A federal court ruled that a federal law that makes it a crime for people subject to domestic-violence orders to possess guns violated the Second Amendment, reported The New York Times.
Next week, the U.S. Supreme Court is set to consider
whether to hear an appeal of that decision, which applied a history-based test
to rule that the government was powerless to disarm an abuser under the
domestic-violence law. The chances that the justices will agree to hear the
case are good.
The case started in 2019, when Zackey Rahimi
assaulted his girlfriend and threatened to shoot her if she told anyone,
leading her to obtain a restraining order. The order suspended Mr. Rahimi’s
handgun license and prohibited him from possessing firearms.
Mr. Rahimi defied the order in flagrant fashion,
according to court records.
He threatened a different woman with a gun, leading
to charges of assault with a deadly weapon. Then, in the space of two months,
he opened fire in public five times.
Upset about a social media post from someone to whom
he had sold drugs, for instance, he shot an AR-15 rifle into his former
client’s home. When a fast-food restaurant declined a friend’s credit card, he
fired several bullets into the air.
The shootings led to a search warrant of Mr.
Rahimi’s home, which uncovered weapons, and he was charged with violating the
After a judge rejected his Second Amendment
challenge to the law, he pleaded guilty and was sentenced to more than six
years in prison. The U.S. Court of Appeals for the Fifth Circuit at first
affirmed his conviction in a short decision, rejecting the argument that the law violated the
Second Amendment in a footnote.
But the appeals reversed course after the Supreme Court issued a decision
last June establishing a new test to decide whether gun control laws are
constitutional, one focused on history.
Under that test, a unanimous three-judge panel of
the Fifth Circuit ruled, the law prohibiting people subject to
domestic-violence orders from possessing firearms violated the Second Amendment
because there was no historical support for it.
Next week, almost a year to the day after the Supreme Court announced the new approach in New York State Rifle & Pistol Association v. Bruen,
the justices are set to meet to discuss whether to hear the Biden
administration’s appeal. The court often hears appeals of decisions holding
federal laws unconstitutional.
The case, United States v. Rahimi, No. 22-915, would give
the court a chance to explore the scope of its new test, which requires the
government to identify historical analogues to justify laws limiting Second
As a general matter, Justice Clarence Thomas wrote
in his majority opinion in Bruen, the Second Amendment protects the rights of
“an ordinary, law-abiding citizen.” And there is, the Biden
administration told the justices in the new case, “strong
historical evidence supporting the general principle that the government may
disarm dangerous individuals.”
But the Fifth Circuit rejected a variety of old laws
identified by the government as possible analogues, saying they did not
sufficiently resemble the one concerning domestic-violence orders. Many of
them, Judge Cory T. Wilson wrote for the panel,
“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, he wrote, from domestic-violence orders, which make
case-by-case judgments about a particular individual’s dangerousness.
Lawyers for the administration questioned that
distinction. “It would be bizarre,” they wrote, “if legislatures could disarm
dangerous individuals based on categorical presumptions, but not based on
individualized judicial findings after notice and a hearing.”
Judge Wilson, who was appointed by President Donald
J. Trump, wrote that the government’s insistence that it can disarm people who
are not law-abiding “admits to no true limiting principle.”
speeders be stripped of their right to keep and bear arms?” he asked.
“Political nonconformists? People who do not recycle or drive an electric
Judge Wilson conceded that the challenged law
“embodies salutary policy goals meant to protect vulnerable people in our
society.” But he said the approach required by the Bruen decision did not allow
courts to weigh the benefits of the law against its burdens. What was
important, he wrote, quoting that decision, was that “our ancestors would never
have accepted” the law on domestic-violence orders.
James C. Ho, who was also appointed by Mr. Trump, issued a concurring
opinion saying there were better ways to protect victims of domestic abuse.
“Those who commit violence, including domestic
violence,” he wrote, “shouldn’t just be disarmed — they should be detained,
prosecuted, convicted and incarcerated. And that’s exactly why we have a
criminal justice system — to punish criminals and disable them from engaging in
But Judge Ho said domestic-violence orders were
products of the civil justice system and were subject to abuse.
“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,” he wrote. “That
makes it difficult to justify” the law Mr. Rahimi challenged “as a measure to
disarm dangerous individuals.”
In a brief urging the Supreme Court to deny review,
lawyers for Mr. Rahimi said domestic violence was not a new phenomenon. “The
founders could have adopted a complete ban on firearms to combat
intimate-partner violence,” their brief said. “They didn’t.”
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