In Domestic Abuse Case, Justices Must Note Gun Law History

By Sarah Bennett | October 27, 2023, 2:39 PM EDT ·

Sarah Bennett
Sarah Bennett
On Nov. 7, the U.S. Supreme Court will hear oral arguments in U.S. v. Rahimi.[1] At issue is whether Title 18 of the U.S. Code, Section 922(g)(8), violates the Second Amendment.

Specifically, the court will decide if it is constitutional to prohibit persons subject to domestic violence restraining orders from possessing firearms.

If the Supreme Court rules that this provision is unconstitutional, there will be a weakening of gun laws and, as a result, potentially deadly consequences.

The case at hand began in February 2020, when a Texas state court issued a civil domestic violence restraining order against Zackey Rahimi based on his then-girlfriend's allegation that he dragged her through a parking lot and hit her head on his car's dashboard during an argument.

The restraining order prohibited Rahimi from harassing his ex and her child, and additionally prevented Rahimi from possessing a firearm.

Local law enforcement later searched Rahimi's home during an investigation of his involvement in five unrelated shootings that took place between December 2020 and January 2021. During their search, officers recovered a rifle and pistol.

Since the domestic violence restraining order remained in place, charges were brought in the U.S. District Court for the Northern District of Texas. Rahimi pled guilty to violating Section 922(g)(8), which prohibits individuals from owning firearms if they are "subject to a court order that ... restrains [them] from harassing, stalking, or threatening an intimate partner."

He later appealed to the U.S. Court of Appeals for the Fifth Circuit. The Fifth Circuit, applying the new test established in the Supreme Court's 2022 decision in New York State Rifle and Pistol Association v. Bruen,[2] held that Section 922(g)(8) violates the Second Amendment because the law is not "'relevantly similar' [to] historical regulations" on firearms that were in place at the time the Bill of Rights was enacted.

Prior to Bruen, the constitutionality of a gun control law was based on whether the need for the law — such as to protect public safety — outweighed the right to bear arms.

The Fifth Circuit held that since the Second Amendment did not carve out an exception to gun ownership for domestic violence offenders when the Bill of Rights was enacted, it is not constitutional for legislation to make such an exception now.

Those arguing that the Fifth Circuit should be reversed contend that the U.S. Constitution can, and must, apply to circumstances beyond those that our Founding Fathers considered in the 1700s and during Reconstruction.

While our Founding Fathers may not have recognized domestic violence as a problem in 18th-century America, it is a major issue in today's U.S.

According to the National Coalition Against Domestic Violence, nearly 20 people are abused by an intimate partner every minute in the U.S.[3] And, as the American Medical Association notes in an amicus brief filed in Rahimi, when an abuser has access to a firearm, their partner is five times more likely to be killed.[4]

Notably, an abuser's access to guns results in danger not just for intimate partners, but also for the public. As a 2021 study published in Injury Epidemiology found, nearly 60% of mass shootings between 2014 and 2019 were related to domestic violence, and "in 68.2% of mass shootings, the perpetrator either killed at least one partner or family member or had a history" of domestic violence.[5]

Additionally, the highest number of service-related fatalities among law enforcement occur in response to domestic dispute incidents.[6]

Currently, at least 31 states have enacted regulations that criminalize the possession of firearms by persons subject to a domestic violence restraining order.[7]

The statistics show that these types of criminal prohibitions protect victims. In states that have enacted these laws, rates of intimate partner homicide are reduced by 13%.[8]

Ultimately, the Rahimi case holds significant potential to affect domestic violence survivors. An affirmation of the Fifth Circuit ruling would mean that state and federal regulations prohibiting firearm possession by those subject to restraining orders would be deemed unconstitutional.

That would leave basically unfettered access to firearms to some of the most statistically dangerous people in the U.S. Indeed, the statistics show that this access has deadly consequences.

Unfortunately, the Fifth Circuit failed to correctly apply the test the Supreme Court established in Bruen to their analysis.

