June 23, 2022

The Second Amendment’s ‘Boyfriend Loophole’?

Judging who’s fit to exercise their constitutional rights is far more difficult than it seems.

Let’s say you’re a man. Maybe you’re even a famous actor married to a beautiful woman. Then say that woman turns out to be an abusive loon who ruins your career with unprovable accusations of abuse at your hands. You end up in court trying to prove your innocence and retain your rights.

Johnny Depp is a gun owner. He’s also not even remotely someone we’d point to as a model citizen. He’s abused drugs and alcohol, and his treatment of his ex-wife Amber Heard was pretty bad. But Heard was also proven at trial to be a liar and the more physically and emotionally abusive of the pair. She lost a defamation suit, which is amazingly hard to do.

Should Depp lose his Second Amendment rights?

That wasn’t the point of his recent court case, and we’re not here to answer that question, but his case does illustrate how very difficult it is to answer that question. Yet cases just like his could fill courtrooms across the country, with men fighting to retain their gun rights in the face of accusations from a bitter ex-wife or girlfriend. Many of the women may be correct in judging the men to be unstable and unsafe with a firearm. Many others are liars or are at least grossly exaggerating any threat.

That brings us to the Senate’s gun legislation, which incentivizes the nationwide expansion of red flag laws, otherwise known as extreme protection orders. These laws present a real threat to due process because they often deprive people of their constitutional rights before a crime has even been committed. And it’s frequently based on the vindictiveness of domestic disputes rather than solid evidence of criminal behavior or even tendencies.

Sometimes a crime may have been committed, but thanks to a change that happened under Bill Clinton, it need be only a misdemeanor, not a felony. In truth, the disqualifier should be only felony convictions related to domestic abuse or any other crime.

“Existing federal law prevents individuals from purchasing firearms if they are convicted of misdemeanor domestic violence and have been married to, lived with or have a child with the victim,” explains The Hill. “But that existing [law] does not ban firearm purchases for abusers in other romantic or intimate relationships, a gap commonly known as the boyfriend loophole.”

According to Democrat Senator Chris Murphy, “We are closing the ‘boyfriend loophole.’”

The Hill cites studies from the CDC, the American Journal of Public Health, and Preventative Medicine illustrating the life-threatening danger to women posed by abusive men. As we said yesterday, in theory, it’s a great idea to keep firearms out of the hands of individuals who will use them to do harm to innocent people. In practice, it’s a whole lot more complicated than that. Ask Amber Heard and Johnny Depp.

As Second Amendment stalwart David Harsanyi writes: “The bill’s numerous vague, open-ended provisions will almost surely be abused by prosecutors, cops, aggrieved family members, exes, and political opponents. And, in the meantime, the likelihood that any of its provisions will help mitigate mass shootings is very small.”

Unfortunately, he’s also right that emotionally traumatized voters who just want to “do something” about guns after horrific massacres in recent weeks are “uninterested in hearing debates about due process or complaints from some 19-year-old who wants an AR.” That’s why so many Republican senators went along with this compromise bill.

House Republicans do not seem so keen on following suit. “I will oppose the Senate bill,” said House Minority Leader Kevin McCarthy, “because provisions in it would place additional unnecessary impediments and burdens on [a] law-abiding citizen’s right to own a firearm.”

It’s no small irony that the very people the Second Amendment was meant to protect us from — government tyrants — are the ones so eager to restrict it.

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