The Second Amendment protects an individual’s right to possess a gun while under a restraining order for domestic violence, the 5th U.S. Circuit Court of Appeals ruled on Thursday in a decision with alarming implications for gun violence in America. Although mass shootings and intimate partner murders are heavily linked to domestic violence, the 5th Circuit held that the government cannot disarm alleged abusers solely because they are subject to a civil protective order. The court vacated the conviction of a man, Zackey Rahimi, who possessed a gun after allegedly assaulting his girlfriend, and invalidated the federal law that prevents alleged abusers from bearing arms. If upheld, its decision will prove lethal to countless Americans who rely on the government to protect them from intimate partner violence.
Thursday’s ruling in U.S. v. Rahimi springs from the Supreme Court’s recent decision in last year’s Bruen, which dramatically expanded the scope of the Second Amendment. Justice Clarence Thomas’ majority opinion in Bruen held that all restrictions on the right to “armed self-defense” are presumptively unconstitutional. The only gun safety laws that pass legal muster, Thomas declared, are those with “historical analogues” from 1791 (when the Second Amendment was ratified) or 1868 (when it was applied to the states). This sea change in the law created a flood of litigation in the lower courts as litigants tried to prove that modern gun restrictions were not deeply rooted in American history. Courts have been receptive, relying on Bruen to strike down a slew of laws targeting the criminal use of firearms.
The law in question here is a federal statute that bars individuals from possessing guns if they are “subject to a court order that restrains [them] from harassing, stalking, or threatening an intimate partner.” The case began in 2020, when Rahimi’s ex-girlfriend accused him of assaulting her. A Texas court then issued a civil protective order restraining Rahimi from harassing, stalking, or threatening his ex-girlfriend (or their child). Rahimi agreed to this order, which also explicitly barred him from possessing a gun. Yet officers later discovered a rifle and a pistol in his home. Prosecutors then charged him with unlawfully possessing the guns and secured a conviction.
After the Supreme Court issued Bruen, Rahimi argued that his conviction was unconstitutional. In the district court, Justice David Counts—a Donald Trump appointee—agreed, striking down the federal law. And on Thursday, a three-judge panel of the 5th Circuit upheld Counts’ decision. The panel was composed of two Trump appointees, Judges Cory Wilson and James Ho, as well as the arch-conservative Ronald Reagan appointee Judge Edith Jones.
In his opinion for the court, Wilson declared that there is no deeply rooted tradition of disarming individuals under a restraining order for domestic abuse. The modern law “embodies salutary policy goals meant to protect vulnerable people in our society,” he wrote, but courts have no power to weigh “those policy goals’ merits.” They may only look to U.S. history. And the record compiled in this case failed to prove that domestic abusers were routinely disarmed in the 18th and 19th centuries. “Our ancestors,” Wilson wrote—meaning the white men who wrote the laws—“would never have accepted” such a practice.
Wilson acknowledged that people deemed “dangerous” were denied the right to bear arms, including slaves and Native Americans. But, he asserted, these people were disarmed “by class or group, not after individualized findings of ‘credible threats’ to identified potential victims.” Moreover, the purpose of disarming “dangerous” people was “the preservation of political and social order, not the protection of an identified person from the specific threat posed by another.” Thus, these older laws are not “relevantly similar” to the modern statute under Bruen. Wilson also speculated about a parade of horribles if the government could remove “irresponsible” or “non-law abiding people” from “the scope of the Second Amendment.”
“Could speeders be stripped of their right to keep and bear arms?” Wilson asked. “Political nonconformists? People who do not recycle or drive an electric vehicle?”
Of course, domestic abusers are categorically different from speeders and dissidents. There is a reason why the government disarms them today: They are at exponentially heightened risk of using their gun to commit murder. As I wrote in November, an abuser’s access to guns makes it five times more likely that a woman will be killed. More than half of intimate partner homicides are committed with guns. An American woman is shot and killed by an intimate partner every 14 hours. Domestic abusers are also disproportionately likely to commit mass shootings: Nearly 60 percent of mass shootings between 2014 and 2019 were related to intimate partner violence, while 68 percent of mass shooters had a history of domestic violence.
There is also a reason why the government did not disarm domestic abusers in the past: Domestic violence was not deemed a criminal offense for most of American history. When women were denied equal citizenship, the men who wrote and enforced the laws viewed wife-beating as a mere “familial affair” beyond the province of the courts. Legislators and judges alike saw domestic abuse as a natural part of family life, to be dealt with privately and punished only in the most extreme and murderous situations. It’s no surprise, then, that the historical record shows no history of laws keeping guns out of the hands of abusers. The very notion that men should not be allowed to abuse their wives and girlfriends is a modern belief that only developed in the 20th century.
Yet Bruen handcuffs our laws to a past era, when domestic abuse was tolerated and even smiled upon by the authorities. The 5th Circuit’s decision is dangerous and extreme, but it also offered a potentially plausible reading of the Supreme Court’s reasoning in Bruen. Wilson, Ho, and Jones are surely delighted to strike down the law in question; Ho made this clear in a gratuitous concurrence explaining that he was “pleased” to uphold Rahimi’s “civil rights.” But SCOTUS left the door wide open for decisions like this one, almost inviting lower courts to stretch the precedent as far as they could. The 5th Circuit has arguably followed Bruen to its lethal, logical conclusion. If the Supreme Court truly meant what it said, then Americans today have no power to disarm those men who are most likely to murder their wives, girlfriends, and children.
