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Could Shaquille O'Neal be the next Dick Heller?

By "Milbarge" and "Fitz-Hume"

I think Prof. Berman has found a new champion in his quest to see the courts recognize robust Second Amendment rights in the context of federal criminal firearms laws.

A judge in Atlanta has imposed a temporary restraining order on basketball megastar Shaquille O'Neal. A 23-year-old woman alleged that she and (the married) O'Neal had an intimate relationship, but when she ended it, Shaq stalked her by sending threatening emails and making harassing phone calls. The woman says O'Neal sent an email stating "I dnt no who the [expletive] u think u dealin wit u will neva be heard from one phone call is I gotta make now try me. Sho me." More coverage from Deadspin here and AOL's Fanhouse here.

It should be noted at the outset that these are only allegations. The restraining order was granted ex parte and O'Neal has not even been served with it yet, let alone had a chance to appear and contest it. (A hearing is scheduled for September 4.) But after the hearing, the judge could make the restraining order permanent. I confess my ignorance on the law regarding restraining orders, but I would presume a permanent order requires some kind of showing that the allegations are credible and that O'Neal poses a danger to the woman.

But if Shaquille O'Neal finds himself subject to a restraining order, he has some problems (aside from whatever punishment the NBA might impose). O'Neal is famous for having something of a cop fetish, on par with that of Elvis Presley's. O'Neal has been made an honorary officer of several law enforcement agencies (including the U.S. Marshals), has made arrests as a Miami "reserve officer," and participated in the service of a search warrant (albeit on the wrong house) on a suspect in a pornography case. Shaq has made it clear on many occasions that he wants to be a full-time police officer when he retires from basketball.

And therein lies the rub. It almost goes without saying that no wise law enforcement agency would hire a high-profile deputy subject to a restraining order for stalking and threatening a former companion. Indeed, many of Shaq's police pals disassociated themselves from O'Neal after he was caught on video saying some bad words about former teammate Kobe Bryant. If something that innocuous makes police offices leery, imagine how they would react to a restraining order.

But the even more serious consequence for O'Neal would be the impact of federal criminal firearms laws. Tucked away in the federal code is Section 922(g)(8) of Title 18. That provision makes it illegal for anyone under a restraining order to possess a firearm. The order has to be entered after notice and a hearing, so Shaq's wouldn't qualify yet, but if the judge makes it permanent after the upcoming hearing, I think it would fall within section 922(g)(8).

Obviously, O'Neal couldn't be a police officer if he were legally prohibited from possessing firearms. More importantly, it would be a federal crime for him to possess firearms, at any time, ever, for life. (I don't know for sure if Shaq even has a gun now, but I can't say it would shock me if a "reserve officer" who participated in SWAT raids happened to own a gun.)

Now, we may decide that the provision makes sense, and courts might uphold it against a Second Amendment challenge. Notably, however, the Supreme Court's dicta in Heller suggesting the continuing validity of firearm-possession bans on felons and the mentally ill does not include persons subject to restraining orders.

Prof. Berman has questioned several times whether (non-violent) felons like Martha Stewart and Scooter Libby should be permanently stripped of their rights to self-defense in their homes. Shaquille O'Neal could make a similar argument, and he wouldn't even have to be convicted of anything. Yes, he could hire an entourage of bodyguards, but they would be unlikely to sleep in his bedroom, where he might desire a measure of lethal protection. (Ask Sean Taylor.)

I realize there are strong arguments that stalkers and those who threaten violence are exactly the type of people out of whose hands we would want to keep firearms. But if O'Neal were subject to serious penalties for violating the restraining order or contacting the woman, is it also necessary to prohibit him, on pain of federal prison, from possessing a gun even when he's far away from her, and even if he needs it for self-defense in his home?

Even if the answer is "yes," I think it's a worthy debate to have, and O'Neal might be the perfect protagonist. He certainly has a higher favorable rating than your average person under a restraining order. (And, I wouldn't be shocked if his apologists start spreading the notion, regardless of the facts, that this case is about a psycho ex-girlfriend overreacting and denying Shaq his dream of taking down perps.)

Anyway, I will be interested to see how all this plays out. If Shaq still wants to be a police officer, I expect him to fight this pretty hard.

Full post as published by Begging the Question on August 23, 2008 (boomark / email).