Domestic-Abuse Gun Ban in Peril After Recent Supreme Court Ruling
Some judges reject firearm ban for alleged abusers subject to protective orders
From Today's WSJ.
"Federal law for nearly 30 years has barred gun possession for alleged domestic abusers, but the ban is coming under pressure from judges who say it is at odds with the Supreme Court’s recent expansion of Second Amendment rights.
Decisions from a federal appeals court and several trial judges have concluded the ban, included in the 1994 crime bill enacted by Congress, clashes with U.S. traditions of gun regulation, the new legal standard
the Supreme Court announced in June.
Most notably, the Fifth U.S. Circuit Court of Appeals on Feb. 2 tossed out the conviction of a man charged with illegally possessing several firearms. After police identified him as a suspect in multiple shootings, they obtained a warrant to search his home and found a stash of weapons along with a copy of a civil restraining order against him, obtained by an ex-girlfriend whom he allegedly assaulted and threatened to shoot.
The defendant, “while hardly a model citizen, is nonetheless part of the political community entitled to the Second Amendment’s guarantees,” Judge Cory T. Wilson wrote in
the Fifth Circuit’s ruling.
Under federal law, convicted felons are banned from owning firearms, as are those convicted of misdemeanor domestic-violence charges. The ban on gun ownership in the protective-order cases is different, applying to individuals who are subject to civil court orders that bar them from threatening or harassing an intimate partner. Spouses who fear for their safety can obtain such orders even if there are no corresponding criminal proceedings. The ban is among myriad gun regulations left vulnerable to challenges after the Supreme Court’s 6-3 ruling last year striking down New York’s handgun-permitting regime.
The decision in New York State Rifle & Pistol Association Inc. v. Bruen, written by Justice Clarence Thomas, split the court along ideological lines and fundamentally changed how courts are expected to judge the constitutionality of gun laws, subjecting restrictions to a far more demanding standard. Courts should give less weight to government concerns about gun violence and public safety, Justice Thomas wrote, and instead look to historical records to determine whether a gun restriction is “consistent with this Nation’s historical tradition of firearm regulation.”
Defenders of the domestic-violence gun ban have struggled to find evidence of states in the 1700s and 1800s seizing guns from the homes of violent spouses.
On the day the Fifth Circuit ruled, a U.S. district judge in Kentucky
issued a similar opinion, finding no “comparable historical analogue” to the 1994 ban. And in a Texas ruling from November, another federal judge said, “The company Amazon is older than the federal laws prohibiting someone subject to a court order from possessing a firearm.”
The decisions were all from judges appointed by Republican presidents.
Since Bruen,
courts have ruled against a range of other gun laws, including a federal gun ban on marijuana users as well as restrictions on young adults and
carrying weapons in certain locations, such as libraries, museums and bars.
“Before Bruen, pretty much all gun regulations were being upheld,” said George Mason University criminal-law professor Robert Leider, who favors a robust view of Second Amendment rights. “There’s been a reckoning because the historical test that Bruen announces collides with the fact that many of these laws have no historical pedigree.”
Pepperdine University law professor Jacob D. Charles, who has written critically of the Bruen decision, said the protective-order cases have exposed troubling aspects to the ruling, which “allows courts to strike down a modern law protecting victims of domestic violence because the founders did not treat domestic abusers similarly.”
The Fifth Circuit itself said the new Supreme Court standard changed the outcome for the Texas defendant, Zackey Rahimi.
In February 2020, Mr. Rahimi’s then-girlfriend obtained a two-year protective order restraining him from threatening, stalking or harassing her or their toddler son. According to police and court records, he had assaulted her in a parked car and fired a shot in the air. A lawyer for Mr. Rahimi, who remains in custody facing multiple state criminal charges, declined to comment.
Before the Bruen decision, the appeals court had affirmed Mr. Rahimi’s federal conviction and 73-month prison sentence, citing earlier precedent that concluded the societal benefits of the domestic-violence protections outweighed any burden on the right to bear arms. But a new three-judge panel reconsidered the case in light of the new precedent and found that the ban was “an outlier that our ancestors would never have accepted.”
Attorney General Merrick Garland said the Justice Department would seek further review of the case. The department also has appealed the trial-court rulings it recently lost.
The government likened the domestic-abuser statute to historical laws that kept guns away from suspected British loyalists and entire classes of residents deemed to be a threat, reaching as far back as English Militia Act of 1662, which allowed officers to seize arms from people judged “dangerous to the Peace of the Kingdom.” The government also pointed to mid-19th-century statutes requiring individuals likely to disturb the peace to post bonds before carrying weapons in public.
The appeals court found none of those laws “relevantly similar” to the protection-order statute, or as burdensome on gun ownership.
Most states have their own laws that make it a crime to possess firearms while under a domestic-violence restraining order, many of which require individuals placed under orders to relinquish their firearms. Those state measures, like the federal ban, face uncertainty in light of the recent rulings.
Advocates for domestic-violence survivors and tougher firearm regulation say the domestic-violence gun ban saves lives, citing studies linking gun laws against abusers to reductions in spousal and dating homicides.
Justice Stephen Breyer, dissenting in the Bruen case, cited research showing that abusive relationships are much more likely to turn deadly when violent partners have access to weapons.
More than 100,000 gun sales were rejected from 1999 to 2020 because a criminal-background check showed the applicant subject to a disqualifying protection order, according to Everytown for Gun Safety, a gun-control advocacy group.
More cases on the issue remain in the courts, with the potential to widen a split among judges.
U.S. District Judge Timothy DeGiusti in Oklahoma, a President George W. Bush appointee, upheld the statute in a
late-summer ruling. While there was a “paucity of evidence” that American traditions addressed guns and domestic relationships, the judge said, the 1994 ban is “consistent with the longstanding and historical prohibition on the possession of firearms by felons.”
Write to Jacob Gershman at
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