A conservative appeals court has thrown out the federal law that prevents alleged domestic abusers from possessing guns, calling the statute “an ‘outlier’ that our ancestors would never have accepted.”
A panel of the U.S. Court of Appeals for the Fifth Circuit handed down a ruling Thursday in United States v. Rahimi that could undermine the government’s ability to keep firearms out of the hands of those with a history of violence.
The Trump-packed appeals court vacated the conviction of one alleged domestic abuser, which could open the door for many more with a similar criminal history to keep their weapons.
The ruling builds on the Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen, in which the 6-member majority leaned hard on the “historical” basis for guns. The Bruen case was an expansion of the gun rights jurisprudence of District of Columbia v. Heller (2008) and McDonald v. Chicago (2010), in which Justice Clarence Thomas wrote for the majority that New York’s gun licensing statute offended the Second Amendment.
At issue was 18 U.S. Code § 922, which bars individuals from possessing guns if they are “subject to a court order that restrains [them] from harassing, stalking, or threatening an intimate partner.”
According to a recent study in the medical journal Injury Epidemiology, 59% of mass shootings studied between 2014 and 2019 were domestic violence related and in 68.2% of those shootings, the suspect either killed at least one family member or had a history of domestic violence.
Zackey Rahimi became the subject of a Feb. 2020 civil restraining order after his girlfriend accused Rahimi of assaulting her. Rahimi consented to the order, which prohibited him from harassing, stalking, or threatening his ex-girlfriend and their child, and also prohibited him from possessing a gun.
Despite the restriction to which Rahimi agreed, he was involved in five Texas shootings between Dec. 2020 and Jan. 2021. In one, he fired multiple shots into the residence of a person to whom he had sold narcotics. The next day, Rahimi was in a car accident; he shot the other driver, fled the scene, and then returned to another vehicle and shot the other driver’s car. A few weeks later, Rahimi shot at a constable’s vehicle. Then two weeks after that, he fired multiple shots into the air after his friend’s credit card was declined at a Whataburger restaurant.
When law enforcement caught up with Rahimi while executing a warrant, they found a rifle and a pistol in his home. Rahimi was then charged and convicted of unlawfully possessing the guns. Rahimi challenged his conviction on the grounds that the charging law —18 U.S. Code § 922— was an unconstitutional violation of the Second Amendment.
A three-judge panel of the Fifth Circuit made up of U.S. Circuit Judges Edith Jones (a Ronald Reagan appointee), James Ho, and Cory Wilson (both Donald Trump appointees) agreed and sided unanimously with Rahimi’s request to vacate his conviction.
Wilson, who wrote a 21-page decision for the panel, characterized (and subsequently rejected) the government’s argument as follows: “the Second Amendment  restricts its applicability to only ‘law-abiding, responsible citizens,’ and Because Rahimi is neither responsible nor law-abiding, …he falls outside the ambit of the Second Amendment.”
Wilson took issue with what he described as the government’s limited view of the Second Amendment’s applicability. He wrote that “the words ‘the people’ in the Second Amendment” means “all members of the political community, not an unspecified subset,” but rather, everyone in the ” national community.” Wilson went on to explain that when the Supreme Court referenced “law-abiding, responsible citizens” in its Heller decisions, it did not actually mean to allow states to strip individuals like Rahimi of their right to bear arms.
“Rahimi, while hardly a model citizen, is nonetheless part of the political community entitled to the Second Amendment’s guarantees, all other things equal,” wrote the Trump-appointed judge.
The panel ruled that under Bruen, gun regulations can only stand if they line up with a “historical analogue.” When the panel searched for a historical parallel to §922, it came up empty-handed. The court rejected the government’s argument that either the English Militia Act of 1662 (which prohibited “dangerous” persons from keeping guns), or colonial regulations disarming “disloyal” individuals were similar enough to the current gun regulations to satisfy Bruen‘s demands.
Ho, who once clerked for Clarence Thomas, wrote a brief concurrence in which he lamented that “the Second Amendment has too often been denigrated as ‘a second-class right.””
Ho argued that the “fundamental role of government in protecting citizens against violence” and the “individual right to keep and bear arms,” are not in conflict, but rather, are “entirely compatible with one another.”
Attorney General Merrick Garland issued a statement Thursday night vowing to appeal the Fifth Circuit’s ruling:
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. 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.
Garland did not elaborate on whether the Department of Justice would first request an en banc rehearing by the full Fifth Circuit, or proceed directly to the Supreme Court for review.
Since the Supreme Court’s ruling in Bruen, multiple gun-related cases around the country have tested the limits of the precedent including several New York and D.C. cases over “sensitive location” restrictions in places like Times Square and the D.C. metro.
[Photo by Scott Olson/Getty Images.]
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