate restraining order against Defendant from a Kentucky family court (“Restraining Order”). Defendant was indicted in June 2022 for one count under 18 U.S.C. § 922(g)(8), which makes it a crime to possess a firearm while subject to a court order.”

Judge Counts tore that to shreds, first, referring to the Supreme Court’s June 23 “NY State Rifle and Pistol Assn Inc v Bruen” decision in favor of concealed carry outside the home:

“Bruen’s first step asks a strictly textual question with only one answer: the Second Amendment’s plain text covers possession of a firearm. Because the Constitution presumptively protects possessing a firearm, § 922(g)(8)’s (the US statute in question) constitutionality hinges on whether regulations prohibiting those subject to a protective order from possessing a firearm align with the Nation’s historical tradition of firearm regulation.”

And, of course, since there is no such thing as “firearm regulation” in the history of the founders, but only the right to keep and bear arms, and only the concept of “well-regulated militia” meaning a “well-trained” body of rights-retaining people, the historical tradition comports with respect for the individual natural right to keep and bear arms.

Simply put, if a person is not convicted of a crime and jailed, if a person is deemed safe enough to be outside a prison, then that person is supposed to be able to exercise his or her natural rights, including the right to self-defense.

If a person is too dangerous to be able to “legally” own a firearm, what’s he or she doing out of prison?

This is a point on which Counts lightly touches as he explores the difference between the way contemporary governments handle “misdemeanor assault” convictions and the way people of the Founding era handled “assault” – or even defined or prosecuted it.

“Domestic abusers are not new. But until the mid-1970s, government intervention—much less removing an individual’s firearms—because of domestic violence practically did not exist.”

And this does not even explore the problematic matter of FEDERALIZING the matter of domestic violence accusation, something that, constitutionally, is supposed to be a state and local matter.

Related: (Not So) Shocking Study: Gun Ownership Leads to Lower Burglary Rates | MRCTV

Counts draws valuable lessons from Colonial America, noting that in the 17th Century historical record, New England Puritans applied punishments of whipping and fines for those found guilty of domestic abuse, but confiscation of firearms for people outside of jail was not in the picture. Then, he moves into more recent, Post-Revolution, history:

“(O)ne prominent scholar examined statutory materials and articles from major newspapers across eight states in the American West from 1860 to 1930. And from that historical examination, the usual mode of punishment for domestic violence was a fine, with the most common being between $50–200. Some offenders—although it was far less common—could receive a whipping or jail time. Consider the short period in the 1870s when the California penal code allowed an abuser to be punished with “not less than twenty-one lashes on the bare back.’ Yet even in the late nineteenth century, many states still adhered to the belief that without serious violence, the government should not interfere in familial affairs.”

And, with serious violence, would come jail. Outside of jail? Rights.

It’s pretty simple, yet many, if not most, Americans seem to operate under the false impression that the government can see a resident released from prison -- or convicted of a crime but avoiding prison -- and then apply “legal limitations” to that person’s peaceful freedom.

And even if federal or state politicians want to play-act that their “gun statutes” prohibiting people from legally carrying firearms, history and logic show us that people with criminal intent don’t care about the statutes. They already intend to commit criminal acts. That’s the point.

Just like “restraining orders” have not stopped people with criminal intent from breaching said “orders” on those pieces of government paper (recall the tragic 2017 death of NJ resident, Carol Bowne, murdered by her ex-husband while she suffered the injustice of having to wait to acquire a firearm – and while he had a “protective restraining order” against him seeing her), people with criminal intent don’t abide by prohibitions against them acquiring firearms.

The fundamental, historically powerful facts about the right to self-defense always stand. The mutating, morphing, arbitrary standards of politicians merely hide the reality that every human being has a right to keep and bear arms. If people want to have “government” involved with “protecting” them, they ought to be aware that government only exists by forcing people to pay for it, and that, once government starts ruling over them, generation after generation of abusive and arrogant politicians will try to undercut their rights.

This case from Texas and Judge Counts’ ruling remind us that, even when a member of society might appear to have done something wrong, if he or she is outside of jail, that person retains all the rights we do.

At least, that’s how it’s supposed to work.

Related: Biden, Pelosi Peddle False Info Promoting the 1994 'Assault Weapons Ban' | MRCTV