The Supreme Court’s decision to strike down New York’s gun law last year has been hailed by Second Amendment advocates as a landmark decision and a fundamental new test of firearms law. In Part One of this series, Starting Pistol, the Washington Examiner investigated how the ruling in New York State Rifle & Pistol Association v. Bruen opened the floodgates to successful legal challenges. Part Two looked at the 27 states shifting to become permitless carry and the blue state permitting laws that are under legal challenge. Part Three examined the new category of “sensitive” places where New York and other states have banned guns. Part Four, below, previews what could become the Supreme Court’s next Second Amendment case post-Bruen.
The Supreme Court may soon decide whether to weigh the case of a man federally charged with violating a law barring people under domestic violence restraining orders from having a gun.
The high court’s consideration on June 22 will come on the eve of the one-year anniversary of its New York Rifle & Pistol Association v. Bruen opinion, which set a new test to decide whether gun control laws are constitutional based on the nation’s “historical tradition of firearm regulation.”
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In March, the U.S. Court of Appeals for the 5th Circuit vacated the conviction of Texas drug dealer Zackey Rahimi under a federal law that makes it a crime for people subject to domestic violence orders to possess guns, finding that it violated the Second Amendment.
“Rahimi, while hardly a model citizen, is nonetheless among ‘the people’ entitled to the Second Amendment’s guarantees, all other things equal,” 5th Circuit Judge Cory Wilson wrote for the three-panel decision.
The Biden administration swiftly appealed the decision to the Supreme Court, arguing there exists “strong historical evidence supporting the general principle that the government may disarm dangerous individuals.”
The case, United States v. Rahimi, began in 2019 when Rahimi stood accused of assaulting his girlfriend and threatening to shoot her if she told anyone, prompting her restraining order request. The order suspended his handgun license and blocked him from possessing a gun.
Rahimi was allegedly later involved in five shootings in the span of two months. In one of those instances, he is said to have threatened a different woman with a gun, leading to charges of assault with a deadly weapon. He also opened fire in public five times and used an AR-15 to shoot into the home of someone who purchased prescription narcotics from him, according to court records.
The shooting incidents led to a search warrant on his home, which uncovered weapons, leading to his charge in violation of 18 U.S.C. § 922, which criminalizes gun ownership by anyone subject to a domestic violence restraining order.
After a federal district court judge rejected his Second Amendment challenge to the law, he pleaded guilty and was sentenced to over six years in prison. The 5th Circuit initially affirmed his conviction on June 8, 2022, weeks before the Bruen decision was released.
The appeals court then reversed the decision after the Supreme Court ruling on June 23 last year. Under the new Second Amendment test, the 5th Circuit ruled in March, the federal law barring people subject to domestic violence orders from possessing a firearm violates the Constitution because there was no historical support for it.
Because the law at issue in Rahimi “disarms individuals based on civil protective orders — not criminal proceedings,” the panel found no “analogous historical tradition sufficient to support” it.
The federal government argued at the 5th Circuit that protecting domestic violence victims mirrored historical laws that allowed for disarming “dangerous” people. But the 5th Circuit found those laws, which targeted Native American and minorities along with those who failed to “take an oath of allegiance,” were not similar enough to pass the test.
Brandon Beck, an assistant professor at Texas Tech School of Law, was previously a public defender for Rahimi and was the brainchild of his defense before shifting his career to work in academia.
Beck told the Washington Examiner his primary argument stated that “a law that says that you lose a constitutional right, based on a finding in civil court, is unconstitutional unless there’s a historical justification for doing so.”
“What I’m saying is, if a person is a domestic abuser, and then they do nothing more than possess a firearm in their own home, then they shouldn’t face up to 15 years imprisonment for doing so,” Beck said.
Beck contends there’s “no better example” for this constitutional test than Rahimi’s case based on the other illegal acts he is believed to have committed in addition to violating the restraining order.
“He did possess a firearm with the protective order, right. He also misused the firearm in several ways in the facts of the case,” Beck said.
Rahimi is still facing charges each time he pulled the trigger or harmed someone, Beck said. “That’s still going to stand.”
Agreeing to take up the government’s petition would give the justices an opportunity to explore the extent of the new Second Amendment test.
Last month, the justices passed on the opportunity to block a local and state ban on assault weapons sales in Illinois, rejecting an emergency request from gun rights advocates and a gun store owner.
J. Matthew Wright, one of Rahimi’s lawyers, told the justices that they should deny the government’s petition on the basis that Bruen “is less than a year old,” saying it should be allowed to “percolate” in lower courts.
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“This Court only ‘rarely’ grants certiorari to refine or clarify an important constitutional issue within the first year,” Wright wrote in his opposition brief.
“Lower courts are just beginning to grapple with Bruen, and the decision’s recency is reason enough to deny certiorari,” he added.
