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Analysis: How a Supreme Court ruling led to the overturning of a guns and domestic violence law

All U.S. Supreme Court decisions have consequences but only a few jolt the legal system and the nation with immediate and long-term consequences. Last summer’s Second Amendment ruling by the high court is one of those decisions.

A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit recently struck down a federal law prohibiting individuals from “possessing a firearm while under a domestic violence restraining order.” The decision in United States v. Rahimi is direct fallout from the June 2022 ruling by the U.S. Supreme Court’s conservative majority in New York State Rifle & Pistol Association v. Bruen.

And although the Rahimi decision applies in only Texas, Louisiana and Mississippi, it is the likely forerunner of court rulings in other states.

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“The question presented in this case is not whether prohibiting the possession of firearms by someone subject to a domestic violence restraining order is a laudable policy goal,” Judge Cory Wilson wrote for the unanimous appeals panel. The question was whether 18 U.S.C. § 922(g)(8), the federal law that does so, was constitutional under the Second Amendment. It was not, he concluded.

While the Supreme Court’s Bruen decision lifted most state restrictions on the public carrying of weapons, it also did something much more significant. It changed the way in which courts must judge Second Amendment challenges to gun regulations and restrictions.

Before Bruen, most federal courts used a two-step framework for weighing the constitutionality of gun regulations. If historical evidence showed that the regulated conduct was outside the Second Amendment’s original scope, then the conduct or activity was not protected. But if text and history were unclear, then courts applied what is known as intermediate scrutiny to the regulation. The government, to prevail, had to show that the regulation was “substantially related to the achievement of an important governmental interest.”

This two-step process often resulted in gun regulations being upheld. In the Bruen majority opinion last summer, Justice Clarence Thomas rejected the two-step framework as “one step too many.”

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Instead, Thomas wrote, to prevail now, the government must prove that the challenged regulation is consistent with the nation’s historical tradition of firearm regulation. In making this historical inquiry, he explained, courts often must use reasoning by analogy to determine whether a historical regulation is a proper analogue for a distinctly modern firearm regulation.

Thomas’ text and history test provoked considerable criticism among American historians who viewed history as an imperfect tool for determining the constitutionality of modern gun regulations and an unwieldy one to be used by non-historian judges and lawmakers.

Nevertheless, the Bruen test is the law of the land, and the Fifth Circuit panel in Rahimi was bound to follow it.

Local police focused on Zackey Rahimi as a suspect in a series of shootings in December 2020 and January 2021. With a warrant to search his home, the police found a rifle and pistol that Rahimi admitted were his own. He also admitted that he was subject to a civil protective order entered by a Texas state court on Feb. 5, 2020, after his alleged assault of his ex-girlfriend. That order prohibited Rahimi from harassing, stalking, or threatening her and their child.

The order also expressly prohibited Rahimi from possessing a firearm. He was indicted by a federal grand jury for possessing a firearm under a domestic violence restraining order in violation of the federal law in question, 18 U.S.C. § 922(g)(8). He was convicted in the district court and was unsuccessful in his appeal, but then Bruen was decided and the legal landscape changed.

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The appeals court gave another look at Rahimi’s Second Amendment challenge to the federal provision by applying Bruen. It first decided that Rahimi’s right to keep the weapons found in his home was presumptively protected by the Second Amendment because those were weapons “in common use” at the time and fell within the scope of the amendment.

The tougher question was whether Rahimi may have forfeited his right to bear arms if his conduct ran afoul of a “lawful regulatory measure” prohibiting gun possession that is consistent with the nation’s historical tradition of firearm regulation. Was §922(g)(8) that “lawful regulatory measure?”

The panel of judges rejected all of the government’s historical evidence and possible analogues used to buttress the constitutionality of §922(g)(8).

The federal ban, the panel wrote, “embodies salutary policy goals meant to protect vulnerable people in our society.” When they used the two-step process prior to Bruen, the judges recalled, they had concluded that the societal benefits of the federal law outweighed the burden on Rahimi’s Second Amendment rights.

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But through the lens of Bruen, they added, the federal ban on possession of firearms is an “outlier that our ancestors would never have accepted.”

Interestingly, in its analysis, the appellate panel cited Justice Amy Coney Barrett’s dissenting opinion in a different gun case when she sat as a judge on the U.S. Court of Appeals for the Seventh Circuit.

That case, Kanter v. Barr, involved Rickey Kanter, who was convicted of one felony count of Medicare mail fraud, served his time and wanted his Second Amendment rights back. The case involved another section of the same federal law that Rahimi violated.

Section 922 (g)(1) prohibits firearm possession by persons convicted of “a crime punishable by imprisonment for a term exceeding one year.” The law includes state misdemeanors if they are punishable by more than two years in prison. Kanter was sentenced to one year and one day in prison and two years of supervised release. He was also ordered to pay a criminal penalty of $50,000, and he reimbursed Medicare over $27 million in a related civil settlement.

Kanter challenged the federal law under the Second Amendment as it applied to him. Because his case arose before the Bruen decision, the court applied the previous two-step framework for analyzing Second Amendment challenges.

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In the end, the appeals court found that because Kanter had committed a serious federal felony, his challenge was without merit, writing that the government “has established that the felon dispossession statutes are substantially related to the important governmental objective of keeping firearms away from those convicted of serious crimes.”

Then-Judge Barrett disagreed. She wrote that history demonstrated that legislatures have the power to prohibit dangerous people from possessing guns. “But that power extends only to people who are dangerous. Founding-era legislatures did not strip felons of the right to bear arms simply because of their status as felons. Nor have the parties introduced any evidence that founding-era legislatures imposed virtue-based restrictions on the right.”

Barrett clearly had a broader view of the scope of the Second Amendment’s protection than many other judges held prior to Bruen. But her dissenting opinion in Kanter at the very least signals another area where Bruen may work changes in the law.

And those changes are happening swiftly. One gun rights organization, the Second Amendment Foundation, reported there are at least 50 cases in federal courts challenging gun restrictions.

Besides the domestic violence ruling in Rahimi, a West Virginia judge applying Bruen struck down a federal law that required guns to have serial numbers. Another judge in Texas ruled that individuals under criminal indictments can possess guns. And provisions in New York’s new concealed carry law that prohibit guns in Times Square, subways and summer camps are awaiting an appeals court review after initially being struck down.

In the end, some of these issues are bound to return to the U.S. Supreme Court where, at least for the foreseeable future, gun rights are on the ascendancy.