Appeals Court Finds Federal Gun Ban on Domestic Violence Offenders Unconstitutional

Appeals Court Finds Federal Gun Ban on Domestic Violence Offenders Unconstitutional
In this file photo, a customer shops for a pistol in a gun shop in Illinois on Dec. 17, 2012. (Scott Olson/Getty Images)
Bill Pan

A federal court on Thursday ruled that it is unconstitutional to ban Americans accused of domestic violence from possessing firearms, even if they’re subjected to restraining orders.

Applying the logic the U.S. Supreme Court put forward last summer in deciding a landmark Second Amendment case, a panel of three judges on the 5th U.S. Circuit Court of Appeals unanimously agreed that the federal ban on possessing a firearm while subject to a domestic violence restraining order should no longer be considered constitutional.

In the June 2022 ruling, Supreme Court Justice Thomas Clarence set forth a new standard lower courts must follow. First, the court must determine whether the Second Amendment’s “plain text” covers an individual’s conduct. If so, then that conduct is presumptively protected, and the government must prove that its law is “consistent with this Nation’s historical tradition of firearm regulation.”

This two-step approach forms the basis of a lawsuit by Zackey Rahimi, a Texas man indicted by a federal grand jury for possessing a rifle and a pistol while under a civil protective order that he agreed to after allegedly assaulting his ex-girlfriend. That order expressly banned him from possessing any firearm.

Involved in 5 Shootings

According to court filings, Rahimi had been involved in five shootings since entering the agreement, including shooting into the home of someone who had just bought narcotics from him. After being involved in a car accident, he shot at the other driver and fled the scene, only to return and shot at the other driver’s car. He also fired his gun in the air after his friend’s credit card was declined at a restaurant.

“Rahimi, while hardly a model citizen, is nonetheless part of the political community entitled to the Second Amendment’s guarantees, all other things equal,” the appeal court judges argued.

The question then comes to whether there is any “well-established and representative historical analogue” during the Early Republican years to a modern firearm ban for someone under a domestic violence restraining order.

The analogues provided by the U.S. Department of Justice included historical laws designed to disarm “dangerous people” such as Native Americans and slaves; “going armed” laws that took guns away from people thought to pose a threat because of their perceived lack of loyalty to the state; as well as “surety” laws that allowed people to “demand surety of the peace” against someone who they had “just cause to fear,” which could result in that person being banned from carrying a gun in public or possessing guns at all.

The judges found none of the analogues convincing, saying that these laws either don’t count as analogues or are not consistent with “this Nation’s historical tradition of firearm regulation.”

“Through that lens, we conclude that [the federal law’s] ban on possession of firearms is an ‘outlier that our ancestors would never have accepted.’ Therefore, the statute is unconstitutional, and Rahimi’s conviction under that statute must be vacated,” the court declared.

Judge Cory Wilson, a Trump appointee, penned the court’s opinion (pdf). He was joined by Judges Edith Jones, a Reagan appointee; and James Ho, a Trump appointee.

In his separate concurring opinion, Ho argued that the two ideals—that the fundamental role of government in protecting citizens against violence and the individual right to keep and bear arms—are “entirely compatible with one another” in the eyes of the nation’s founders.

“When the government detains and thereby disarms a member of our community, it must do so consistent with the fundamental protections that our Constitution affords to those accused of a crime,” he wrote. “For example, the government may detain dangerous criminals, not just after conviction, but also before trial.”

“Our Founders envisioned a nation in which both citizen and sovereign alike play important roles in protecting the innocent against violent criminals. Our decision today is consistent with that vision.”