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Opinion: The Fifth Circuit’s Rahimi decision protects abusers’ access to guns. The Supreme Court must act to protect survivors of domestic violence.

This is an opinion piece authored by the director of law and policy at the Center for Gun Violence Solutions.

Kelly Roskam, JD

Zackey Rahimi was not a responsible gun owner. He exhibited the type of behavior that identified him as a danger to both the public and those closest to him. In February 2020, Rahimi agreed to be subject to a protective order after allegedly assaulting his ex-girlfriend. Between December 2020 and January 2021, he was involved in five shootings. But despite acknowledging that Rahimi is “hardly a model citizen” – an understatement – the 5th Circuit Court of Appeals in deciding United States v. Rahimi recently struck down the federal law prohibiting possession of firearms by people subject to domestic violence protection orders. In short, the 5th Circuit ruled that prohibiting abusers like Rahimi from possessing firearms is unconstitutional under the Second Amendment. In doing so, the court sided with abusers.

This decision, which applies in Texas, Mississippi, and Louisiana, is just the latest alarming development in a new era of Second Amendment cases. The new test for such cases, established in New York State Rifle & Pistol Association v. Bruen, requires the government to show that modern gun violence prevention laws are relevantly similar to historical laws.

While this standard may initially seem benign, the fact that domestic violence primarily affects women brings up troubling questions. What would analogizing to the past look like in the case of laws preventing domestic abusers from having firearms? The past is not a particularly charitable place for all but the privileged few. Women did not write the Constitution. They could not vote. Up until the late nineteenth century, a woman’s legal identity merged with her husband, who had the right to physically punish (meaning assault) her if she disobeyed him. It is only recently that society has evolved to be less oppressive.

The effect of allowing such a dangerous and reckless ruling to stand would be devastating; it will allow known abusers to keep their guns, and acquire more, with no regard for whether they will use these weapons to coerce, injure, and kill their victims.

Surely this is not what the majority in Bruen intended, and yet in Rahimi, the court ruled that the protection for survivors of domestic violence does not pass the “Bruen test.” Though the court acknowledged a national historical tradition of disarming individuals perceived to be dangerous, the court identifies what it describes as “material differences” between those laws and domestic violence protection order firearm restrictions.

These supposed differences are two-fold. First, the court writes that the historical laws disarmed people, that bygone legislatures determined to be dangerous, by category, such as obviously racist restrictions against Native Americans and enslaved individuals, rather than an “individualized finding of credible threats to” particular individuals. In other words, the law that aims to protect families from their abusers is too precise. Dismissing the use of precision with regard to identifying dangerous individuals is setting us on a path that will be lined with victims of firearm violence.

Second, the court states that the purpose of historical laws “was the preservation of political and social order, not the protection of an identified person from the specific threat posed by another[,]” such as protecting a domestic violence survivor from their abuser. This statement is at odds with their acknowledgment in the same opinion that public safety was a concern in the enactment of the historical laws.

Though it may not have been the intended outcome of Bruen, the 5th Circuit’s ruling is an awful but foreseeable consequence of a test of constitutionality that is poorly articulated and difficult to apply consistently. Bruen instructs that the government must show that current gun violence prevention laws are sufficiently analogous to historical laws, but it assures that the test is not a regulatory straitjacket. Governments need not identify historical twins. However, Bruen also warns courts not to uphold every modern law that remotely resembles a historical one.

This lack of clear guidance from the Supreme Court has led courts to express uncertainty in rendering their decisions. With severe consequences. For example, the Western District of Texas, which found the law prohibiting possession of firearms by people subject to domestic violence protective orders unconstitutional in November, wrote that Bruen did not instruct lower courts which tool to apply to Second Amendment cases – the scalpel or the chainsaw – and acknowledged that “separate courts can come to different conclusions on [the same] law’s constitutionality, but both could be right under Bruen.” In the wake of this uncertainty, the Western District of Texas and the 5th Circuit identify an absurdly narrow space between twin and remote resemblance and willfully endanger people’s lives.

To avoid reckless decisions like this one, lower courts need clearer guardrails to reconcile the perception of the “nation’s historical tradition” with the contemporary understanding of domestic violence and the lethality of modern firearms. The Supreme Court must clarify that the test is broad enough to allow courts to consider the broader principle underpinning historical laws. Justice Amy Coney Barrett said it best: “History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns.” Research conducted since the Founding is clear: domestic abusers are dangerous. The presence of a firearm increases the likelihood that domestic violence will escalate into a homicide.

While violence that occurs privately is worth addressing in its own right, research shows that what begins as violence within the home often spills into public, endangering the political and social order. In nearly 70 percent of mass shootings, the perpetrator first killed a partner or family member or had a history of domestic violence.

Women and others who are regularly targeted by abusers with guns cannot afford to lose the protection of laws that prevent abusers’ access to firearms. To say that we cannot regulate abusers’ access today because the Founders tolerated domestic violence is both ludicrous and unacceptable. The Supreme Court must act to ensure protection for survivors of domestic violence. The application of the Bruen test is not a theoretical exercise in analogizing; lives hang in the balance.