Trigger Tragedies: Why the Lives of Domestic Violence Victims Rest in the Hands of the Supreme Court

by Madeline Brown, Associate Member, University of Cincinnati Law Review Vol. 92

I. Introduction

While subject to a civil protective order issued following his alleged assault of his ex-girlfriend – an order restraining him from harassing, stalking, or threatening the alleged victim and their child – Zachey Rahimi was involved in five shootings in Texas between December 1, 2020, and January 7, 2021.¹ Over the course of six weeks, Rahimi: (1) fired multiple shots into a home following a drug deal; (2) shot at another driver after being involved in a car accident; (3) returned to the scene of the accident in a different vehicle and shot at the other driver’s car; (4) fired at a peace officer’s vehicle; and (5) fired multiple shots in the air after a friend’s credit card was declined at a Whataburger restaurant.² At the time of these shootings, Rahimi was expressly prohibited from possessing a firearm under the civil protective order imposed against him.³

On November 7, 2023, the United States Supreme Court will hear oral arguments in the case of United States v. Rahimi.⁴ This past March, the Fifth Circuit Court of Appeals issued a decision in Rahimi’s case overruling 18 U.S.C. § 922(g)(8), a federal law making it unlawful for any person subject to a protective order to possess a firearm.⁵ Under the Court’s opinion, the Second Amendment’s right to bear arms appears to have taken priority over the protection of domestic violence victims.

Through its decision, the Court of Appeals narrowed the American historical tradition of limiting the right to bear arms for those who are potentially dangerous to the public, including the mentally ill and those convicted of violent felonies.⁶ Alternatively, the Court deemed perpetrators of domestic violence not sufficiently comparable to those whose rights have been historically limited. The Court relied upon a harmful analysis asserting that, because the Founders of the Constitution saw no reason for perpetrators of domestic violence to be stripped of their right to bear arms, 18 U.S.C. § 922(g)(8) has no constitutional place in today’s federal legal system.⁷ If upheld by the Supreme Court, this decision will result in unimaginably detrimental effects for victims of domestic violence and will set a dangerous Second Amendment precedent.

This article analyzes United States v. Rahimi as a case of critical importance on the Supreme Court’s docket this term, while calling for increased attention to the Fifth Circuit’s unjust decision.⁸ Part II provides background on District of Columbia v. Heller, McDonald v. City of Chicago, New York State Rifle & Pistol Ass’n v. Bruen, and United States v. Rahimi to demonstrate recent key developments in Second Amendment jurisprudence.⁹ Part III further analyzes the dangers of the legal test set forth in Bruen, pitfalls of the Fifth Circuit’s decision in Rahimi, and potential implications for domestic violence victims should the Supreme Court uphold the Fifth Circuit’s decision.¹⁰ Part IV concludes by calling for increased awareness of the Supreme Court’s pending decision in United States v. Rahimi, to be released in June or July of 2024, and its potential impacts on victims of domestic violence and other at-risk groups.¹¹

II. Background

The Fifth Circuit’s holding in Rahimi does not come as a complete surprise. Constitutional law has undergone some drastic developments in recent decades, shifting the right to bear arms under the Second Amendment from a right limited in the context of militias, to an individual right to possess a firearm for legitimate reasons, including for self-defense.¹² An effective analysis of the evolution of Second Amendment jurisprudence begins with District of Columbia v. Heller.¹³

A. District of Columbia v. Heller

Decided in 2008, the Supreme Court holding in District of Columbia v. Heller established the right to have a handgun in one’s home for self-defense purposes, establishing the right to bear arms under the Second Amendment as an individual right existing apart from any military purpose.¹⁴ Importantly, the Court noted in Heller that “[L]ike most rights, the right secured by the Second Amendment is not unlimited…. nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill….”¹⁵

B. McDonald v. City of Chicago

Decided in 2010, the Court’s holding in McDonald v. City of Chicago expanded upon its Heller opinion by establishing that the Fourteenth Amendment’s Due Process Clause incorporates the Second Amendment to the states, protecting the lawful use of weapons, including for self-defense, from state interference.¹⁶ This case further established the right to bear arms as a right of individuals, as it is “fundamental” to the American “scheme of ordered liberty” and is “deeply rooted in the nation’s history and tradition.”¹⁷

C. New York State Rifle & Pistol Ass’n v. Bruen

Decided in June of 2022, the Court’s opinion in New York State Rifle & Pistol Ass’n v. Bruen held as unconstitutional a gun safety law requiring licenses to carry concealed weapons in public places.¹⁸ Bruen marked a drastic shift in Second Amendment jurisprudence.

