The 5th U.S. Circuit Court of Appeals ruled Thursday that it is unconstitutional for states to prohibit people under domestic violence protection orders from owning firearms.
The conservative appeals court ruling is the latest in a series of lower court cases striking down gun control laws following the Supreme Court’s 6-3 decision in New York State Rifle & Pistol Association, Inc. v. Bruen in 2022.
The court’s decision in Bruen, written by Justice Clarence Thomas and joined by five other court conservatives, led to a 1913 New York state statute that limited citizens’ ability to obtain concealed carry permits. But the Thomas decision also goes further than just saying that no law restricting the right to own and bear firearms is constitutional unless it is “consistent with the historical tradition of firearms regulation,” particularly in the 18th and 19th centuries.
And that’s exactly how a 5th Circuit panel of Trump-appointed judges James Ho and Corey Wilson and Reagan-appointed judge Edith Jones struck down a federal ban on firearms ownership by anyone court-barred from “harassing, stalking, or threatening.” intimate or their children.
Quoting from Bruen, the court said that banning firearms possession by people under domestic violence protection orders is “an outlier that our forefathers would not have accepted.”
The case comes out of Texas, where Zackey Rahimi is suing to challenge his conviction for firearms possession after he went on a rampage while under a domestic violence-related court order prohibiting him from possessing firearms.
In February 2020, Rahimi agreed to a civil protection order after being accused of assaulting his ex-girlfriend. The order prohibits him from possessing firearms because he remains a “credible threat” to his ex-girlfriend and children.
Since December 2020, Rahimi has been involved in five separate shootings. He shot up people’s houses after selling drugs. He gets into a car accident and then shoots another driver’s car as he flees – then goes back to another car to shoot another car again. He shot at the police car. And finally, he fired a shot into the air at Whataburger after his friend’s credit card was declined.
When police finally arrested Rahimi, they found a handgun and a rifle in his home, in violation of a protective order. He eventually pleaded guilty. But after Bruen’s ruling, she appealed, arguing that it was unconstitutional to prohibit her from owning a firearm while she was under a domestic violence protection order.
First, the 5th Circuit took up the argument that the Supreme Court’s gun rights precedents, including Bruen, recognize that those rights are reserved for “ordinary, law-abiding citizens.” Because Rahimi was clearly not an ordinary, law-abiding citizen, the government argued that he would not be afforded the protection of rights granted in Bruen.
But the appeals court asserted that the reference to “ordinary and law-abiding citizens” in Bruen was only intended to leave out of question “the long-standing ban on the possession of firearms by felons and the mentally ill, or laws prohibiting the carrying of firearms in places where sensitive areas such as schools and government buildings” – and while Rahimi is not a law-abiding citizen, a domestic violence protection order does not fall under that legal bucket.
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The next question the court addressed was whether there was a historical analogue in America in the 18th and 19th centuries for the prohibition of firearms for persons under domestic violence protection orders.
Analogies offered by the Justice Department include “dangerous” laws passed to prohibit certain classes of people, including Native Americans and enslaved people, from owning firearms; the law “to be armed” that disarms people from firearms if they pose a potential threat to the peace, and the “guarantee” law that allows people to request that they have “merely caused fear” to provide guarantees that they will not harm people, which can resulting in a general ban on the carrying or possession of firearms.
In each case, the 5th Circuit judges found that the statute was neither a historical analogy nor part of the “historical tradition of firearms regulation.”
As for the “dangerous” law, the court ruled that the law “disarms people by class or group, which is different from bans after “individual findings of a ‘credible threat’ to determine potential victims,” as in the case of domestic violence neighbors. protective order laws. Courts also overturned this analogy because the Founders and the people who made the laws when they founded the country just didn’t care about domestic violence.
“The purpose of this ‘danger’ law is the maintenance of political and social order, not the protection of an identified person from a specific threat posed by others,” the decision stated.
The court struck down the “arms” laws because only two states had enacted disarmament provisions, and only one had retained such provisions after 1795.
And while the court said the “bail” law was the closest analog, it ultimately ruled that there was no analogy because it allowed defendants to post bail to avoid restrictions on gun ownership, while the law was blanket. Possession bans for people under domestic violence protective orders.
The failure of the Founding Fathers to care about domestic violence is of no help to those who today face the threat of intimate partner violence.
Studies show that an abusive intimate partner is five times more likely to kill a female victim if they have access to a gun.
Seventy women shot and killed by an intimate partner on average every month. In 2020, the year Rahimi entered the protection order, 634 women died by an intimate partner with a firearm. An intimate partner or family member was killed in two-thirds of all mass shootings from 2014-2019. The level of intimate partner violence 25% increase in 2021.
The court stated that the law “fulfills the salutary policy objective of protecting the vulnerable in our society.” However, Bruen “sees the analysis to support a historical analogical inquiry into the scope of permissible burdens under Second Amendment rights.”
The government can appeal the decision to the Supreme Court.