Family Court Restraining Orders and the Right to Bear Arms

Family Court Restraining Orders and the Right to Bear Arms

By M. J. Goodwin

Many divorce attorneys routinely add mutual restraining orders to their legal documents. While this may seem second nature, it should be viewed with caution in that imposing a restraining order may have Second Amendment implications. This blog seeks to identify the issue and possible solutions.

The Second Amendment to the United States Constitution provides “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” This was ratified in 1791 and is still good law. South Carolina has identical language in Article 1 of the South Carolina Constitution, Declaration of Rights.

This right is not absolute. There are many classes of individuals who cannot own, transport or possess firearms. Section 18 USC 922(g)(8) addresses court orders that will impact gun ownership. In addition to felons, fugitives, drug addicts, and mental defectives, this section of law prohibits individuals from owning guns who are subject to an order that “restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury;”

Pay careful attention to the italicized language. A mutual restraining order, which seems benign enough on its face, typically prohibits both parties from assaulting, molesting, disturbing or otherwise harming one another. This language arguably engages the italicized language above and arguably makes gun ownership for the persons subject to that mutual restraining order illegal.

My advice to clients is two fold. Don’t ask for a restraining order as a matter of course. If you don’t need an order, there is no need to have the government exercise control over that area of your life. If you do feel the need for some protection from your spouse or intimate partner, but do not want yourself or your spouse to lose your right to bear arms, consider a “No Adverse Contact Order.” Such an order, carefully drafted, will prohibit adverse contact (ie: harassment, rude behavior, etc.) but will specifically not have Second Amendment implications.

A No Adverse Contact Order is a good option for hunters, target shooting enthusiasts, gun owners and anyone who is concerned about keeping their Second Amendment rights while protecting their Family Court interests. Careful drafting of Family Court documents can make all the difference here. Contempt remedies still apply, as they would with a more traditional Restraining Order.

 

M. J. Goodwin is a vocal Second Amendment advocate.   She can be contacted at: mj@mjgoodwin.com Email inquiries are typically answered within twelve hours.

PLEASE NOTE: THIS INFORMATION DOES NOT APPLY TO ORDERS OF PROTECTION. INDIVIDUALS WHO HAVE BEEN CONVICTED OF DISQUALIFYING CRIMES, INCLUDING CRIMINAL DOMESTIC VIOLENCE, WHO ARE ILLEGALLY IN THE UNITED STATES, WHO ARE DRUG ADDICTS, FUGITIVES FROM JUSTICE OR OTHERWISE LEGALLY PROHIBITED FROM OWNING FIREARMS WILL NOT BENEFIT FROM A NO ADVERSE CONTACT ORDER.

AS WITH ALL CASES, GET SPECIFIC LEGAL ADVICE FROM A LICENSED ATTORNEY ABOUT YOUR PARTICULAR SITUATION. THIS BLOG IS NOT INTENDED AS SPECIFIC LEGAL ADVICE FOR ANY SITUATION.

 

 

 

 

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