The challenged New York law required a demonstration of “proper cause” for an individual to receive a concealed carry license.¹⁹ Plaintiffs applied for licenses under the “proper cause” of a general interest in self-defense – their applications were denied.[mnf]Bruen, 142 S. Ct. at 2125.[/mfn] In turn, plaintiffs argued that the 100-year-old statute violated the Second Amendment.²⁰

In Bruen, the Court not only deemed the New York concealed carry law unconstitutional, but extended the right to possess a gun for self-defense in one’s home (as previously established under Heller) to exist outside one’s home as well.²¹Bruen overhauled similar laws existing in seven other states at the time of the Supreme Court’s decision.²²

A key concern of the Bruen majority was the amount of discretion provided to the government in determining whether license applicants met the requirements of the state statute.²³ In other words, the Court was concerned that there were few policies requiring the government to review an applicant based on consistent, objective criteria. Courts and legislatures will likely continue to be confronted with concerns about what types of regulations provide states with too much discretion.

Following Bruen, the constitutionality of gun laws is based on whether the plain language of the Second Amendment protects the activities a law regulates.²⁴ Presumptively, the Second Amendment’s text covers an individual’s right to bear arms, and a state must justify its regulation of firearms by demonstrating consistency with the nation’s “historical tradition” of firearm regulation.²⁵ A regulation will be deemed constitutional if a historical analogue exists.²⁶ The Bruen test represents the current law regarding the Second Amendment, and serves as the basis for the Fifth Circuit’s Rahimidecision.

D. United States v. Rahimi

On November 7, 2023, the United States Supreme Court will hear oral arguments in United States v. Rahimi.²⁷ The case was previously heard by the Court of Appeals for the Fifth Circuit, which invalidated 18 U.S.C §922(g)(8): a federal law making it unlawful for any person subject to a court order restraining them from “harassing, stalking, or threatening an intimate partner… or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury” to possess a firearm or ammunition.²⁸ The Court of Appeals held that people subject to protective orders have a constitutional right to possess firearms and that the law did not fit within the nation’s “historical tradition of firearm regulation.”²⁹ Further, according to the Court, § 922(g)(8)’s ban on firearm possession is an “outlier […] that our ancestors would never have accepted.”³⁰

The Court of Appeals found no sufficiently identical law as of the 1700s or 1800s.³¹ Thus, under the Bruen test, there was no sufficiently similar historical tradition of gun regulation. This is not surprising, given that victims of domestic violence have received notable recognition and support only in recent years, and in the centuries analyzed by the Court, women were “legally subjugated to men.”³² While regulations prohibiting the possession of weapons by violent felons and the mentally ill have been upheld under the nation’s historical tradition, the Court deemed such regulations too far removed from the law in question in Rahimi.³³ The Court went so far as to suggest that, to hold otherwise, could open the door for the stripping of the Second Amendment right from other “unordinary” or “irresponsible” individuals, including “people who do not recycle or drive an electric vehicle.”³⁴

III. Discussion

A. Dangers of Bruen’s “Historical Tradition” Test

While the idea of a “historical tradition” test may seem simple on its face, the Bruen test, requiring a historically analogous restriction on the Second Amendment right to bear arms, has presented plenty of challenges in the year since the case was decided. According to the Brennan Center for Justice, federal judges have “questioned the [Bruen] opinion, warning that history is an unworkable basis for deciding constitutional questions that pushes courts toward unreliable, unreasonable, and unjust conclusions.”³⁵ Relying exclusively upon such in-depth analyses of historical traditions requires a few things: historical expertise that most lawyers and judges lack; resources necessary to research and assess historical analogues; and similar methods of thinking across courts in order to maintain reliability and consistency in the legal system.³⁶

