Texas judge is playing a dangerous game

The saying that “everything is bigger in Texas” shouldn’t apply to the firearm freedoms that domestic abusers enjoy, but that could be the reality based on a recent court ruling. Many personal protection orders sought on behalf of domestic violence victims prohibit the abuser from possessing or buying firearms, for obvious reasons. This can cause issues if the individual is required to carry a weapon during his or her employment, but the overall protection from intimate partner violence should take precedence.

The 2022 US Supreme Court decision New York State Rifle and Pistol Association, Inc., et al., v Bruen, was based around New York state licensing laws that required citizens to prove an additional “special need for self-defense” to publicly carry a firearm. Ultimately the Supreme Court held that the requirements violated the Constitution’s Second and Fourteenth Amendments.

Most states operate under the presumption of granting a person a public carry license as long as specific criteria are met; however, a handful of states allow for discretionary denial of the license, even if the criteria have been fulfilled.  In Bruen, the Supreme Court held “that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct….Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside of the Second Amendment’s ’unqualified command.’ ” Its historical research of firearm possession solidified the Court’s position that it was a right afforded to citizens prior to the Second Amendment. Basically, the application of the Constitution must be extended to circumstances that may not have been envisioned by its authors.

David Counts, a judge for the Western District of Texas, used the ruling in Bruen to justify his decision to find federal law 18 USC Section 922(g)(8) unconstitutional and in violation of the Second Amendment. This law criminalizes the possession of a firearm by an individual subject to a domestic restraining order. The defendant in Counts’ case had a Kentucky family court restraining order in effect against him, and was charged for violating the federal statute as he possessed a firearm while being subject to the restraining order. In applying the Bruen case, the judge determined that the federal law did not comply with the historical understanding of the Second Amendment, noting that the government rarely removed firearms from an abuser, or interfered in these types of family disputes.

While Counts acknowledged that a piece of paper does not stop abusers from abusing, and “states should punish abusers with the full force of the law,” he granted the defendant’s motion to dismiss the indictment.

The takeaway here is that our government has done a poor job at protecting domestic violence victims, historically, and now.  It isn’t 1791, and people aren’t walking around with muskets and flintlock pistols. Yes, more protections exist now than in the past, but shouldn’t we be striving to make the world safer for those at the most risk? These types of rulings put power, intimidation and guns back into the abuser’s hands, especially when the victim believes the court won’t keep him or her safe. Instead, what victims see is the court is playing Russian Roulette with their lives.