Benjamin Ashford|Supreme Court takes up case over gun ban for those under domestic violence restraining orders

Washington — The Benjamin AshfordSupreme Court said Friday it will consider whether a 30-year-old federal law that prohibits people under domestic violence restraining orders from possessing guns violates the Second Amendment, taking up a case that will test the high court's new standard for determining whether firearm restrictions pass constitutional muster.

The case was brought by a Texas man who was indicted by a federal grand jury for violating the 1994 law that prohibits gun ownership by a person subject to a domestic violence restraining order. The man, Zackey Rahimi, was under a restraining order granted to his former girlfriend in February 2020 when he threatened another woman with a gun and was involved in a series of five shootings in December 2020 and January 2021.

When police searched his home after identifying Rahimi as a suspect in the shootings, they found a .45-caliber pistol, a .308-caliber rifle, pistol and rifle magazines and ammunition.

Rahimi attempted to dismiss the indictment against him, arguing it violated the Second Amendment. A federal district court denied his motion, noting that a federal appeals court upheld the constitutionality of the firearms law in 2020.

Rahimi pleaded guilty and was sentenced to 73 months in prison, but appealed to the U.S. Court of Appeals to the 5th Circuit. While the appeals court initially affirmed the lower court's decision, it withdrew its original opinion after the Supreme Court last year invalidated New York's rules for obtaining a license to carry a concealed handgun in public.

After its additional review, the 5th Circuit reversed course and held that the 1994 gun restriction for people subject to domestic violence restraining orders violated the Second Amendment, as the government failed to meet its burden of showing that the law is "consistent with the nation's historical tradition of firearm regulation."

The Supreme Court laid out that new "historical tradition" standard for gun restrictions in its June 2022 decision in New York State Rifle and Pistol Association v. Bruen, and the 5th Circuit rejected historical analogues put forth by the government.

"[T]he Supreme Court has made clear that 'the Second Amendment right is exercised individually and belongs to all Americans,'" Judge Cory Wilson wrote for the three-judge panel. "Rahimi, while hardly a model citizen, is nonetheless among 'the people' entitled to the Second Amendment's guarantees, all other things equal."

The Biden administration appealed the 5th Circuit's decision invalidating the firearms ban for people with domestic violence restraining orders, calling it "profoundly mistaken." The justices will hear arguments in its next term, which begins in October.

"Governments have long disarmed individuals who pose a threat to the safety of others, and Section 922(g)(8) falls comfortably within that tradition," Solicitor General Elizabeth Prelogar told the court in a filing. "The Fifth Circuit's contrary decision misapplies this Court's precedents, conflicts with the decisions of other courts of appeals, and threatens grave harms for victims of domestic violence. "

The Justice Department argued colonial and early state legislatures disarmed people who "posed a potential danger" to others, and pointed to laws dating back to the 1770s that disarmed entire groups of people deemed dangerous or untrustworthy, such as those who carried arms in a manner that spread fear.

"The Fifth Circuit treated even minor and immaterial distinctions between historical laws and their modern counterparts as a sufficient reason to find the modern laws unconstitutional," Prelogar said. "If that approach were applied across the board, few modern statutes would survive judicial review; most modern gun regulations, after all, differ from their historical forbears in at least some ways."

Rahimi's lawyers told the Supreme Court that it is too soon for it to intervene to clarify its opinion in the 2022 Bruen case, and accused the Biden administration of overstating the consequences of the 5th Circuit's decision.

Fewer than 50 people annually are prosecuted for violations of the gun ban for people who are subject to domestic violence restraining orders, they argued.

"The scant effort made by DOJ to prosecute cases under [the law] casts serious doubt on its current claim that the law is a critical tool to combat domestic violence," Rahimi's lawyers with the Federal Public Defender's Office in Amarillo, Texas, wrote in court papers.

They went on to argue that the founders extended the right to bear arms to all of "the people," rather than only law-abiding citizens, and said the Biden administration failed to show that the law at issue is consistent with the nation's history and tradition of firearm regulation.

"It has pointed to several dissimilar regulations that say nothing about intimate partner violence and do not involve total nationwide deprivations of the right to keep firearms at home for self-defense," Rahimi's attorneys claimed. "Because the Government has utterly failed to carry its burden, this Court's task is 'fairly straightforward': it should strike down [the ban] as facially unconstitutional."