Additionally, and perhaps more importantly, Bruen supports adherence to values of a historical America that was exclusionary to certain populations – populations who should never have been excluded, and who deserve the full and equal consideration of the law. As argued by Justice Brunner in her State v. Philpotts dissent, a case concerning firearm regulation in Ohio, “the glaring flaw in an analysis of the United States’ historical tradition of firearm regulation… is that no such analysis could account for what the United States’ historical tradition… would have been if women and nonwhite people had been able to vote for the representatives who determined these regulations.”³⁷

Similarly, societal norms, expectations, and priorities have shifted drastically over the past few centuries. There is no “historical tradition” of gun regulation intended to protect victims of domestic violence, or of providing victims with resources or avenues for justice, especially given domestic violence’s disproportional effects on women and other vulnerable populations.³⁸ Further, the Bruen test considers only analogous regulations while ignoring the nature and scope of the weapons produced today versus in the 1700s and 1800s. As such, “the weapons being regulated have evolved from muskets to semi-automatic weapons since the days of the historical backdrop the Court uses in its analysis. Under this reasoning, the guns being regulated continue to evolve, but the regulations on those guns cannot.”³⁹

B. Pitfalls of the Fifth Circuit’s Decision in Rahimi

According to the Fifth Circuit’s opinion in Rahimi, the Second Amendment categorically denies the government – at the federal, state, and local levels – any authority to restrict gun possession for those subject to domestic violence protective orders. This denial exists regardless of the duration of the restriction and any evidence suggesting that gun possession substantially increases the risk of severe harm, including death, for victims of domestic violence – the very individuals civil protective orders exist to protect.⁴⁰

The Court’s decision in Bruen requires an “analogous” historical restriction for a gun regulation to be deemed constitutional. According to Merriam-Webster Dictionary, “analogous” means “similar or comparable to something either in general or in some specific detail; similar in a way that invites comparison.”⁴¹ Though Bruen’s “historical tradition” test is inadequate, the decision recognized Congress’s ability to respond to the evolving American social landscape, including by imposing necessary firearm restrictions – thus requiring only a legal analogue, not a legal twin.⁴² Although its decision asserts otherwise, the Fifth Circuit refused to settle for anything less than a “historical twin” law to overturn the challenged regulation.⁴³ As such, the Fifth Circuit took the Bruen test too far. Historically, the right to bear arms has been limited to law-abiding citizens, and restrictions on possession by the mentally ill and felons convicted of violent crimes have existed for decades.⁴⁴ There is a clear historical tradition of restricting the Second Amendment right for individuals who pose a threat to the safety of the public.⁴⁵ The Fifth Circuit’s failure to view perpetrators of domestic violence in a similar light to those historically subject to Second Amendment restrictions is steeped in an apparent disregard of the negative impacts of domestic violence. Otherwise, it suggests a lack of concern for those particularly susceptible to such violence – the individuals protective orders are designed to protect.

C. Potential Implications for Domestic Violence Victims

The rationale imposed by the Fifth Circuit leaves the government without the ability to regulate gun possession by individuals subject to restraining orders. The potential impacts of this decision on victims of domestic violence are unimaginable. Domestic violence affects individuals regardless of race, gender, or sexual orientation.⁴⁶ However, certain groups of people, including women, members of the LGBTQIA+ community, and racial and ethnic minorities are more susceptible to domestic violence.⁴⁷

Domestic violence has become so widespread and harmful as to be recognized as a public health crisis.⁴⁸ In fact, most women who die by gun violence are killed by an intimate partner or in a situation rooted in domestic violence.⁴⁹ Studies show that the presence of a firearm in the home during an incident of domestic violence increases the risk of death fivefold.⁵⁰ Further, more than fifty percent of all intimate partner-related murders of women were committed with a firearm.⁵¹ These staggering statistics only scratch the surface of demonstrating the role of firearms in domestic violence. Gun laws are directly correlated to the protection of susceptible individuals.⁵² The government’s regulation of firearm possession by perpetrators of domestic violence can reduce intimate partner homicides by up to twenty-five percent.⁵³

