In June, the US Supreme Court granted certiorari to hear the case of United States v. Rahimi. In reviewing the case, the Court will consider the constitutional right to possess a firearm by those who are subject to domestic violence orders of protection. The gun rights case is currently scheduled for argument on Tuesday, November 7, 2023. However, a decision is not expected until early 2024.
Gun Rights & Orders of Protection
In 2019, Zackey Rahimi was accused of knocking his girlfriend to the ground and dragging her back to his car, causing her to hit her head on the car’s dashboard. Additionally, he was accused of later telling the woman he would shoot her if she told anyone about the assault. For this incident, Rahimi was subject to a civil protective order. Specifically, the protective order restrained him from harassing, stalking, or threatening his ex-girlfriend and their child. The order also expressly prohibited Rahimi from possessing a firearm.
Thereafter, between December 2020 and January 2021, Zackey Rahimi was involved in five shootings in and around Arlington, Texas. Subsequently, a federal grand jury indicted Rahimi for possessing a firearm while under a domestic violence order of protection in violation of 18 U.S.C. § 922(g)(8)).
It shall be unlawful for any person[ ] who is subject to a court order that[:] (A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate; (B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and (C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury … to … possess in or affecting commerce, any firearm or ammunition … .
Rahimi protested that the statute was unconstitutional and violated his gun rights. However, he was unsuccessful in this challenge and was convicted. He continued to appeal, with the U.S. Court of Appeals for the Fifth Circuit finding that the statute violated the Second Amendment. Now, the US Supreme Court will consider the issue.
Precedent on Gun Rights
In 2022, the US Supreme Court decided the Bruen case. Specifically, the Court struck down New York laws relating to gun rights. Those laws prevented law-abiding citizens with ordinary self-defense needs from their constitutional right to keep and bear arms. In that case, the Court stated that the Second Amendment protects a broad right to carry a handgun outside the home for self-defense.
In Bruen, the Court created a new framework for considering Second Amendment challenges. Now, the constitutionality of such laws and regulations will be considered in light of “historical tradition.”
When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’
Why the Issue is Important
The question remains how broad gun rights are. Can the government disarm those who pose a threat of violence to others? The concern is that when viewing laws regulating the possession of firearms by domestic abusers, “historical tradition” didn’t necessarily see domestic abuse as a problem. Indeed, until 1984 New York had a “marital rape” exemption where a husband could not be convicted of raping his wife. And the federal Violence Against Women Act wasn’t enacted until 1994.
New York’s Attorney General Leticia James joined a coalition of 25 attorneys general in filing an amicus brief, which urges the Court to preserve the statute. In their brief, the attorneys general argue that the statute protects survivors of domestic abuse. According to studies, an abuser is five times more likely to murder his or her intimate partner if a firearm is in the home. Additionally, firearms are the leading cause of intimate partner homicides, more than all other weapons combined. In the US, 80 percent of these homicide victims are women, with pregnant women and women of color disproportionately victimized.
- Amy Howe, “Justices take up major Second Amendment dispute,” SCOTUSBlog (Jun. 30, 2023). Available at: https://www.scotusblog.com/2023/06/justices-take-up-major-second-amendment-dispute/ (last accessed Sept. 19, 2023).
- Kate Lisa, “Advocates: Next SCOTUS gun rights decision will clarify N.Y. laws,” Spectrum News 1 (Jul. 10, 2023). Available at: https://spectrumlocalnews.com/nys/central-ny/politics/2023/07/10/advocates–next-scotus-gun-rights-decision-will-clarify-ny-laws (last accessed Sept. 19, 2023).
- Press Release, “Attorney General James Takes Action to Prevent Domestic Abusers from Accessing Guns,” Office of the New York State Attorney General (Aug. 22, 2023). Available at: https://ag.ny.gov/press-release/2023/attorney-general-james-takes-action-prevent-domestic-abusers-accessing-guns (last accessed Sept. 19, 2023).
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