Can the Government Prohibit a Person Subject to a Domestic Violence Protective Order from Possessing a Firearm?
Can the Government Prohibit a Person Subject to a Domestic Violence Protective Order from Possessing a Firearm?
In February 2020, a Texas court granted C.M. a domestic violence protective order against Zackey Rahimi, effective for two years. About a year later, in investigating a separate spate of shootings by Rahimi, police found a pistol, a rifle, magazines, and ammunition in Rahimi’s home. Rahimi was convicted of possessing a firearm while under a domestic violence protective order. In United States vs. Rahimi, the Court weighs the question: Can the government prohibit a person subject to a domestic violence protective order from possessing a firearm?
Argument Date: November 7, 2023 From: The Fifth Circuit
by Steven D. Schwinn
University of Illinois Chicago School of Law, Chicago, IL
Under New York State Rifle & Pistol Association, Inc. v. Bruen, 142 S. Ct. 2111 (2022), when the government regulates an individual right to keep and bear arms, the government must demonstrate that its regulation “is consistent with the Nation’s historical tradition of firearm regulation” in order to withstand Second Amendment scrutiny. In other words, the government must show that the current regulation of firearms is consistent with prior regulations in terms of the burdens they impose and their justifications. Rahimi contends that 18 U.S.C. § 922(g)(8) fails this test.
Does the Second Amendment prohibit the government from criminalizing the possession of firearms by persons subject to domestic violence protective orders?
In December 2019, Zackey Rahimi had an argument with his girlfriend, C.M., in a parking lot. Rahimi threatened to take away the child they shared. When C.M. tried to leave, Rahimi grabbed her by the wrist and knocked her to the ground. Rahimi dragged C.M. back to his car and pushed her inside, causing her to hit her head on the dashboard. Realizing that a bystander saw his assault, Rahimi retrieved a gun and fired at the witness. In the meantime, C.M. escaped and fled. Rahimi later called C.M. and threatened to shoot her if she told anyone about the assault.
In February 2020, a Texas state court granted C.M. a protective order against Rahimi. The court found that Rahimi had “committed family violence” and that violence was “likely to occur again in the future.” The order prohibited Rahimi from committing family violence and from threatening, harassing, or approaching C.M. or her family. It also suspended Rahimi’s handgun license, prohibited him from possessing a firearm, and warned him that his possession of a firearm while the order remained in effect could be a federal felony. The order was good for two years. Rahimi signed an acknowledgment that he received a copy.
Rahimi repeatedly violated the order. He attempted to contact C.M. several times. He approached her house in May 2020, prompting police to arrest him. And he threatened another woman with a gun in November 2020, resulting in charges against him for aggravated assault with a deadly weapon.
In addition, Rahimi also fired a gun in five different incidents between December 2020 and January 2021. First, he fired an AR-15 rifle into the house of a person who bought drugs from him. Next, he shot at another driver several times after a collision. Third, he fired a gun in a neighborhood while children were present. Fourth, after a truck flashed its headlights at Rahimi on a highway, Rahimi cut across the highway, followed the truck off an exit, and fired multiple shots at another car that was traveling behind the truck. And finally, he fired multiple shots in the air after a fast-food restaurant declined a friend’s credit card. (Rahimi disputes some or all of these facts and argues that they are the subject of pending prosecutions. In any event, he says that they are irrelevant to his criminal liability for violation of Section 922(g)(8).) Officers identified Rahimi as a suspect in those shootings, secured a warrant, and searched his home. They found a .45-caliber pistol, a .308-caliber rifle, magazines, ammunition, and a copy of the protective order.
A federal grand jury indicted Rahimi for violating 18 U.S.C. § 922(g)(8). That provision prohibits individuals subject to certain domestic violence protective orders from possessing a firearm. At the time of Rahimi’s indictment, a knowing violation of the provision came with up to ten years of imprisonment. (Congress later increased the maximum to 15 years.)
Section 922(g)(8) requires the prosecution to prove three elements. First, it requires that a court provided notice and a hearing, where a “person had an opportunity to participate,” before issuing an order. Next, it requires that the order must prohibit the person from “harassing, stalking, or threatening an intimate partner,” the person’s child, or an intimate partner’s child, “or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child.” Finally, it requires that the order either (1) include a finding that the person poses a “credible threat to the physical safety” of the partner or child or (2) explicitly “prohibits the use, attempted use, or threatened use of physical force” against the partner of a child “that would reasonably be expected to cause bodily injury.”
C.M.’s order against Rahimi satisfied all three elements. (Rahimi says that he did not “participate” in a “hearing.” Instead, he says that he simply agreed with prosecutors on boilerplate language for the order.) Nevertheless, Rahimi moved to dismiss the indictment, arguing that Section 922(g)(8) violated the Second Amendment. The district court denied Rahimi’s motion, citing a 2020 case in which the Fifth Circuit found the section constitutional. Rahimi then pleaded guilty, and the court sentenced him to 73 months of imprisonment, followed by three years of supervised release.
The Fifth Circuit affirmed, also citing the 2020 precedent. But after the Court decided New York State Rifle & Pistol Association, Inc. v. Bruen, 142 S. Ct. 2111 (2022), the Fifth Circuit withdrew its opinion and reversed. The Fifth Circuit later withdrew that opinion and issued an amended opinion that again reversed. The government brought this appeal.
The Court ruled in Bruen that when the government regulates an individual’s right to keep and bear arms, the government must demonstrate that its regulation “is consistent with the Nation’s historical tradition of firearm regulation” in order to withstand Second Amendment scrutiny. This means that the government must show that the current regulation on firearms is consistent with prior regulations. According to the Court, the government doesn’t have to point to a “historical twin.” Instead, this “analogical reasoning requires only that the government identify a well-established and representative historical analogue.” In comparing the challenged regulation to historical ones, courts must assess “whether modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified.”