An additional concern is that, should the Supreme Court affirm the Fifth Circuit’s decision, pre-acquisition background checks may also be invalidated. Background checks have prevented over 77,000 weapon purchases attempted by individuals subject to domestic violence protective orders over the last twenty-five years.⁵⁴ In Bruen, background checks prior to firearm purchases, as well as mental health record checks and mandatory firearm safety trainings, were deemed constitutional because they do not grant “open-ended discretion to licensing officials and do not require a showing of some special need [for possession] apart from self-defense.”⁵⁵ The potential implications of the Rahimi decision span further than denying protection to individuals granted protective orders – it opens the door to the downfall of other highly effective firearm restrictions that have saved thousands of lives.

IV. Conclusion

In conclusion, the lives of domestic violence victims rest in the hands of the Supreme Court and will be profoundly impacted by its decision in United States v. Rahimi.⁵⁶ It is imperative that the Supreme Court overturn the Fifth Circuit’s decision in this case, as to do otherwise renounces efforts to protect victims of domestic violence. While the constitutionality test established in Bruen is generally flawed, the Fifth Circuit’s Rahimi decision took the test too far by seeking the equivalent of a historical twin law, as opposed to an analogous legal restriction.⁵⁷ In order to provide those susceptible to domestic violence with the protection they deserve, the Court must recognize the legal and societal impacts of the Rahimi decision and overturn the Fifth Circuit’s erroneous opinion.

Cover Photo generated by DALL-E-2 AI System

Madeline Brown

Madeline Brown is a 2L at the University of Cincinnati College of Law and an Associate Member of Law Review. Prior to law school, she received a B.B.A. in Finance and a B.A. in International Relations from the College of William & Mary and worked in life sciences compliance consulting. In addition to her involvement in Law Review, Madeline is the President of the American Constitution Society at UC Law and is passionate about public policy and non-profit work.

