Page 23 - OAD 2023 First Monday Journal

and found a .45 caliber pistol, a .308 caliber rifle, and a copy of the protective order against

the Respondent.

Respondent was indicted in federal court and charged with one count of possessing

a firearm while under a protective order in violation of 18 USC §922(g)(8). He challenged the

constitutionality of the statute, but his motion was denied. He entered a guilty plea and was
sentenced to 73 months in federal prison.

On appeal of his conviction, Respondent argued, among other things, that section

922(g)(8) violated the Second Amendment. The Fifth Circuit affirmed his conviction, as his
constitutional challenge was foreclosed by the circuit’s binding precedent. See United States

v. McGinnis, 956 F.3d 747 (5 Cir, 2020). While the Respondent’s petition for rehearing en
th
banc was pending, the Supreme Court decided NYSRPA v. Bruen, 142 S.Ct. 2111 (2022). The

Fifth Circuit withdrew its opinion and reversed the lower court decision.

Conducting a de novo review the Fifth Circuit found the following:
• Respondent was among the citizens entitled to the protections of the Second Amend-

ment and rejected the Government’s argument that the protections apply only to law

abiding, responsible citizens.
• The text of the Second Amendment protected Respondent’s conduct, namely the

possession of a pistol and a rifle.

• The government failed to meet its burden of demonstrating that the statute was

consistent with historical traditions of firearms regulation.

• The aim of the statute to curb violence against individuals is narrower than the
historical analogues of dangerousness provisions that were generally designed

as public safety measures to combat rioting and armed rebellion.

• Going-armed provisions are not relevantly similar to the federal statute and are
untethered to any tradition of firearms regulation.

• The comparability of historical surety laws, which provided that an individual

who could prove that he had just cause to fear that another would injure him

or destroy his property could demand surety of the peace against such person.

Although somewhat similar, surety laws did not prohibit the possession of
weapons and allowed for conditional, partial restrictions.

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