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Protective Order Not Enforced, But In Force? No Gun for You!

By William Peacock, Esq. on October 16, 2012 | Last updated on March 21, 2019

Court cases are often decided on the narrowest of issues. This case, however, was decided on the narrowest of letters: an "i" versus an "e".

Jimmy had a gun. He was also the subject of a protective order, though it was not being enforced. The result? A conditional guilty plea to 18 U.S.C. § 922(g), which prohibits gun possession while a domestic violence protective order is in force.

Before the court could jump in to linguistic semantics, they first addressed the argument that denying Elkins his right to bear arms was unconstitutional under Heller. Though the Fourth Circuit has not yet decided whether Heller's Second Amendment protections extend to those outside the home or to perpetrators of domestic violence, they assumed for the purposes of argument that it did, both in this case and in similar cases that have arisen since Heller.

The Court quickly dispensed with the constitutional analysis, as the prior decisions already established that the law generally passes muster under intermediate scrutiny due to the state interest in preventing domestic gun violence.

In order for Elkins to succeed on an "as applied" to him basis, he'd have to demonstrate that his case was different from ordinary challenges that had already been decided. Otherwise, precedent would affirm his conviction and relegates the case to the round file.

Enter the distinction with a difference.

Elkins argued that applying 922(g) to him was unconstitutional because the interest in disarming domestic violence perpetrators does not fit in his case, as the protective order was not enforced. After the order was obtained, he resumed a relationship with the protectee. Under the language of recent case law, the order must be "in force" against the gun owner.

The Court's three word response? "We are unpersuaded."

Of course, courts rarely are that succinct. First of all, the language of the statute does not mention "in force." Only the case cited uses that language. The statute states that the restrictions apply to a person "who is subject to" a protective order. A person is subject to a protective order for as long as it is issued by a court. If someone wishes to have the order lifted, he can always fight the order in court. Whether there was a mistake in issuing the order, the restricted party poses no credible threat to the victim, or the relationship has healed is irrelevant to whether or not the order technically exists.

In other words, the order can be "in force," even if it's not "enforced".

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