Federal Law Prohibiting Individuals Subject to Domestic Violence Order from Receiving or Possessing Firearms Held Unconstitutional by U.S. District Court

United States v. Sherman Kelvin Combs

U.S. District Court for the Eastern District of Kentucky

Appeal filed on February 23, 2023

Family Court issued a Domestic Violence Order (“DVO”) against Combs after “a hearing of which he received actual notice” and “an opportunity to participate.” The DVO prohibited Combs from “harassing, stalking, or threatening an intimate partner,” and explicitly prohibited “the use, attempted use, or threatened use of physical force against such intimate partner that would reasonably be expected to cause bodily injury.” A few days after issuance of the DVO, Combs purchased a firearm, indicating on the purchase application he was not subjected to a DVO.

A federal grand jury charged Combs with being a prohibited person in possession of a firearm in violation of 18 U.S.C. § 922(g)(8), which prohibits a person who is subject to a domestic violence order from receiving or possessing a firearm. Combs filed a motion to dismiss the indictment arguing that 18 U.S.C. § 922(g)(8) was unconstitutional as it failed to meet the Second Amendment test set forth by the United States Supreme Court in New York State Rifle & Pistol Ass’n v. Bruen, 142 S.Ct. 2111 (2022).

The Bruen opinion reinforced a “text and history” approach to the Second Amendment, holding that “when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct,” and “to justify [the second amendment’s] regulation, the government…must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.”

First, the United States argued that the Supreme Court has limited the Second Amendment to law-abiding, responsible citizens. The District Court noted, however, that other courts have declined to read into the amendment a qualification that its rights only belong to law-aiding citizens, finding that a plain reading of the amendment covers all persons under the constitution. Thus, the District Court held that a plain reading of the Constitution protected Combs’ right to possess a firearm, even assuming that he was not a law-abiding, responsible citizen.

Second, the United States argued that surety statutes, which required certain individuals to post bond before carrying weapons in public, and historical laws disarming “dangerous people” provide a sufficient historical analogue to satisfy Bruen’s second amendment test. The United States argued that both surety laws and U.S.C. § 922(g)(8) attempt to prevent known allegedly reckless individuals from using a firearm in furtherance of a crime, and, therefore, have a similar social purpose. Combs argued that surety laws were insufficiently analogous the federal law, and the District Court agreed. The District Court held that U.S.C. § 922(g)(8)’s complete deprivation of an individual’s ability to possess a firearm was materially different than a sureties’ possible disarmament, if violated, and was therefore unconstitutional.

Digested by: Emily T. Cecconi

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