Dr. John Lott has a new piece at The Federalist on a Supreme Court decision on Monday.

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The lower the threshold for taking away a person’s guns, the more likely it is that guns will be taken away from innocent people.

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The Supreme Court has now received all the briefs for a case it will hear on Nov. 7 that could seriously affect how courts evaluate the constitutionality of gun-control laws. The Biden administration asked for a review of the Fifth Circuit Court’s decision not to deprive Zackey Rahimi of his right to own guns. 

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Rahimi is not a sympathetic character. He is a drug dealer with a long, violent criminal record. But instead of prosecuting Rahimi for his violent crimes or imposing sufficient bail to keep him in jail, prosecutors merely obtained a domestic violence protection order based on a 2020 assault against his girlfriend. The protection order was imposed without a hearing, and because he was not being criminally prosecuted, Rahimi was not provided with a lawyer.

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The question before the court is: What is the standard of evidence needed to strip someone of their constitutional right to keep and bear arms? People lose their right to a gun when convicted of felonies and some violent misdemeanors. But should they lose that right after a mere noncriminal, civil decision — in the absence of a public hearing and a lawyer? 

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In last year’s landmark Bruen decision, the Supreme Court set a template for how to evaluate whether a gun-control law is constitutional. The opinion, written by Justice Clarence Thomas, argued that one must first look at the wording of the Second Amendment. If that isn’t conclusive, one would next consider the legislative debate surrounding the passage of the amendment. Finally, one could examine whether similar laws were in effect in either 1791, when the Second Amendment was adopted, or in 1868, when the 14th Amendment applied the Bill of Rights to the states. The Violence Against Women Act didn’t pass until 1994, well over a century after both.

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The administration wants Rahimi to lose this case so the court will deviate from its strict reading of the Constitution. That way, the outcome will set a precedent for lower court judges to decide on a case-by-case basis whether they like the laws legislatures have passed.

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The reasoning behind protection orders is straightforward. If people subject to a civil restraining order are dangerous, prohibiting them from possessing firearms could save lives. On the other hand, if people under restraining orders are truly dangerous, are they really likely to obey such a law? Someone willing to commit a serious assault or murder is already facing a significant prison sentence, a life sentence, or the death penalty. The additional penalties for illegally obtaining a gun or violating a protective order are unlikely to provide deterrence. Indeed, despite his protection order, Rahimi still obtained a gun and used it in a crime. 

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The problem is that, with a low threshold for taking away a person’s guns, the possibility of making a mistake and taking away guns from innocent people is more likely. And it does not consider potential loopholes. For example, a partner who is a threat could get a judge to disarm his potential victim. Even peer-reviewed academic research shows that domestic violence protection orders do not generally affect or reduce the number of domestic gun murders or domestic murders. 

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Mistakes will happen, and law-abiding people will have their guns taken away. But there is a big difference between “beyond a reasonable doubt” — where the odds are 98 percent to 2 percent — that someone is dangerous and the “preponderance of the evidence” — possibly 50.1 percent to 49.9 percent.

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Mistakes will also happen more often in civil cases when judges make decisions without a hearing or legal representation for the accused.

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Disarming convicted, violent criminals is one thing. But setting a lower standard of proof in civil matters means that mistakes are more likely to happen and that more innocent people will be harmed. Domestic violence protection orders fail to withstand constitutional analysis and also fail to uphold public safety.

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John R. Lott, Jr., “Feds Want SCOTUS To Let Judges Strip Gun Rights, Even When There’s Been No Crime,” The Federalist, October 20, 2023.