The 5th U.S. Circuit Court of Appeals ruled on Thursday that it is unconstitutional for a state to ban a person under a domestic violence protection order from possessing firearms.
The highly conservative appeals court’s decision is the latest in a string of lower court cases invalidating 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 the court’s five other conservatives, struck down a 1913 New York state statute that greatly limited residents’ ability to obtain a concealed carry permit. But Thomas’ decision also went much further than that by stating that no law restricting the right to possess and carry a firearm is constitutional unless “it is consistent with the Nation’s historical tradition of firearm regulation,” especially in the 18th and 19th centuries.
And that is exactly how the 5th Circuit panel of Trump-appointed judges James Ho and Corey Wilson and Reagan-appointed judge Edith Jones came to strike down the federal prohibition on firearm ownership by anyone a court order bans from “harassing, stalking, or threatening” an intimate partner or their children.
In quoting from Bruen, the court says that the prohibition on firearm possession by those under domestic violence protective orders is an “outlier that our ancestors would never have accepted.”
The case comes out of Texas, where Zackey Rahimi sued to challenge his conviction for firearm possession after he went on a shooting rampage while under a domestic violence-related court order prohibiting him from possessing firearms.
In February 2020, Rahimi agreed to a civil protective order after allegedly assaulting his ex-girlfriend. This order prohibited him from possessing firearms because he remained a “credible threat” to his ex-girlfriend and their child.
Beginning in December 2020, Rahimi engaged in five separate shootings. He shot someone’s home after selling them drugs. He got into a car accident and then shot at the other driver’s car while fleeing — and then returned in a different car to shoot at the other car again. He shot at a constable’s car. And finally, he fired shots into the air at a Whataburger after his friend’s credit card was declined.
When the police finally arrested Rahimi, they found a pistol and a rifle in his home, in violation of his protective order. He eventually pleaded guilty. But after the Bruen decision, he appealed, claiming that it was unconstitutional to prohibit him from firearm possession while he was under a domestic violence protective order.
First, the 5th Circuit took on the argument that the Supreme Court’s gun rights precedents, including Bruen, acknowledge that such rights are provided to “ordinary, law-abiding citizens.” Since Rahimi is very clearly not an ordinary, law-abiding citizen, the government argues that he should not be afforded the protection of rights granted under Bruen.
But the appeals court argued that the reference to “ordinary, law-abiding citizens” in Bruen was merely meant to not draw into question “longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings” — and that while Rahimi is no law-abiding citizen, his domestic violence protective order didn’t fall into that bucket of laws.
The next question the court addressed is whether there are any historical analogues in 18th and 19th century America to a firearm prohibition for a person under a domestic violence protective order.
The analogues the Department of Justice offered included “dangerousness” laws passed to prohibit certain classes of people, including Native Americans and enslaved people, from possessing firearms; “going armed” laws that stripped persons of their firearms if they posed potential threats to the peace, and “surety” laws that allowed people to require someone who they had “just cause to fear” to provide surety that they would not harm them, which could result in a prohibition on the public carrying or possession of firearms.
In each case, the 5th Circuit judges found that these laws either were not historical analogues or were not a part of “the Nation’s historical tradition of firearm regulation.”
For the “dangerousness” laws, the court ruled that those laws “disarmed people by class or group, which is different from a prohibition following “individualized findings of ‘credible threats’ to identified potential victims,” as in the case of the domestic violence protective order law. The court also invalidated this analogue because the Founding Fathers and those who enacted laws at the country’s founding simply didn’t care that much about domestic violence.
“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 decision states.
The court tossed aside the “going armed” laws because only two states enacted them with provisions stripping offenders of their guns, and only one maintained that provision after 1795.
And while the court said the “surety” laws were the closest analogue, it ultimately ruled that they weren’t completely analogous because they enabled a defendant to post surety to avoid any restriction of their gun possession, while the law in question is a blanket ban on possession for those under domestic violence protective orders.
The failure of the Founding Fathers to care about domestic violence is no succor to those currently facing the threat of violence from an intimate partner.
Studies show that it’s five times more likely an abusive intimate partner will kill their female victim if they have access to guns.
Seventy women are shot and killed by intimate partners on average every month. In 2020, the year Rahimi entered into his protective order, 634 women were killed by intimate partners with firearms. Intimate partners or family members were killed in two-thirds of all mass shootings from 2014-2019. The rate of intimate partner gun violence jumped by 25% in 2021.
The court does state that the law in question “embodies salutary policy goals meant to protect vulnerable people in our society.” However, Bruen “forecloses any such analysis in favor of a historical analogical inquiry into the scope of the allowable burden on the Second Amendment right.”
Attorney General Merrick Garland said in a press release Wednesday night that the department would appeal the decision to the Supreme Court.