The U.S. Fifth Circuit Court of Appeals ruled Thursday that it is unconstitutional for a state to prohibit a person from owning a firearm under a domestic violence protection order.
The ultra-conservative appeals court ruling is the latest in a series of lower court cases invalidating gun control laws in the wake of the Supreme Court’s 6-3 decision in State of Rifle & Pistol Association, Inc. New york. against Bruen in 2022.
The Court’s decision in Bruen, written by Justice Clarence Thomas and joined by five other court clerks, struck down a 1913 New York state statute that severely limited residents’ ability to obtain a concealed carry permit. But the Thomas decision went much further, stating that no law restricting the right to keep and bear a firearm is constitutional unless it is “consistent with the nation’s historic tradition of regulating firearms.” ”, especially in the 18th and 19th centuries.
And that’s exactly how the 5th Circuit panel of Trump-nominated Judges James Ho and Corey Wilson and Reagan-nominated Judge Edith Jones ended up striking down the federal ban on the possession of firearms by anyone, by order judicial. prohibits “harassment, stalking, or threats.” . ” an intimate partner or their children.
Citing Bruen, the court said banning firearms from those under domestic violence protection orders is “an outward appearance that our forefathers would never have accepted.”
The case comes from Texas, where Zackey Rahimi is suing to challenge his firearms conviction after he shot while under a domestic violence restraining order that prevented him from possessing firearms.
In February 2020, Rahimi accepted a civil defense order after allegedly assaulting his ex-girlfriend. That order banned him from possessing firearms because he remained a “credible threat” to his ex-girlfriend and their child.
In December 2020, Rahimi was involved in five separate shootings. He shot up someone’s house after selling them drugs. He got into a car accident and then shot the other driver’s car while fleeing, then got back into another car to shoot the other car again. He knocked over a policeman’s car. And finally, he opened fire on a Whataburger after his friend’s credit card was declined.
When police finally arrested Rahimi, they found a handgun and a rifle in his home, violating his order of protection. In the end he pleaded guilty. But after Bruen’s decision, she appealed, arguing that it was unconstitutional to prevent him from possessing firearms while under a domestic violence protection order.
First, the 5th Circuit accepted the argument that Supreme Court precedents on gun rights, including Bruen, recognize that such rights are granted to “ordinary, law-abiding citizens.” Because Rahimi is clearly not an ordinary law-abiding citizen, the government argues that he should not be afforded the protection of Bruen’s rights.
The appeals court, however, held that the reference to “ordinary law-abiding citizens” in Bruen was intended only not to challenge “long-standing prohibitions on the possession of firearms by felons and the mentally ill or laws prohibiting the carrying of firearms in sensitive places like schools and government buildings” — and that even though Rahimi is not a law-abiding citizen, his domestic violence protection order did not fall under that basket of laws.
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The next question for the court is whether there are historical analogs in 18th and 19th century America to the prohibition of firearms on a person subject to a domestic violence protection order.
Analogies offered by the Justice Department included “dangerousness” laws enacted to prohibit certain classes of people, including Native Americans and enslaved people, from owning firearms; “gun” laws that deprived people of their firearms if they were potential threats to the peace, and “warranty” laws that allowed people to ask someone they had a “reasonable fear” to give them a guarantee that they would do them no harm, which could result in a ban on carrying or possessing firearms in public.
In each case, the 5th Circuit judges found that these laws either had no historical analogues or were not part of “the nation’s historic tradition of firearms regulation.”
For “dangerousness” laws, the court ruled that those laws “disarm people by class or group, which is different from a ban resulting from “individualized assessments of “credible threats” to identified potential victims,” as in the case of domestic violence . protection order law. The Court also invalidated that analogy because the Founding Fathers and those who enacted the country’s founding laws simply didn’t care much about domestic violence.
“The purpose of these “dangerousness” laws was to maintain political and social order, not to protect an identified person from the specific threat posed by another,” the decision said.
The Court struck down the “pistol” laws because only two states had enacted them with provisions disarming felons, and only one retained the provision after 1795.
And while the court said bail laws were the closest analogue, it ultimately ruled they weren’t quite analogous because they allowed a defendant to post bond to avoid any gun restrictions, in while the law in question is a blanket. banning detention for those under domestic violence protection orders.
The failure of the Founding Fathers to worry about domestic violence is of no help to those facing the threat of intimate partner violence today.
Studies show that an abusive intimate partner is five times more likely to kill the 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 his protective order, 634 women were killed from intimate partners with firearms. Intimate partners or family members were killed in two-thirds of all mass shootings from 2014 to 2019. Intimate partner gun violence rate increased by 25% in 2021.
The court said the law in question “embodied sound policy objectives designed to protect the vulnerable in our society.” However, Bruen “forecloses any such analysis in favor of a similar historical inquiry into the extent of the permissible burden on Second Amendment rights.”
The government can appeal this decision to the Supreme Court.
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