In the Bruen opinion, authored by Justice Clarence Thomas, the Supreme Court held that for the government to justify a regulation that "addresses a general societal problem that has persisted since the 18th century, the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment."

The Bruen rule says that a gun control law does not violate the Second Amendment if the government can "identify a well-established and representative historical analogue, not a historical twin."

While the Fifth Circuit held that there are no such analogues throughout history, that simply is not true. An analogue is not a twin or clone. By way of example, an analogue for a human hand is a crab claw. There have been numerous "crab claw" laws that prohibited certain individuals from possessing or using guns throughout American jurisprudence.

Prior to statehood, for instance, American colonies regulated when, where and by whom guns could be carried. Early colonial laws permitted law enforcement "to disarm individuals who rode about armed in terror of the peace."[9]

Later laws prohibited where guns could be stored and shot, such as a 1783 Massachusetts law prohibiting the storage of loaded firearms in homes, outhouses, stores and certain other buildings, and an 1821 Tennessee law prohibiting the firing of firearms within town limits or near certain roads.[10]

In the antebellum period, many states passed laws prohibiting the concealed carry of firearms.[11]

While it is true that domestic violence laws specifically prohibiting offenders from owning guns were not in place in 1791, when the Bill of Rights was ratified, this is certainly because domestic violence was not widely recognized as a general societal problem until about 180 years later.

However, as history and law professors write in an amicus brief, "there is a consistent history and tradition of many American colonies, states, territories, and municipalities imposing broad prohibitions on dangerous individuals possessing dangerous weapons — including firearms — to prevent harm to the public and to protect the civil order."[12]

Applying the Bruen analysis — which the Supreme Court held is not meant to be a "regulatory straightjacket" — it is very difficult to see how the court could affirm the Fifth Circuit and strike down Section 922(g)(8).

The Second Amendment is meant to protect the right to bear arms by law-abiding, responsible persons. Perpetrators of domestic violence are neither law-abiding nor responsible.

Although domestic violence was not an issue our Founding Fathers recognized, history is replete with relevantly similar laws that regulate who can and cannot own a gun.

The Second Amendment and restrictions on it are hotly contested political issues. However, regardless of the politics, the Supreme Court will likely — hopefully — uphold Section 922(g)(8), and continue to prevent those subject to domestic violence protective orders from having access to firearms.

Sarah Bennett is a principal and managing attorney at Sodoma Law.

"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email

The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.


[2] New York State Rifle & Pistol Association, Inc. v. Bruen , 142 S. Ct. 2111 (2022),


[4] Jacquelyn C. Campbell et al, Risk Factors for Femicide in Abusive Relationships: Results from a Multisite Case Control Study, 93(7) Am J Public Health 1089-1097 (2003). See also

[5] Lisa B. Geller et al, The role of domestic violence in fatal mass shootings in the United States, 2014–2019, 8 Injury Epidemiology 38 (2021),

[6] Nick Breul and Desiree Luongo, Making It Safer: A Study of Law Enforcement Fatalities Between 2010-2016, available at

[7] Elizabeth Tobin-Tyler, Intimate Partner Violence, Firearm Injuries and Homicides: A Health Justice Approach to Two Intersecting Public Health Crises, 51(1) J Law Med Ethics 64-76 (2023).

[8] April M. Zeoli et al., Analysis of the Strength of Legal Firearms Restrictions for Perpetrators of Domestic Violence and Their Associations with Intimate Partner Homicide, 187(11) Am J Epidemiology 2365–2371 (2018).

[9] Saul Cornell and Nathan DeDino, A Well Regulated Right: The Early American Origins of Gun Control, 73 Fordham L. Rev. 487, 501 (2004), available at:

[10] Id at 512-515.

[11] Id at 513.

[12] Brief for Amici Curiae Professors of History and Law in Support of Petitioner, p. 4-5, United States v. Rahimi, __ U.S. __ (2023).

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