Justices Eye Intersection Of Domestic Violence, Gun Rights

By Marco Poggio | July 7, 2023, 9:16 PM EDT ·

After a landmark decision last year putting historical analysis at the forefront of determining the constitutionality of gun restrictions, the U.S. Supreme Court has teed up a new case centering on the intersection of gun rights and domestic violence, an area in which founding-era history may be thin.

Legal experts said the case, United States v. Rahimi, could have deep implications for both the safety of people who suffer abuse from intimate partners and the way restrictions on firearm possessions are scrutinized.

The appeal lands before the court a year after its controversial ruling in New York State Rifle & Pistol Association v. Bruen, in which the justices established a strict new legal standard for determining the constitutionality of gun restrictions. The new method requires the government to show that the restriction has roots in the historical record dating back to the time that the Second Amendment was ratified in 1791. If not, the restrictions face the likelihood of being struck down.

In Rahimi, the justices will examine the constitutionality of a federal provision barring people subjected to domestic violence restraining orders from possessing firearms — Section 922(g)(8), Title 18 of the U.S. Code.

Zackey Rahimi, a Texas man who was charged under the law after police found firearms and ammunition in his home while he was bound by a restraining order for knocking his girlfriend to the ground during a fight, has argued that the provision violates his Second Amendment rights.

The Fifth Circuit agreed with him in February and struck down the law in light of the Bruen decision.

"Rahimi, while hardly a model citizen, is nonetheless part of the political community entitled to the Second Amendment's guarantees," the three-judge panel ruled.

William Araiza, a professor of constitutional law at Brooklyn Law School, said the justices might think the Fifth Circuit's ruling "went too far," and that they took the case to revive the law.

"We shouldn't just assume that the court took the case because they want to expand gun rights," he said. "Maybe they do, maybe they don't."

In order for a firearm to be confiscated from a person who is the subject of a restraining order, the law requires that a judge either to find that the person constitutes a credible threat to their partner or child, or to simply forbid the person to use or threaten the use of physical force.

Araiza said that, in agreeing last week to take the case, the Supreme Court, in particular the conservative majority, might think that the bar is too low.

"It could be that the court is a little suspicious that the law makes it really easy for people to have their guns confiscated, even if they've not been judged to be dangerous," he said.

The Rahimi case will ultimately be decided through the historical analysis framework mandated by Justice Clarence Thomas' majority opinion in Bruen. The framework requires that if the Second Amendment text, which says that "the right of the people to keep and bear Arms, shall not be infringed" applies to a current law, the government has to point to analogous restrictions in the late 1700s or early 1800s to justify it.

It is unlikely that the U.S. government, which petitioned the Supreme Court in March and has the burden of defending the federal statute, will be able to find much about gun restrictions based on domestic violence in 18th century history, mainly because domestic violence wasn't considered a crime then, experts said.

"You won't find anything because women at that time were considered property," Renée Williams, the executive director of the National Center for Victims of Crime, told Law360.

At the time of the founding and for over a century afterward, domestic violence wasn't publicly discussed, let alone legislated on, experts told Law360. American law gave male individuals large control over their wives and children — marital rape wasn't a legal concept — and as late as the 1960s, domestic abuse was still treated as a private family matter.

The first legal cases involving rape popped up in the 1760s, under British law. Williams said the rationale behind those prosecutions was that rape harmed the pride of husbands and fathers, rather than the physical and mental well-being of the women. One of the first rape cases prosecuted under American law ended with an acquittal by an all-male jury in 1793.

"Domestic violence is a little more tricky to trace historically," Williams said. "Unlike rape, which was always looked down upon, domestic violence was socially acceptable and in many cases encouraged as necessary for men to maintain control of their household."

A clear connection between domestic violence and gun possession didn't appear in the law books until 1996, when Congress enacted the Lautenberg Amendment making it a felony for anyone convicted of a misdemeanor crime of domestic violence to possess firearms.

Absent a clear correlation between present and past law, the government will have to dig deep to find 18th century examples of gun regulations resembling the one at play in today's federal statute.

Brannon P. Denning, a Second Amendment expert and professor at Samford University's Cumberland School of Law, said that Justice Thomas' opinion in Bruen mandates that in the absence of a clear historical precedent, a current law must be scrutinized through comparisons that should resemble old ones as much as possible. Though he didn't give clear guidelines on how close those parallels must run.

"When history runs out, what you do is you look for analogies," Denning said. "It doesn't have to be a carbon copy, but it at least has to rhyme."

In making its case for the constitutionality of Section 922(g)(8) in its certiorari petition, the government presented analogies going back centuries. It mentioned the Militia Act of 1662, an English law that allowed the government to disarm people who were deemed "dangerous to the Peace of the Kingdom" and which survived even after the English Bill of Rights of 1689 expressly codified the right to keep and bear arms.

It also pointed to founding era laws that categorically disarmed entire groups deemed dangerous or untrustworthy, such as those who refused to swear allegiance. Other laws following the Second Amendment's ratification, meanwhile, include several 19th century laws requiring that "those threatening to do harm ... post bond before carrying weapons in public," the government's petition said.

