In an opinion that sent shock waves through gun control and domestic violence advocacy circles, the 5th U.S. Circuit Court of Appeals ruled last week that the Second Amendment allows people under protective orders for committing domestic violence to keep their guns.
In the span of a month during the winter of 2020, Zackey Rahimi was involved in five shootings around Arlington, according to court documents. He shot at someone's house after selling them prescription narcotics. After getting into a car accident, he shot at a car, returned in another vehicle and shot at the car again. Three days before Christmas, he shot at a constable's car. And after New Year's, he fired shots into the air outside a Whataburger after his friend's credit card was declined.
During all these incidents, Rahimi was not supposed to have guns, one restriction of a protective order issued in February 2020 after he allegedly assaulted his girlfriend. When police officers executed a search warrant in connection with Rahimi's alleged shooting spree, they found a handgun and a rifle — which violated both state and federal law. Rahimi was indicted by a federal grand jury for possession of a firearm while under a domestic violence restraining order.
Rahimi argued in court that the charge violated his constitutional rights, and the courts initially disagreed. But in the wake of a landmark 2022 ruling in New York State Rifle & Pistol Association v. Bruen, in which the U.S. Supreme Court established a new standard that modern gun control laws must be "consistent with the Second Amendment's text and historical understanding," Rahimi's case was reheard, and the 5th Circuit, in an opinion authored by Donald Trump appointee Cory T. Wilson, agreed that Rahimi's rights were violated when law enforcement disarmed him due to the protective order.
"Rahimi, while hardly a model citizen, is nonetheless part of the political community entitled to the Second Amendment's guarantees, all other things equal," Wilson wrote in the ruling.
The ruling, joined by judges James Ho and Edith Jones, stunned advocates for domestic violence victims, who see disarming abusive or dangerous domestic partners as an obvious first step in attempting to forestall tragedy.
"That the ruling could be what it was with the fact scenario of Rahimi is terrifying to me," said Jeana Lungwitz, the director of the Domestic Violence Clinic at the University of Texas School of Law. "It was proof that, you know, if we don't care about his partner, I mean, do we care about the public?"
In 2021 alone, 127 women in Texas were murdered by their male intimate partners with firearms, according to the Texas Council on Family Violence. Across the country, an average of 70 women each month are killed by their partners with guns. Research has shown that a domestic violence victim's risk of death is five times higher when their abuser has access to a gun.
Although the appeals court ruling focused on an abstract historical analysis, the risks to domestic violence victims could not be more immediate, says Mikisha Hooper, the coordinated community response manager at the Texas Council on Family Violence.
Hooper amassed the stories of 204 victims of intimate-partner homicide in 2021. At least five of them were killed while they had active protective orders, but the orders are still the most effective tool that victims have against harassment, stalking and violence, Hooper said.
"They are one of the only mechanisms that survivors have that's a direct intervention to stop the abuse," Hooper said. "For most people, protective orders are working, and they work better when the full provisions are in force and a firearm is taken out of the equation."
Hooper said that the ruling will make survivors of domestic violence less safe — and less likely to pursue protective orders that may already seem risky for those in danger.
"If you know your partner is highly dangerous, very threatening, has already threatened to kill you … especially if you know that there's no likelihood that they would have to surrender the weapons that they've been threatening you with, it feels like an option that's just been taken away from survivors — the teeth has been taken out of it," Hooper said.
Last June's Bruen ruling implemented a new test to determine the constitutionality of gun control laws, requiring them to be "consistent with the Nation's historical tradition of firearm regulation." Lower courts across the country have been left to interpret that somewhat vague test and as a result have repeatedly struck down legislation intended to protect people from gun violence. The 5th Circuit ruling in the Rahimi case follows a November district court ruling in a separate case, in which U.S. District Judge David Counts of the Western District of Texas made a similar ruling in a case involving a man who was disarmed at a border checkpoint because of an active protective order against him.
Second Amendment experts are split on whether the 5th Circuit ruling correctly applied Bruen.
"I don't think that the Fifth Circuit's decision is an obviously incorrect reading of Justice Thomas's majority opinion. Or, if it is, it's one that has been repeated by a bunch of federal courts over the last seven months," Steve Vladeck, a University of Texas law professor focused on constitutional law, wrote in a blog post about the ruling. "After all, this kind of 'analogy hunting' has led courts to strike down an array of gun restrictions in decisions that seem to defy common sense."
Janet Carter, the director of Everytown Law's Second Amendment practice, said that the 5th Circuit panel opinion misapplied Bruen in striking down this law in part because the concept of domestic violence was not understood throughout history the way our modern society understands it now.
"Bruen requires a history-focused approach to the Second Amendment, but it also requires courts to recognize that 'unprecedented societal concerns' — like the elimination of domestic violence — demand a more nuanced approach to the historical inquiry," Carter said.
In the Rahimi case, the federal government argued that the law protecting domestic violence victims was similar to historical laws that allowed for disarming "dangerous" people. But the 5th Circuit found those laws, which were targeted at Native American and Black people as well as those who failed to "take an oath of allegiance," were not similar enough to pass the test.
"The purpose of these 'dangerousness' laws was the preservation of political and social order, not the protection of an identified person from the specific threat posed by another," the court wrote.
"Bruen says expressly that the government need not present direct historical twins to the law it's defending — but that's exactly what the panel opinion required," Carter said. "If Bruen is correctly applied on further review, this decision should be reversed."
The federal government agrees and will be appealing the case.
"Nearly 30 years ago, Congress determined that a person who is subject to a court order that restrains him or her from threatening an intimate partner or child cannot lawfully possess a firearm," U.S. Attorney General Merrick Garland said in a statement. "Whether analyzed through the lens of Supreme Court precedent, or of the text, history, and tradition of the Second Amendment, that statute is constitutional. Accordingly, the Department will seek further review of the Fifth Circuit's contrary decision."
Hooper said that the decision is still very new and likely hasn't trickled down to the level of awareness for people currently under protective orders. But she said there's a real risk that, if the law is permanently struck down, it will become yet another way abusers will terrorize their victims.
"A very common tactic that people who are abusive use is to make you believe that they have all the power, and you don't have any options," Hooper said. "What we're really concerned about, even talking about this publicly, is that it's going to circulate more, and this is going to be weaponized as a control tactic. Now they can point to something and say, 'No one's coming for my guns, so you don't have a way out.'"
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This article originally appeared in The Texas Tribune at https://www.texastribune.org/2023/02/09/guns-domestic-abuse-second-amendment/.
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