The government argues that history and tradition support the government’s ability to disarm “persons who are not law-abiding, responsible citizens.” As to history, it claims that English law allowed the government to disarm individuals who were “dangerous” or not “peaceable.”
It says that “Second Amendment precursors proposed during the Founding Era” limited the right to keep and bear arms only to “honest and lawful” citizens or those who posed no “danger of public injury.” And it contends that 19th-century commentators “recognized the government’s authority to disarm individuals who were not ‘orderly,’ ‘peaceable,’ or ‘well-disposed.’”
As to tradition, the government asserts that “American legislatures have long disarmed individuals whom they have found to be dangerous, irresponsible, or otherwise unfit to possess arms,” including loyalists (during the Revolutionary War), “minors, intoxicated persons, and various vagrants” (during the 19th century), and “felons and persons with mental illnesses” (during the 20th century). The government says that this tradition reflects the same “enduring principle: Legislatures may disarm those who are not law-abiding, responsible citizens.”
The government argues that Section 922(g)(8) falls squarely within this history and tradition. It says that individuals who are subject to domestic violence protective orders “pose an obvious danger to their intimate partners because guns often cause domestic violence to escalate to homicide and because abusers often use guns to threaten and injure their victims.” It claims that such individuals pose a danger to others as well. Moreover, the government contends that Section 922(g)(8) contains adequate safeguards to ensure that the provision applies only “to a particularly dangerous and irresponsible subset of persons subject to protective orders.”
The government notes that “at least 48 States and territories” have adopted laws like Section 922(g)(8). The government says that this reflects a “consensus… that persons subject to Section 922(g)(8) are among those who can permissibly be disarmed because they cannot be trusted with firearms.” As a result, it claims that Section 922(g)(8) is different than “the outlier laws found unconstitutional in” the Court’s most recent Second Amendment cases.
Finally, the government argues that the Fifth Circuit got it wrong. The government says that the Fifth Circuit erroneously focused on the Second Amendment’s right of “the people” to keep and bear arms, and Rahimi’s place within “the people.” But the government claims that “just as Congress may ban dangerous and unusual weapons regardless of whether they qualify as ‘arms,’ so too it may disarm persons who are not law-abiding, responsible citizens regardless of whether they are among ‘the people.’” Moreover, the government contends that the Fifth Circuit erroneously concluded “that laws disarming domestic abusers did not exist at the Founding.” But the government says that this approach ignores the Court’s “emphatic reject[ion]…for an exact historical match.” Viewed “within the broader tradition of firearm regulation… Section 922(g)(8) fits comfortably within the tradition of disarming individuals who are not law-abiding, responsible citizens.”
Rahimi counters that the government failed to show that Section 922(g)(8) is supported by history and tradition. According to Rahimi, “the Government’s exhaustive survey turned up nothing like Section 922(g)(8) in the American tradition.” While he acknowledges that the Court does not require a “historical twin,” he says that the government hasn’t even come close.
Instead, Rahimi argues that the government “conflates every type of firearm restriction, regulation, confiscation, and ban under the all-purpose umbrella of ‘disarmament,’” when those laws actually “targeted people outside the political community.” But Rahimi says that he’s part of “the people” covered by the Second
Amendment. In addition, he claims that the government “repeatedly describes offhanded and tentative statements in this Court’s opinions as ‘precedent.’” Rahimi says that the government’s approach would allow Congress “carte blanche to disarm and punish the exercise of a fundamental, enumerated right.”
This is the first case where the Court will apply its new “history-and-tradition” test from Bruen. And wow, it’s a whopper. The case will force the Court to say just how flexible, or not, its “analogical” approach is—and whether it can reason its way out of the corner it appears to have painted itself in.
On the one hand, if the Court adopts a narrow, rigid approach, it will likely affirm the Fifth Circuit and strike the law. After all, it’s hard to argue that our Nation has a history and tradition of regulating firearm possession by individuals under a domestic violence protective order. (Taking the long view, as the Court does, we hardly have a history and tradition of domestic violence protective orders at all, much less a history and tradition of regulation of individuals under such orders.)
On the other hand, as a practical matter, it’s equally hard to see how the Court could strike a law that so obviously protects domestic violence survivors. But if the Court upholds the law, it’s (again equally) hard to see how it might stretch its “history-and-tradition” approach to encompass this law, while still retaining some boundaries on the government’s power to disarm certain other classes of dangerous persons.
In short, this case presents a real test for the Court. It’s a fully predictable test, and one of the Court’s own making, based on its novel “history-and-tradition” approach from Bruen. (As an aside: this case isn’t the only problem wrought by Bruen. The lower courts have struggled mightily to apply the “history-and-tradition” test to a whole range of Second Amendment challenges. This makes some sense, as some courts have pointed out, given that courts aren’t historians.) Now that this case reveals the shortcomings of the Bruen approach, the Court will have to squirm its way out, one way or the other.
The government offers a solution: we have a history and tradition of disarming those who are not “responsible, law-abiding citizens.” But it’s not clear that this Court will interpret our history and tradition that way. And even if it does, it’s not at all clear that the Court could fashion a refined approach that would give the lower courts adequate guidance in future hard cases.
This case illustrates as well as any the difficulties and challenges with the Bruen approach. And it’s not clear that this case will do any better at solving them.
ATTORNEYS FOR THE PARTIES
For Petitioner United States (Elizabeth B. Prelogar, Solicitor General, 202.514.2217)
For Respondent Zackey Rahimi (James Matthew Wright, 806.324.2370)
In Support of Petitioner United States
In Support of Respondent Zackey Rahimi
In Support of Reversal
In Support of Neither Party