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Rahimi, Bruen, and the Implications of Domestic Violence Accusations on the Right to Bear Arms

November 7, 2023

On Tuesday, the Supreme Court of the United States heard oral argument in a critical case that could shape gun ownership rights and the ability of the Government to prosecute individuals for possessing guns across the country. In 2022, following the Supreme Court's seminal ruling in New York State Rifle & Pistol Association v. Bruen, a panel of the United States Court of Appeals for the Fifth Circuit struck down a federal law prohibiting individuals with protective orders from possessing a gun. The Government appealed and the Supreme Court agreed to hear the case. 

Every day in courtrooms across America, individuals accused of domestic violence are stripped of their Second Amendment right to bear arms—not due to a felony conviction, but simply because of an allegation. Title 18 U.S.C. § Section 922(g)(3) prohibits a person subject to a domestic violence restraining order from possessing a firearm. An overt action isn’t even required, but "anyone who . . . threatens violence against a loved one has demonstrated that he or she poses an unacceptable risk, and should be prohibited from possessing firearms." Congressional Record, p. S11878, September 30, 1996.

Additionally, according to the New York Times, 32 states and the District of Columbia all have similar laws that prevent people with domestic violence protection orders from possessing firearms. While the federal counterpart does not apply to partners who don’t live together, in Louisiana, the law expands widely to dating partners.

Last year, the Supreme Court of the United States decided in Bruen that a New York law requiring a person to show a special need for self-protection to receive an unrestricted license to carry a concealed firearm outside the home was unconstitutional. The Court held that the right to carry a gun in public for self-defense is deeply rooted in history, and gun restrictions are only constitutional if there is a history of such restriction. The decision relied on "historical analogues," which became the hot topic of the newest gun case to reach the highest court in the land.

Zackey Rahimi now hopes to expand SCOTUS’s ever-widening gun rights protections. The 1994 law at issue made possessing a gun while under a protective order punishable by up to 10 years in prison; it has since been raised to 15 years. Rahimi entered in a domestic violence restraining order after a court found that there had been a physical assault, someone had attempted to intervene, and Mr. Rahimi fired a gun into the air. While subject to that order, he became a suspect in another crime and upon a search of his home, firearms were found. He was later sentenced to prison time for violating the restraining order by possessing weapons in his home.

Rahimi is before the Supreme Court on a writ from a Fifth Circuit decision, which rejected a variety of old laws identified by the government as possible historical analogues, saying they did not sufficiently resemble the one concerning domestic violence orders. The panel noted that there were “disarmed classes of people considered to be dangerous, specifically including those unwilling to take an oath of allegiance, slaves and Native Americans.” That was different, according to the court, from domestic violence orders, which make case-by-case judgments about a particular individual’s dangerousness.

    In oral argument before SCOTUS today, Justices Thomas and Jackson both questioned the government on their historical reliance on principles that excluded Native American and enslaved people, to which the Government responded that at the time of founding, those groups of people were politically separated and not granted Second Amendment or other basic rights. Justice Jackson also repeatedly questioned whether there could be flaws within the "history and tradition framework" because it goes all the way back to the founding, when so many peoples were excluded from fundamental rights.

The Government argued that under precedent set by Heller and McDonald, Congress can disarm individuals who are not “law- abiding, responsible citizens.” When questioned by Justice Thomas, counsel for the Government categorized someone who is not “law-abiding” as a person who has committed a serious crime defined by felony level punishment. Alternatively, someone who is not “responsible” is anyone whose possession of firearms would pose an unusual danger to themselves or others. The Government argued that disarming “dangerous people” is grounded in our nation’s history and tradition, and that the Second Amendment does not prohibit legislatures from doing so. In fact, the solicitor general argued that this is actually consistent with the Second Amendment.  Some groups of people, such as minors and the mentally ill, are “inherently dangerous,” according to the Government, even if they don’t intend to be, and have restricted gun ownership rights as a result.

Importantly, according to the solicitor general, the “dangerous” categorization only applies to those deemed to be not responsible, not to those who are not law-abiding.  Additionally, the Government suggests there is a felony versus misdemeanor line, which is especially important when domestic abuse claims in Louisiana so often fall under the misdemeanor statute, but the allegations can result in the loss of firearm rights. Likely because of this, the Government is relying instead on the notion of "responsibility" in saying that the law was constitutional. However, when Justice Barrett asked if this created a law-abiding/responsible person test, the Government rejected that notion.

There was also a lot of discussion around whether due process rights were implicated here, and some scholars believe the due process argument gives the conservative justices a way to dispose of the law without looking to be siding with those accused of domestic violence. Justice Barrett pointed to the fact that Mr. Rahimi, pursuant to the protective order, was forbidden from communicating with his family and going within two-hundred feet of his residence, triggering due process rights. Justice Sotomayor appeared to challenge that view by stating that due process rights aren’t at issue here and are subject to a separate challenge, a sentiment echoed by Justice Gorsuch. Another subject of debate was whether self-defense was implicated here, as in Bruen. When Gorsuch questioned the Government about a domestic abuser who needs a gun for the purposes of self-defense but that is not aimed at the subject of a protective order, the solicitor general urged the court not to delve into that question because this case is about a facial challenge to the statute, and the defendant in question, Rahimi, isn’t raising those issues. Gorsuch seemed to adopt that reasoning, repeatedly raising the nature of the facial challenge in further questioning of Rahimi's counsel.

But unlike in Bruen, Mr. Rahimi was keeping a firearm in his own home, one of the most sacredly held constitutional rights. And while counsel for Mr. Rahimi conceded that there may be extreme circumstances wherein an individual can be separated from the ability to keep a firearm, he argued that this case looks to whether someone can be punished for that behavior. Mr. Rahimi was imprisoned for simply keeping a gun in his own home while under a protective order that he entered into without counsel and without the ability to pay for an attorney. 

Conservatives on the Court look to be laying the groundwork for expanding gun ownership. It appears that after Bruen—and emphasized in argument today— even if the Court upholds the federal ban on those accused of domestic violence, the new legal benchmark is whether a regulation is rooted in historical tradition, and no longer whether the law serves a public good. 

Other Second Amendment challenges have already begun since Bruen came down last year. Challenges to permanent bans on felons possessing firearms, and the prosecution of the removal of serial numbers from guns, are now being raised because there’s no exact historical analogue, as could be required. When Justice Barrett was seated on the Seventh Circuit Court of Appeals, she wrote that “History does not support the proposition that felons lose their Second Amendment rights solely because of their status as felons, but it does support the proposition that the state can take the right to bear arms away from a category of people that it deems dangerous.”

 In this case, Mr. Rahimi made what is called a facial challenge to the federal statute. In facial challenges, a party must show that the law at issue is unconstitutional in all circumstances. Based on the argument, it seems likely that SCOTUS will vacate the Fifth Circuit decision because this is facial challenge and there are circumstances where the statute could be valid. While the justices seem to believe that there is a historical precedent for keeping guns from “dangerous” persons, perhaps some also believe that not all felons should be withheld of that right. However, the Justices then went on to point out that such a ruling would not prevent any person—including Mr. Rahimi— from going back to court to argue the law is unconstitutional as applied to their specific case. Such a ruling would open up numerous new avenues for challenging state and federal gun restrictions whether an individual is charged with a crime or someone is seeking to have their gun rights restored. 

One theme that rang throughout arguments today is that there is chaos in the courts as a result of the Bruen decision. If you or your loved one has been accused of domestic violence, felon in possession, or any other crime, you need an informed team of attorneys on your side who know the law and will fight for you. Contact us today.