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    • Apr 29

U.S. v. Rahimi: The Fate of Those Facing Domestic Violence Hangs in the Balance

Gabriella Quesada

Edited by Mac Kang, Jia Lin, and Vedanth Ramabhadran


The Second Amendment has long been a common topic of discourse in areas such as diverse state regulations, concealed carry laws, and public mass shootings. However, a group of people often overlooked in discussions concerning Second Amendment rights are those who have a domestic violence restraining order (DVRO) against them. While this subset of gun control concerns seems niche, the recent decision in New York State Rifle & Pistol Association, Inc. v. Bruen has opened up new possibilities for the Supreme Court to declare how flexible their interpretations of the Second Amendment can be. This has important implications for the ongoing case of U.S. v. Rahimi, which is anticipated to be ruled on in June or July of 2024 [1].  The possible answers to the case’s main issue of whether the government may criminalize guns owned by people under DVROs open up more concerns which will not only threaten the lives of those subjected to domestic violence but all American civilians. Zackey Rahimi, described by court documents as a Texan drug dealer, had a history of violence prior to the actions in this case [2]. The most relevant incident occurred in December 2019 when Rahimi physically assaulted his girlfriend as he threatened to take away their shared child. Fortunately, Rahimi’s partner was able to escape and later filed a 2-year long restraining order against him in February 2020, which was issued after a Texas Court found that Rahimi had committed family violence and was highly likely to do so again. Rahimi was prohibited from approaching his previous partner or her family and from possessing a firearm under Texas Pen. Code §§ 46.04(c), 25.07(a)(4), which concerns family violence-type protective orders [3].

Currently, many states have a similar approach in restricting people deemed a risk to themselves and/or others from possessing a firearm thanks to The Extreme Risk Law, which enables the state to proactively prevent people deemed dangerous from causing further harm to the public. However, while 21 states and Washington D.C. have adopted The Extreme Risk Law, Texas has not. Despite Rahimi being warned by the Texas court that possessing a gun during the two-year order may be a federal felony,  Rahimi fired a gun in five different incidents from December 2020 through January 2021, ranging from road rage to drug dealings [2]. After he was identified for these acts of violence, the police obtained a search warrant for Rahimi’s residence where they found a pistol, rifle, magazines, and ammunition. As a result, Rahimi was indicted by a federal grand jury for violating 18 U.S.C. § 922(g)(8), which prevents people under a DVRO from possessing a firearm [3].

During the trial, the jury deemed that the prosecution had satisfactorily fulfilled the three elements of Section 922(g)(8): first, notice and hearing by the court was given before the issuing of the order; second, the order prohibits the person from “harassing, stalking, or threatening an intimate partner, the person’s child, or an intimate partner’s child”; and third, the person poses a critical threat to the partner and/or child. Rahimi moved to appeal this ruling, arguing that Section 922(g)(8) violates the Second Amendment [2].

The case then moved to the U.S. Court of Appeals for the 5th Circuit and was decided on June 8, 2022. Initially, the lower court’s charge was upheld. However, 15 days later, the Supreme Court made a pivotal decision regarding Second Amendment rights in N.Y. State Rifle & Pistol Association, Inc. v. Bruen. In this case, the Court was tasked with evaluating the constitutionality of a New York law that required applicants for unrestricted concealed-carry licenses to demonstrate a special need for self-defense [4]. On June 23, 2022, the Court ruled that the state’s law violates the Fourteenth Amendment by barring law-abiding citizens from exercising their Second Amendment right to keep and bear arms in public for self-defense. In light of this new decision, on March 2, 2023, the 5th Circuit Court amended its opinion to accept Zackey Rahimi's argument and reversed the district court's decision [5]. There are many different kinds of methods appellate courts can amend their opinions, including clerical errors or panel rehearings; however, a Supreme Court Review is rare [6]. The Fifth Circuit Court's amendment of its initial opinion in light of Bruen reveals the dynamic and responsive nature of the judicial system and the value of precedent-setting interpretations of constitutional provisions. However, this adaptability, while essential for the evolution of legal standards, also introduces uncertainties, particularly when dealing with highly contentious issues like gun control and domestic violence.

