GUNSBruen Decision Takes Gun Law Back to a Time Before ‘Domestic Violence’
The Supreme Court introduced a historical test that is upending gun laws across the country. The most recent policy to fall: a ban for subjects of restraining orders.
On February 2, a panel of the Fifth Circuit Court of Appeals in Texas overturned a federal ban on gun possession by people subject to domestic violence restraining orders. The ruling, which voided part of a nearly three-decades-old landmark policy, is the latest example of how the Supreme Court’s decision in New York State Rifle and Pistol Association v. Bruen last June is reshaping American gun laws.
The case, U.S. v. Rahimi, concerns an Arlington, Texas, man who was a suspect in several shootings when police found guns in his home and discovered he was under a civil protective order for the alleged assault of his ex-girlfriend. The order expressly prohibited him from having firearms, and he was indicted for violating the federal domestic violence gun ban.
The three-judge panel, all Republican appointees, applied Bruen’s new framework for deciding Second Amendment cases: In order for a gun law to be constitutional, it must have an analog that is well-established in American history. Because domestic violence wasn’t recognized as a crime in the 18th and 19th centuries, the Fifth Circuit judges vacated Rahimi’s conviction and declared the ban unconstitutional. They called it an “outlier that our ancestors would never have accepted.”
The ruling affects Texas, Mississippi, and Louisiana, which the Fifth Circuit covers. Elsewhere, the law stands. The centerpiece of the federal law, the 1996 Lautenberg Amendment, still prohibits gun possession by those convicted of misdemeanor domestic violence.
On the day the Fifth Circuit issued its ruling, a district court in Kentucky came to the same conclusion, saying the government had not satisfied Bruen’s history and tradition test. The decisions come three months after a Texas district court judge ruled that the restraining order provision was unconstitutional, using similar reasoning: Domestic violence wasn’t a crime back then. “It wasn’t until the mid- to late-1970s before states enacted laws enabling civil protection orders barring domestic abusers from further abusing the victim,” Judge David Counts wrote.
The presence of guns in an abusive household significantly increases the risk of death. Domestic violence victims’ advocates say victims are most in danger when they’re trying to break with an abuser for good. That time period can include court proceedings, and many domestic violence defendants remain free during the pretrial period — which is when domestic violence restraining orders are often issued. Those victims could now be in peril in three states.
