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Supreme Court Considers Challenge to Law Prohibiting Guns for People Under Restraining Orders

By T. Evan Eosten Fisher, Esq. | Last updated on

Earlier this month, the U.S. Supreme Court heard oral arguments in a case that pits protections for victims of domestic abuse against rights ensured by the Second Amendment.

The case, U.S. v. Rahimi, has been closely watched by gun rights activists, who have seen the Supreme Court expand its interpretation of Second Amendment protections over the last fifteen years. The case has also attracted the attention of law enforcement communities who have a strong interest in keeping restrictions on gun ownership in place for suspected domestic abusers.

The case turns on whether a federal law, 18 U.S.C. § 922, can punish the possession of a firearm by an individual who is subject to a restraining order against a domestic partner, spouse, or other family member. Federal prosecutors charged Zackey Rahimi with a violation of the statute, but the Fifth Circuit Court of Appeals determined that the law violated the right to bear arms protected by the Second Amendment.

Evolving Interpretations of the Second Amendment

The Second Amendment of the Constitution is regarded as a cornerstone of the Bill of Rights, ratified in 1791, but its exact meaning has been a subject of intense debate among modern legal theorists. The exact text of the Amendment reads as follows:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

For decades, the Supreme Court declined to meaningfully define the scope of the right to bear arms. The landmark decisions in D.C. v. Heller, and McDonald v. Chicago, in 2008 and 2010, struck down state and local restrictions on handgun ownership and finally made it clear that neither the federal government, nor state and local governments, could infringe upon an individual's right to possess a firearm and use it for lawful purposes, such as target shooting, hunting, or self-defense.

Last year, in New York State Rifle and Pistol Association v. Bruen, the Supreme Court struck down a New York law that placed strict requirements on those seeking licenses to carry firearms outside of the home, reasoning that those restrictions were not consistent with the historical tradition of firearm regulation contemplated by the framers of the constitution. This represented a new standard for assessing the constitutionality of gun laws because lawmakers could no longer justify restrictions on firearms simply because those restrictions advanced an important governmental interest.

Brady Bill Restriction under Attack

Several decades before Bruen, President Clinton signed the Brady Bill into law, which introduced a system for background checks for gun purchases and included prohibitions on gun ownership for certain types of people, including convicted felons, fugitives from justice, and people committed to mental institutions. The law was named for James Brady, the press secretary who was shot and paralyzed in the 1981 assassination attempt against President Reagan.

The specific provision challenged by Rahimi applies to any person who is subject to a court order that restrains that person from harassing, stalking, or threatening a partner or family member and includes a court finding that the person represents a credible threat to the safety of that person or specifically restrains use or threats of physical force against that person. The prohibition only applies to people who received notice of the hearing and had an opportunity to contest the finding. Violations are felony-level offenses, punishable by lengthy prison sentences.

Fifth Circuit Decision Expands the Right to Bear Arms

Rahimi was indicted by a federal grand jury after he was found with a pistol and a rifle while subject to a protective order arising from domestic violence allegations against him. The terms of the order not only met the criteria of the federal law, they also explicitly prohibited him from possessing a firearm. Rahimi contested the charge in federal district court but then pled guilty after his arguments were rejected by the judge. He then challenged his conviction on appeal to the Fifth Circuit Court of Appeals, arguing that the law's criminal penalty for gun ownership violated the Second Amendment.

The Fifth Circuit initially upheld Rahimi's conviction, but after the Supreme Court's decision in Bruen was released, the appeals court set aside its original opinion. Citing Bruen's change to the interpretation of the Second Amendment, a panel of judges found that 18 U.S.C. 922(g)(8) was not consistent with the historical tradition of firearm regulation. As a result, the new opinion found that the portion of the law used to convict Rahimi was unconstitutional, and his conviction was vacated.

The Department of Justice appealed that decision, bringing the matter to the Supreme Court.

Oral Argument Reveals Possibility of Restoring Restrictions on Gun Ownership for Dangerous People

Although the Roberts Court has ruled against gun restrictions previously, the questions asked by the justices revealed some sympathy for the government's position that the law should be upheld.

Even though the nation's historical tradition did not include restrictions to protect victims of domestic violence, the government's position that gun ownership could historically be restricted from people determined to be dangerous or otherwise unsafe seemed to gain traction with the justices.

On the other hand, the Court seemed skeptical of the position advanced by Rahimi's lawyer, that Bruen disallowed the domestic violence order to be used as a basis for a restriction because no similar law existed at the time of passage of the Second Amendment.

The justices were wary of expanding the definitions of what might make someone be considered too dangerous or irresponsible to possess guns, dismissively mentioning examples such as speeding or failing to recycle, but they seemed receptive to the actual scope of the law, which only becomes applicable after a hearing judge finds the necessity for a protective order.

A published decision in the case could take several months to arrive. Regardless of the outcome, the opinion in Rahimi, when it is released, will be closely studied by constitutional scholars who are scrambling to define the contours of the Bruen decision and how the Second Amendment restrains governments from regulating gun ownership.

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