In writing the majority opinion in District of Columbia v. Heller, the seminal 2008 case that recognized the right of private citizens to possess firearms in self-defense, Justice Antonin Scalia made clear that the right was not absolute.

The Heller decision, which described "the right of law-abiding, responsible citizens to use arms in defense of hearth and home," provides further opportunity for the government to argue that the restrictions on people subjected to restraining orders, even when missing a conviction, are justifiable. Whether the current Supreme Court would accept those arguments is unclear, experts said.

On the other hand, the ruling in Rahimi could upend numerous existing laws limiting gun possession on various grounds.

Denning said that while Scalia, a self-described "originalist" who sought to adhere as much as possible to the plain text of the Constitution, sometimes relented in his pursuits when faced with impractical consequences such as the disruption of settled law, Justice Thomas might not share those concerns.

"Justice Thomas tends to be a kind of 'Let justice be done though the heavens fall' kind of guy," Denning said. But he added that other members of the current court might have a more pragmatic approach.

In their concurring opinions in Bruen, Justices Brett Kavanaugh and Samuel Alito both pointed to a passage in the Heller decision that said that limiting gun rights for mentally ill people and felons is permissible.

Eric Ruben, a professor at Southern Methodist University's Dedman School of Law and Brennan Center for Justice fellow, said that a court case that will likely feature prominently in Rahimi is one decided in 2019 by the Seventh Circuit, Kanter v. Barr, in which then-Judge Amy Coney Barrett issued a dissenting opinion that looked at some of the same law the Fifth Circuit considered in Rahimi, but offered a different historical analysis.

While the Fifth Circuit's ruling in Rahimi said that historical firearm restrictions were focused on individuals who presented threats to the political stability of the country, in Kanter, Justice Barrett characterized the restrictions more broadly as being aimed at keeping guns out of the hands of people who were considered dangerous overall.

That difference in interpretation could be crucial to the outcome of the Rahimi case, Ruben said, because if the government convincingly argues along the lines of Justice Barrett's theory, it might end up with a stronger argument that the federal law limiting possession in domestic violence cases is permissible.

"If the principle from the founding era analogues is that you can disarm people who legislatures deemed dangerous, then those historical laws are more likely to be viewed as sufficient analogues to something like [Section] 922(g)(8)," Ruben said.

Joseph Blocher, a Second Amendment scholar at Duke University School of Law, said it was remarkable that the Supreme Court decided to hear another gun rights case so soon after Bruen, especially following nearly 10 years in which the justices repeatedly turned down petitions involving the Second Amendment.

Blocher said that might suggest that the justices are aware that the methodology they established in Bruen is causing upheaval in the lower courts, which are splitting on how to implement it.

"Rahimi is a chance for the justices to clarify, maybe improve the test that they announced in Bruen," he said. "I think it really does suggest that they're concerned with how some lower courts are applying that historical analogical test."

The fact that the Fifth Circuit invalidated a federal law is also a factor that likely drew the justices' attention, Blocher said.

In its petition asking the Supreme Court to overrule the Fifth Circuit, the government said it needs to retain its authority to disarm people who are the subject of restraining orders deeming them a danger. According to the government, the presence of a gun in a house with a domestic abuser increases the risk of homicide sixfold.

Data reported by law enforcement agencies across the country and compiled by the Bureau of Justice Statistics indicate that in 2021, 34% of female murder victims were killed by an intimate partner. By comparison, about 6% of males murdered that year were victims of intimate partner homicide.

According to the National Intimate Partner and Sexual Violence Survey, an ongoing government survey that gathers national and state-level data on domestic violence in the United States, 20 people every minute are subjected to physical violence by an intimate partner across the country.

In the most recent survey, which was completed by 15,152 women and 12,419 men between September 2016 and May 2017, about 42% of women said they were subjected to physical violence by an intimate partner in their lifetime. Nearly 5% of surveyed women reporting severe physical violence said the perpetrator used a gun on them.

Ruth Glenn, the president of public affairs at the National Coalition Against Domestic Violence, which runs a national domestic violence hotline, said the Rahimi case could result in dangerous consequences for victims of partner violence if the Supreme Court ultimately sides with the Fifth Circuit.

"There's no rationale for not ensuring that firearms are removed from abusive persons," she said. "We have protection orders for a reason. A protection order is part of due process, and removal of a firearm is a part of due process."

The U.S. government is represented by the office of Solicitor General Elizabeth Prelogar.

Rahimi is represented by James Matthew Wright of the Office of the Federal Public Defender.

The case is United States v. Zackey Rahimi, case number 22-915, in the Supreme Court of the United States.

--Editing by Alex Hubbard. Graphics by Ben Jay.

Hello! I'm Law360's automated support bot.

How can I help you today?

For example, you can type:
  • I forgot my password
  • I took a free trial but didn't get a verification email
  • How do I sign up for a newsletter?
Ask a question!