References

1
United States v. Rahimi, 61 F.4th 443, 448-49 (5th Cir. 2023), cert. granted, 143 S. Ct. 2688 (2023). There have been news reports of other shootings by Rahimi not mentioned in the pending case. See Roque Planas, Man at Center of Major Gun Rights Case Allegedly Shot at Woman In a Parking Lot, HuffPost (Sept. 13, 2023), https://www.huffpost.com/entry/zackey-rahimi-shooting_n_6500dd56e4b008b66733702b.
2
Rahimi, 61 F.4th at 448-49.
3
Id.
4
Kelly Roskam, Questions and Answers on U.S. v. Rahimi, the Major Gun Case Before the Supreme Court During its 2023-2024 Term, Johns Hopkins Bloomberg Sch. of Pub. Health (Oct. 10, 2023),https://publichealth.jhu.edu/2023/questions-and-answers-on-us-v-rahimi-the-major-gun-case-before-the-supreme-court-during-its-2023-2024-term.
5
Rahimi, 61 F.4th at 443; 18 U.S.C. § 922(g)(8).
6
Robert J. Spitzer, Gun Law History in the United States and Second Amendment Rights, 80 Law & Contemp. Probs. 55, 55 (2017).
7
18 U.S.C. § 922(g)(8).
8
Rahimi, 61 F.4th at 443.
9
District of Columbia v. Heller, 554 U.S. 570 (2008); McDonald v. City of Chi., 561 U.S. 742 (2010); N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111 (2022); Rahimi, 61 F.4th 443.
10
Bruen, 142 S. Ct. 2111; Rahimi, 61 F.4th 443.
11
Rahimi, 61 F.4th 443; see also Roskam, supra note 4.
12
Spitzer, supra note 6, at 55.
13
Heller, 554 U.S. 570.
14
Id. See also Understanding the Supreme Court’s Gun Control Decision in NYSRPA v. Bruen, League of Women Voters (July 12, 2022), https://www.lwv.org/blog/understanding-supreme-courts-gun-control-decision-nysrpa-v-bruen.
15
District of Columbia v. Heller, 554 U.S. 570, 626 (2008).
16
McDonald v. City of Chi., 561 U.S. 742, 791 (2010).
17
Id. at 806.
18
N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2156 (2022); see also Understanding the Supreme Court’s Gun Control Decision in NYSRPA v. Bruen, supra note 14.
19
Bruen, 142 S. Ct. at 2122; see also Understanding the Supreme Court’s Gun Control Decision in NYSRPA v. Bruen, supra note 14.
20
Id.
21
See also Understanding the Supreme Court’s Gun Control Decision in NYSRPA v. Bruen, supra note 14.
22
Id.
23
Id. Note that concerns about discretion were distinguished from other requirements such as background checks, which the Court argued were more clearly defined.
24
Id.
25
N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2126 (2022).
26
Id.
27
Roskam, supra note 4.
28
United States v. Rahimi, 61 F.4th 443 (5th Cir. 2023), cert. granted, 143 S. Ct. 2688 (2023). Note that this restriction on the right to bear arms applies only to orders issued after a hearing of which the restricted individual received actual notice and in which they had the opportunity to participate, limiting any concerns about potential violations of due process rights. Additionally, the restriction applies only for the duration of the court’s order, temporarily limiting an individual’s Second Amendment rights. 18 U.S.C. § 922(g)(8).
29
Rahimi, 61 F.4th at 461; see also United States v. Rahimi: What’s at Stake, ACLU (Sept. 13, 2023), https://www.aclu.org/cases/united-states-v-rahimi#:~:text=witnessed%20his%20abuse.-,Mr.,constitutional%20right%20to%20possess%20guns.
30
Rahimi, 61 F.4th at 461.
31
United States v. Rahimi: What’s at Stake, supra note 30.
32
Id. Note, of course, that victims of domestic violence are not exclusively individuals who identify as women.
33
Id.
34
Rahimi, 61 F.4th at 453.
35
Clara Fong, Kelly Percival & Thomas Wolf, Judges Find Supreme Court’s Bruen Test Unworkable, Brennan Ctr. for Just. (June 26, 2023), https://www.brennancenter.org/our-work/research-reports/judges-find-supreme-courts-bruen-test-unworkable.
36
Id.
37
Id.
38
Marissa Edmund, Weak Gun Laws Are Harmful to Women and Survivors of Domestic Violence, Ctr. for Am. Progress (Oct. 31, 2022), https://www.americanprogress.org/article/weak-gun-laws-are-harmful-to-women-and-survivors-of-domestic-violence/.
39
Understanding the Supreme Court’s Gun Control Decision in NYSRPA v. Bruen, supra note 14.
40
Brief of ACLU as Amicus Curiae in Support of Reversal at 4, United States. v. Rahimi, 61 F.4th 443 (2023) (No. 22-915).
41
Analogous, Merriam-Webster,https://www.merriam-webster.com/dictionary/analogous (last visited Oct. 22, 2023).
42
United States v. Rahimi: What’s at Stake, supra note 30, at 4.
43
United States v. Rahimi, 61 F.4th 443, 454 (5th Cir. 2023), cert. granted, 143 S. Ct. 2688 (2023) (Noting that “the Government need not identify a “historical twin”); see also United States v. Rahimi: What’s at Stake, supra note 30.
44
Spitzer, supra note 6, at 55.
45
United States v. Rahimi: What’s at Stake, supra note 30.
46
Edmund, supranote 39.
47
Id.
48
Id.
49
Id.
50
Id.
51
Id.
52
Id.
53
Id.
54
United States v. Rahimi: What’s at Stake, supra note 30.
55
N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2162 (2022).
56
United States v. Rahimi, 61 F.4th 443 (5th Cir. 2023), cert. granted, 143 S. Ct. 2688 (2023).
57
United States v. Rahimi: What’s at Stake, supra note 30.