Persons subject to civil domestic violence restraining orders are prohibited from possessing firearms or ammunition under federal law. A lower court held that this temporary ban violated the Second Amendment, applying the Supreme Court’s “text, history, and tradition” test adopted in 2022 in New York State Rifle and Pistol Association v. Bruen.
As expected, the lower court’s decision generated much controversy. When the Supreme Court decided to hear the case on appeal, some claimed that the conservative Supreme Court justices would be more concerned about protecting guns than protecting women.
To no one’s surprise, except those false critics, the Supreme Court last June issued a decision in United States v. Rahimi which overturned the lower court’s decision and upheld the federal prohibition. Later, we will discuss how this decision is likely to interact with North Carolina law.
Federal law creates nine categories of persons who cannot possess firearms or ammunition. One category is any person subject to a domestic violence restraining order based on a judicial finding that such person represents a credible threat of violence to a domestic partner or partner’s child.
At issue in Rahimi was whether the federal ban on firearms possession for such persons fits within our nation’s historical tradition of firearm regulation. The Court concluded that the Second Amendment is not infringed by laws that temporarily disarm individuals who pose a credible threat to the physical safety of others, at least after a judicial finding of such threat. (Rahimi was found to pose a threat.) The Court recognized a long historical tradition of restricting dangerous persons from accessing firearms.
Rahimi is a fairly narrow decision. It does not validate all restraining order statutes. Another part of the federal prohibition applies to persons subject to domestic violence restraining orders without any individualized findings of dangerousness, but simply prohibits the use or threatened use of violence in the future. The Supreme Court specifically declined to decide whether that part of the law is constitutional, but it likely is not.
Other restraining orders may require persons to relinquish firearms based on harassment or emotional distress. Scholars and judges have expressed alarm that civil protective orders are too often misused as a tactical device in divorce proceedings — and issued without any actual threat of danger. Such orders, issued without any finding of a credible threat to physical safety, remain challengeable under the Second Amendment. Rahimi also does not address the due-process requirements necessary to impose domestic-violence restraining orders.
There are two types of civil restraining orders available under North Carolina law related to domestic violence.
The first is a domestic violence protective order under Chapter 50B of the North Carolina General Statutes. A DVPO is available to any resident of North Carolina provided they meet two requirements.
First, the person seeking the DVPO must have a personal relationship with the person who would be subject to the protective order. “Personal relationship” is defined by statute and case law to include spouses, co-parents, children, household members, and dating partners. Second, the plaintiff must allege an act of domestic violence which includes physical violence, sexual violence, or continued harassment that causes substantial emotional distress. Upon proving both elements by preponderance of the evidence, a person can obtain a DVPO for a period of one year, which can be renewed for an unlimited number of two-year extensions with a showing of good cause.
The second type of civil restraining order is a civil no-contact order under Chapter 50C of the North Carolina General Statutes. It is available to address a pattern of harassment by a person with whom the one seeking the order does not have a “personal relationship.” While both types of orders restrain and prevent a person from having contact with the person seeking the order, they are mutually exclusive in their application and differ in many ways.
One of the stark differences between a DVPO and a 50C is that while the latter does not address or permit the removal of firearms, a person subject to a DVPO can be ordered to surrender all firearms, ammunition, and related permits under North Carolina General Statute § 50B-3.1. However, in order to activate the surrender of firearms, the court must make certain findings of fact as part of the DVPO. The judge must find that the person (1) used or threatened to use a deadly weapon, (2) threatened to seriously injury or kill, (3) threatened to commit suicide, or (4) inflicted serious injury to the partner or partner’s child.
The North Carolina Court of Appeals has twice addressed the application of § 50B-3.1 within the last decade — the published opinion in Stancill v. Stancill and the unpublished opinion in Markaj v. Markaj. In both instances, the court invalidated the requirement that the persons surrender their firearms after DVPOs were entered against them. Neither of the DVPOs contained findings of fact related to any of the four provisions under the statute. As such, the removal of firearms from the individuals were not authorized by law and the firearm provisions were struck from the DVPOs, which did remain in place in both instances.
Given that the four statutory grounds for surrender of firearms relate to “demonstrated threats of physical violence” and require findings that the individual “represents a credible threat” against the person seeking the protective order, it appears that § 50B-3.1 would survive challenge in accordance with Rahimi’s reasoning. Thus, North Carolina law regarding the surrender and removal of firearms from persons subject to domestic violence restraining orders is likely constitutional.