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Domestic Assault and the Right to Bear Arms

Timothy P. Flynn July 6, 2023

handgun and gavelThis post examines the intersection of the right to bear arms under the Second Amendment and the government’s power to ban firearms for those under the injunction of a civil restraining order.  

Last Friday, SCOTUS released a raft of anxiously awaited decisions addressing affirmative action, student loans and whether private companies can discriminate against gay customers, among other cases. On the same day, SCOTUS also released an order at its “clean-up” conference, granting certiorari in an interesting Second Amendment case involving domestic violence.

United States v Zackey Rahimi has been percolating through the federal courts over the past several years. The facts of the case are simple: a Texas drug dealer threw his girlfriend to the ground and dragged her into his vehicle where she struck her head. When the drug slinger realized a bystander observed his conduct, he retrieved a weapon from his vehicle and fired a shot.

A local family court issued a restraining order against Mr. Rahimi which suspended his handgun license and enjoined him from possessing a firearm during for two-years. The Texan was warned that his possession of any weapon during this period was a federal felony. [Here in Michigan, such restraining orders are known as personal protection orders.]

Despite the restraining order and the family court warnings, Rahimi went on to commit other gun-related criminal acts [including shooting at a series of people with whom he had encounters, illegal and otherwise]. For this conduct, Rahimi was charged under both state and federal law in Texas.

In the federal matter, Rahimi moved to dismiss the indictment on the grounds that the federal law, 18 USC 922, was unconstitutional on its face because it violated the Second Amendment. His motion was denied and he was ultimately convicted and sentenced to 73-months incarceration, followed by a 3-year probationary term.

Rahimi appealed to the Fifth Circuit in New Orleans which affirmed his conviction at first, but then “withdrew” its opinion in a highly unusual maneuver, reversing its earlier conclusion and thereby reversing the trial court based on the 2022 SCOTUS opinion in New York State Rifle & Pistol Association v Bruen. Then, one month later, in an exceedingly unusual procedural maneuver, the Fifth Circuit again “withdrew” its opinion, and after receiving supplemental briefs from the litigants, amended its opinion, again reversing the lower court in Texas.

Last week, the SCOTUS granted the Biden Administration’s petition for a writ of certiorari as one of its final tasks of the 2022-2023 term. The government argued that our nation has a long historic tradition of firearm regulation and that the scope of such regulations could easily include a dangerous person like Rahimi.

Perhaps due to the exceedingly unusual procedural history of the case, the High Court agreed to take a look at the arguments during its next term which commences in October. SCOTUS will likely issue a decision on the case before next June.

The case takes a unique look at the scope and limits of governmental firearm regulation. This case presents a situation where the citizen, Mr. Rahimi, does not fall into a clear category of people routinely disarmed by government regulations: i.e., convicted felons and the mentally ill. Rather, Rahimi, admittedly not a “model citizen”, was not a convicted felon [at the time of the issuance of his restraining order at least] or otherwise excluded from the scope of the Second Amendment.

The Fifth Circuit reasoned that because Rahimi presumptively fell within the scope of the Second Amendment right to bear arms, the government had the burden to identify longstanding regulations that applied to the individualized findings made in the family court for a civil protective order. In rejecting each of the government’s examples of longstanding categories of firearm regulation, the Fifth Circuit held that the federal law was unconstitutional on its face.

The United States, citing to the estimated million plus acts of domestic violence that occur in the country every year, quoted the SCOTUS: “[a]ll too often the only difference between a battered woman and a dead woman is the presence of a gun.” The government asserted in their petition that the at-issue federal statute fits squarely within the longstanding tradition in our country of disarming dangerous individuals.

Mr. Rahimi’s brief in response, filed by the federal public defender’s office in Texas, argued that the Fifth Circuit correctly applied the Bruen case when deciding the federal firearm regulation was unconstitutional. Rahimi’s lawyers attacked the face of the federal statute; they did not argue that the statute was unconstitutional as applied to their client.

Rahimi’s public defenders emphasized that federal prosecutors charged their client with the at-issue federal firearm statute prior to resolution of any of his gun-related state felony charges. This procedural history ensured a narrow review of the offending statutory language; had he been charged under the federal firearm statute subsequent to a gun-related state law felony, this case would not be headed to the SCOTUS.

This case has garnered much attention in the wake of the near-daily mass shootings in the United States. Several organizations have filed amicus briefs: the Governor of California; the Texas Advocacy Project; Gun Violence and Domestic Violence Prevention Groups; New York County Lawyers Association; and the State of Illinois [think Chicago and its rash of gun violence] among others.

For his part, Rahimi and his lawyers assert that, for the most part, the amicus briefs cite to a mountain of gun violence statistics that were never part of the lower court record. They anticipate an avalanche of cases that will "re-examine" the whole cloth of firearm regulations after Bruen.

We will continue to monitor this case as it impacts various aspects of our practice. Our law firm handles domestic violence cases each and every week. Some of those cases involve the use of weapons against a domestic partner.

If you are the victim of domestic violence and need assistance, give our office a call to discuss the deails of your situation in a free consultation.