The timing of the Rahimi case, concerning the new precedent set by the N.Y. State Rifle & Pistol Association, Inc. v. Bruen case, has positioned the Second Amendment rights of those with a DVRO at center stage. Essentially, in Bruen, the Court declared that regulations on gun ownership must have either existed since the adoption of the Second Amendment in 1791 or be “closely analogous” to those that were in place at that time. This case influenced the 5th Circuit’s original opinion in Rahimi through the implementation of the new “history-and-tradition” test. In Rahimi, this resulted in the 5th Circuit declaring there was no historical record or similarly related regulation in 1791 that prevented gun ownership for those with DVROs, upholding Rahimi’s argument for unconstitutionality. While only Texas, Louisiana, and Mississippi are currently affected by the 5th circuit's opinion, the SCOTUS opinion has the potential to uphold this across the entire country, irreparably altering the way we view the 2nd Amendment and DVROs.

As U.S. v. Rahimi is the first case that the Court will implement this new “history-and-tradition” test, it will force the justices to determine how flexible the analogical approach will be since domestic violence was not legally defined when the Second Amendment was created. DVROs originated in 1976 when Pennsylvania sought to provide a protective measure for victims of this type of violence [7]. The gap in history between the adoption of the 2nd Amendment and the rightfully instituted DVROs leads to the American population awaiting the Court’s analysis and reasoning about regulations on gun ownership.

Solicitor General Elizabeth Prelogar has argued that  18 U.S.C. § 922(g)(8) passes this new test under Second Amendment scrutiny due to English law granting the government power to disarm those who are “dangerous or not peaceable” [8]. Additionally, she points out a longstanding tradition in American legislatures of disarming those “unfit to possess arms” such as minors, intoxicated persons, felons, and people with certain mental illnesses. Lastly, she argues that the direct wording in the Second Amendment declares that the right to bear arms stems only to those who are “honest and lawful” and present no “danger of public injury”. To connect these arguments to the Second Amendment rights of those with DVROs, it has been articulated that the provisions for such court orders have adequate safeguards to only pertain to those who have been deemed “dangerous and irresponsible”. Furthermore,  studies have found that those who filed a DVRO against their partner are 5 times more likely to be killed if their abusive partner has access to a firearm [9]. This fulfills the second half in the wording of the amendment concerning the risk of “public injury”. 

In response, the appellant argues that the general terminology of “honest and lawful” is not sufficient for the new requirements of the Bruen test of historical and/or historically analogous regulations [10].  Rahimi declares there to be no case of gun regulations against those with civil orders of protection in 1791. However, the appellant goes further to challenge the “responsible and law-abiding” terminology, stating that Rahimi is only a subject of a DVRO and not convicted of domestic violence; thus making it very difficult to frame him, in this specific light, as not being “law-abiding”. Although by having a DVRO, the lower court deemed Rahimi likely to use a gun again in ongoing domestic abuse, he has not been convicted of domestic abuse. 

As both the essence of the case and the argumentation from both sides have been shared through briefs, two hypothetical scenarios could ensue. If the Court were to affirm the appellate court’s updated decision, then not only would the safety of domestic abuse victims be threatened, but the security of the general population as well. The federal statute that prohibits felons from owning guns, 18 U.S.C. § 921 et seq., would also be up for constitutional review [11]. This particular code is a part of the 1968 Gun Control Act which includes the prohibition of gun ownership for those with DVROs. Therefore, the Court’s definition of the flexibility of the Bruen case could also enable the over 78,000 annually released convicted felons, in Texas alone, to own a gun [12].

On the other hand, the Court could uphold the appellee's arguments to uphold the current gun regulations. However, the challenge of defining the “history-and-tradition” approach remains. Considering the validity of the appellant’s arguments, upholding the law seems to come with its own set of challenges as to how far this new Bruen test can stretch, which has important implications for other cases as well.

