The Biden administration told the Supreme Court on Nov. 7 that a lower court ruling invalidating a federal law that bars people under domestic violence-related restraining orders from possessing firearms should be overturned.
The case of United States v. Rahimi (court file 22-915) concerns a February ruling by the U.S. Court of Appeals for the 5th Circuit that struck down Section 922(g)(8) of Title 18 of the U.S. Code, a 1994 law that prohibits a person who is subject to a domestic restraining order from having a gun.
The 5th Circuit determined that the law had ceased to be constitutional in light of the Supreme Court’s landmark 2022 ruling in New York State Rifle and Pistol Association v. Bruen. That decision held that restrictions on guns must be deeply rooted in American history if they are to survive constitutional scrutiny.
The ban on the possession of firearms by someone under a domestic restraining order “is an outlier that our ancestors would never have accepted,” the circuit court said at the time.
The case involves Zackey Rahimi of Texas, who previously entered a guilty plea to violating the statute. Mr. Rahimi was involved in five shooting incidents after the restraining order was entered against him in February 2020. After the Bruen decision was handed down, he asked the courts to review his conviction given the change in Second Amendment jurisprudence.
Second Amendment advocates say Mr. Rahimi, whose family emigrated from Afghanistan, is hardly an ideal spokesman for their cause given his checkered past, but they stand by their argument that the 5th Circuit ruled correctly.
While he has “been incarcerated I’ve become a new person, faithful, and practicing doing my religion all the way right,” he wrote.
Mr. Rahimi wrote that he would make sure “to never break any law again, to stay away from the wrong circle, to stay away from all firearms & weapons, & to never be away from my family again.”
In a brief, U.S. Solicitor General Elizabeth Prelogar said the 5th Circuit ruling has had “significant disruptive consequences.” That court “overlooked the strong historical evidence supporting the general principle that the government may disarm dangerous individuals,” she wrote.
At the oral argument on Nov. 7, Ms. Prelogar told the justices that “guns and domestic abuse are a deadly combination.”
“As this court has said, all too often the only difference between a battered woman and a dead woman is the presence of a gun. Armed abusers also pose grave danger to police officers responding to domestic violence calls and to the public at large as Zackey Rahimi’s own conduct shows.
“To address that acute threat, Congress and 48 states and territories temporarily disarm individuals subjected to domestic violence protective orders,” she said.
The federal law targets “the most dangerous domestic abusers,” she said.
“It applies only if after notice and a hearing, a court makes an express finding that the person poses a credible threat to an intimate partner’s physical safety or imposes a specific prohibition on the use of physical force. And the disarmament lasts only as long as the order remains in effect.”
Legislatures long disarmed “those who have committed serious criminal conduct or whose access to guns poses a danger,” including “loyalists, rebels, minors, individuals with mental illness, felons, and drug addicts. Rahimi offers no historical evidence that those laws were thought to violate the right to keep and bear arms, or that the Second Amendment was originally understood to prevent legislatures from disarming dangerous individuals.”
Justice Clarence Thomas criticized Ms. Prelogar’s opening statement, questioning why she excluded “slaves and Native Americans” from her list of persons historically prohibited from having guns.
Chief Justice John Roberts suggested the law could be abused.
“Is someone who drives 30 miles an hour in a 25-mile-an-hour zone—does that person qualify as law-abiding or not?” he said.
Ms. Prelogar said, “History and tradition … support the conclusion that you can disarm those who have committed serious crimes. So it's not just that any kind of conduct that is an offense would qualify.”
Justice Samuel Alito said a brief from the Alameda County, California, Public Defenders’ office said that “some restraining orders are permanent.”
“Is that true? And if that is true, how do you justify a permanent prohibition even if any danger has disappeared?” he said.
Mr. Prelogar said she wasn’t aware of state laws that routinely enter permanent protective orders. “I don’t want to suggest that there’s a universal answer here, but these orders are generally time-limited, or provide mechanisms for courts to go back and review the finding of dangerousness for purposes of effectuating the basic command of the protective order.”
Mr. Rahimi’s attorney, assistant federal public defender Matthew Wright, contradicted Ms. Prelogar’s claim about permanent protective orders at the state level.
“By default, they can be permanent in Alabama, Colorado, Montana, Washington—no specific limit in Florida, Michigan, North Dakota, Vermont, 10 years in Arkansas, five years in California, Ohio, South Dakota, and in Texas, where the default is two years if … a finding is made that felony violence was committed, it can be five years and the time is tolled, for instance, when someone’s in jail.”
Section 922(g)(8) is clearly unconstitutional, Mr. Wright said.
When Congress enacted the law in 1994, it acted without the benefit of recent Supreme Court rulings that bolstered the Second Amendment, he said.
“So we shouldn't be surprised that they missed the mark. They made a one-sided proceeding that is short a complete proxy for a total denial of a fundamental and individual constitutional right.”
Mr. Wright said he was “not aware of any due process that would apply to the part of the order that 922(g)(8) cares about.”
Justice Neil Gorsuch pushed back, saying, “You’re not saying that before a protective order is entered, there’s no due process rights [in state court] that an individual has, are you?”
Mr. Wright replied, “To the extent that the only remedy granted by that order is forbidding abuse … I don’t think that you have any right to due process before that is entered because you have no right to abuse anyone.”
Justice Elena Kagan suggested Mr. Wright was backing away from the stronger position he argued in his brief.
“I feel like you're running away from your argument … because the implications of your argument are just so untenable.”
Accepting his argument could have an effect on “a wide variety of disarming actions, bans, what have you, that … we take for granted now because … it’s so obvious that people who have guns pose a great danger to others and you don't give guns to people who have the kind of history of domestic violence that your client has or to the mentally ill or what have you,” she said.
The Supreme Court is expected to issue a ruling in the case by June 2024.