We’re starting to see the fallout from the Supreme Court’s most recent Second Amendment decision.
A panel of judges on an exceedingly reactionary federal appeals court ruled on Thursday that the federal law prohibiting individuals from “possessing a firearm while under a domestic violence restraining order” is unconstitutional.
Under Judge Cory Wilson’s opinion in United States v. Rahimi, people with a history of violent abuse of their romantic partners or the partners’ children now have a Second Amendment right to own a gun, even if a court has determined that they are “a credible threat to the physical safety of such intimate partner or child.”
The immediate impact of this decision is that Zackey Rahimi, who “was subject to an agreed civil protective order entered February 5, 2020, by a Texas state court after Rahimi’s alleged assault of his ex-girlfriend,” may not be convicted of violating the federal ban on gun possession by domestic abusers.
More broadly, because the decision was handed down by the US Court of Appeals for the Fifth Circuit, which presides over federal lawsuits in Louisiana, Mississippi, and Texas, this federal law can no longer be enforced in those three states.
One of the most alarming things about Rahimi, moreover, is that it is far from clear that this decision is wrong — at least under a new precedent the Supreme Court handed down last year drastically expanding the Second Amendment.
The Court has seemingly turned back the clock on America’s gun laws by 150 years or more
Up until last year, federal courts applied what one Fifth Circuit judge described as a “two-step analytic framework” in Second Amendment cases. Under this framework, “severe burdens on core Second Amendment rights” are subject to “strict scrutiny,” the most skeptical level of review in most constitutional cases. Meanwhile, “less onerous laws, or laws that govern conduct outside of the Second Amendment’s ‘core,’” are subject to a more permissive test known as “intermediate scrutiny.”
As Wilson notes in his Rahimi opinion, the Fifth Circuit previously upheld the federal ban on gun possession by domestic abusers in an opinion “applying this court’s pre-Bruen precedent.”
But in New York State Rifle & Pistol Association v. Bruen in 2022, the Supreme Court tossed out the old two-step framework in favor of a new test that centers the history of English and early American gun laws.
Under this new framework, the government has the burden of proving that a gun regulation “is consistent with this Nation’s historical tradition of firearm regulation,” or else that regulation must be struck down. Bruen, moreover, strongly suggests that a gun law must fall if it addresses a “general societal problem that has persisted since the 18th century” and the government cannot identify a “distinctly similar historical regulation addressing that problem.”
Moreover, Bruen said, “if earlier generations addressed the societal problem, but did so through materially different means, that also could be evidence that a modern regulation is unconstitutional.”
If courts take this framework seriously, then it is questionable whether any law seeking to prevent domestic abusers from owning firearms may be upheld. The early American republic was a far more sexist place than America in 2023, and it had far fewer laws protecting people from intimate partner violence.
Indeed, until 1871, when the Alabama Supreme Court ruled that a husband and wife “may be indicted for assault and battery upon each other,” it was legal in every state for married partners to beat their spouses.
Even the Fifth Circuit might still allow convicted felons to lose access to firearms
All of this said, even Wilson’s opinion in Rahimi might still allow domestic abusers to be stripped of their guns — but only if they’ve previously been convicted of a felony. Prior to Bruen, in District of Columbia v. Heller (2008), the Court held that its interpretation of the Second Amendment “should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill.”
Meanwhile, in Bruen itself, Justice Brett Kavanaugh — the median vote on the current Court — wrote a separate concurring opinion indicating that he does not want to overrule this portion of Heller. Wilson’s opinion in Rahimi also quotes this portion of Heller, suggesting that even this Fifth Circuit panel believes that Heller’s holding that convicted felons may be stripped of gun rights remains good law.
But that’s cold comfort to victims of domestic violence whose abusers have not yet been found guilty of a felony. The federal law struck down in Rahimi prohibited domestic abusers from owning a firearm if they are “subject to a court order” that restrains them from “harassing, stalking, or threatening an intimate partner,” and if certain other conditions are met — such that the court found that the abuser “represents a credible threat to the physical safety of such intimate partner or child.”
These sorts of restraining orders could be handed down in a civil proceeding, which does not require a prosecutor to prove that the defendant committed a crime beyond a reasonable doubt. Now, however, these protections for victims of domestic violence are gone in the Fifth Circuit, which presides over cases in Louisiana, Mississippi, and Texas.
As a general rule, the Supreme Court typically agrees to review any federal appeals court decision that strikes down a federal law, so it is exceedingly likely that the Supreme Court will hear this case. Should the justices stick to what they said in Bruen, this federal ban on gun possession by domestic abusers could soon be repealed nationwide.