This reversal of precedent has been reflected in the status quo with the overturning of Roe v. Wade. States have since changed their abortion policies, with a unified position yet to come despite the federal ruling. In the case of U.S. v. Rahimi, states have already reacted legislatively while awaiting the Court decision. For instance, the Attorney General for Wisconsin, Josh Kaul, introduced new statutes e 947.01 (1) (a) and 968.075 (1) (f) that prohibit firearm possession for those convicted of violent offenses related to domestic violence [13]. The statutes vary slightly from the Rahimi case by focusing on those convicted of this criminal offense rather than those with a DVRO; however, it shows the pushback already occurring from state officials in response to Bruen and Rahimi. One in every six domestic violence deaths in the U.S. happen in Wisconsin; these legislative efforts reflect an understanding of the direct link between access to firearms and the lethality of domestic violence incidents.

In this era of evolving legal interpretations and shifting societal norms, U.S. v. Rahimi, concerning the landmark N.Y. State Rifle & Pistol Association, Inc. v. Bruen decision, illustrates the delicate and often contentious relationship between constitutional rights and societal needs. Whether the Court affirms the appellate court's decision or takes a different path, the ruling will undoubtedly have profound implications for the interpretation of the Second Amendment, the regulation of firearms, and the protection of individuals from domestic violence. Ultimately, U.S. v. Rahimi and the broader legal debates surrounding the Second Amendment exemplify the complex interplay between individuals’ liberties and safety, underscoring the need for a balanced approach from nuanced, informed, and forward-looking justices.

 

[1] Roskam Kelly, Questions and Answers on U.S. v. Rahimi, the Major Gun Case Before the Supreme Court During Its 2023–2024 Term, John Hopkins Bloomberg School of Public Health (Oct. 10, 2023), https://publichealth.jhu.edu/2023/questions-and-answers-on-us-v-rahimi-the-major-gun-case-before-the-supreme-court-during-its-2023-2024-term#:~:text=When%20will%20the%20Supreme%20Court,in%20June%20or%20July%202024.

[3] Domestic Violence: Firearms in Texas, Giffords Law Center (Dec. 31, 2023), https://giffords.org/lawcenter/state-laws/domestic-violence-and-firearms-in-texas/#footnote_6_16052.

[4] New York State Rifle & Pistol Association Inc. v. Bruen, Oyez, https://www.oyez.org/cases/2021/20-843.

[5] United States of America v. Zackey Rahimi, (2023), https://www.ca5.uscourts.gov/opinions/pub/21/21-11001-CR2.pdf.

[7] Carolyn Ko, Civil Restraining Orders for Domestic Violence: The Unresolved Question of “Efficacy,” https://gould.usc.edu/why/students/orgs/ilj/assets/docs/11-2%20Ko.pdf.

[8] Marcia Coyle, Supreme Court’s New Gun Test Gets Airing in a Domestic Violence Case, National Constitution Center (Nov. 6, 2023), https://constitutioncenter.org/blog/supreme-courts-new-gun-test-gets-airing-in-domestic-violence-case#:~:text=%E2%80%9CThe%20history%20of%20the%20right,she%20wrote%20in%20her%20brief.

[9] Jacquelyn Campbell et al., Risk Factors for Femicide in Abusive Relationships: Results From a Multisite Case Control Study, Am J Public Health (2003).

[10] Rachel Reed, Do People Subject to Restraining Orders Retain Second Amendment Rights to own Guns?, Harvard Law Today (Oct. 31, 2023), https://hls.harvard.edu/today/supreme-court-preview-united-states-v-rahimi-to-test-second-amendment-and-gun-control/.

[13] Steve Schuster, Wisconsin Attorney General Announces Gun Control Legislation Targeting Domestic Violence Offenders, Wisconsin Law Journal (Nov. 14, 3023), https://wislawjournal.com/2023/11/14/wisconsin-attorney-general-announces-gun-control-legislation-targeting-domestic-violence-offenders/.

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