On February 2, a panel of the Fifth Circuit Court of Appeals in Texas overturned a federal ban on gun possession by people subject to domestic violence restraining orders. The ruling, which voided part of a nearly three-decades-old landmark policy, is the latest example of how the Supreme Court’s decision in New York State Rifle and Pistol Association v. Bruen last June is reshaping American gun laws.
The case, U.S. v. Rahimi, concerns an Arlington, Texas, man who was a suspect in several shootings when police found guns in his home and discovered he was under a civil protective order for the alleged assault of his ex-girlfriend. The order expressly prohibited him from having firearms, and he was indicted for violating the federal domestic violence gun ban.
The three-judge panel, all Republican appointees, applied Bruen’s new framework for deciding Second Amendment cases: In order for a gun law to be constitutional, it must have an analog that is well-established in American history. Because domestic violence wasn’t recognized as a crime in the 18th and 19th centuries, the Fifth Circuit judges vacated Rahimi’s conviction and declared the ban unconstitutional. They called it an “outlier that our ancestors would never have accepted.”
The ruling affects Texas, Mississippi, and Louisiana, which the Fifth Circuit covers. Elsewhere, the law stands. The centerpiece of the federal law, the 1996 Lautenberg Amendment, still prohibits gun possession by those convicted of misdemeanor domestic violence.
On the day the Fifth Circuit issued its ruling, a district court in Kentucky came to the same conclusion, saying the government had not satisfied Bruen’s history and tradition test. The decisions come three months after a Texas district court judge ruled that the restraining order provision was unconstitutional, using similar reasoning: Domestic violence wasn’t a crime back then. “It wasn’t until the mid- to late-1970s before states enacted laws enabling civil protection orders barring domestic abusers from further abusing the victim,” Judge David Counts wrote.
The presence of guns in an abusive household significantly increases the risk of death. Domestic violence victims’ advocates say victims are most in danger when they’re trying to break with an abuser for good. That time period can include court proceedings, and many domestic violence defendants remain free during the pretrial period — which is when domestic violence restraining orders are often issued. Those victims could now be in peril in three states.
Jacob Charles, a Second Amendment scholar and associate professor at Pepperdine Caruso School of Law, said the rulings highlight Bruen’s defects. “Typically, if you look back to history and you see a regulation, it is some indication that the government felt it had a right to regulate on a matter,” he said. “Finding nothing, finding an absence, tells you nothing.”
Charles said there are any number of reasons why the historical record could be barren of analogues. Perhaps the government felt a given restriction was unnecessary or impractical. After all, background checks were not feasible until the modern day. Or maybe the government felt a given measure lacked support. Charles pointed to alcohol prohibition, which remains constitutional but is largely unpopular. Or perhaps the founders did not think that a given protection was warranted. “The right of children and wives to be safe from the violent conduct of their gun-wielding fathers and husbands was not at the forefront of their minds,” Charles said.
The federal restraining order ban is not the only longstanding gun regulation to fall as a result of Bruen’s new history and tradition test. Last fall, Counts, a Trump appointee, struck down a 54-year-old prohibition on buying guns while under indictment for certain crimes, and judges in Indiana and Oklahoma soon followed. Another Texas judge struck down the state’s ban on carrying handguns for 18-to-20-year-olds; Texas Department of Public Safety officers have now stopped enforcing it. A district judge in West Virginia struck down a 32-year-old federal law barring the removal of serial numbers from guns, and an appeals court in Tennessee struck down the ban on guns in public housing complexes. Those are just some of the most prominent examples; several cases have been sent back down to lower courts to be reevaluated using SCOTUS’s new standard for Second Amendment cases.
The Fifth Circuit is considered the most conservative appeals court in the country. But not all of the judges who have voided gun regulations since Bruen have been Trump appointees, or even Republicans. The West Virginia judge who struck down the prohibition on serial number removal, Joseph Goodwin, is a Bill Clinton appointee who said that he’d like to use other criteria when deciding whether to strike the law — like the fact that “firearms with an obliterated serial number are likely to be used in violent crime and therefore a prohibition on their possession is desirable” — but that the Supreme Court had “forbidden” him from doing so. Goodwin’s thinly veiled gripe seemed designed to get the case sent back to SCOTUS, some legal experts said.
Before Bruen, judges evaluated whether a gun law furthered an important government interest, like preventing gun violence and maintaining public safety. But in his majority opinion, Justice Clarence Thomas wrote that history and tradition were all that mattered — even though much of it is racist and sexist. American history is littered with racist laws that sought to disempower people of color and other vulnerable groups, but not spousal abusers.
In fact, “domestic violence was not deemed a criminal offense for most of American history,” Slate’s Mark Joseph Stern wrote last week:
When women were denied equal citizenship, the men who wrote and enforced the laws viewed wife-beating as a mere “familial affair” beyond the province of the courts. Legislators and judges alike saw domestic abuse as a natural part of family life, to be dealt with privately and punished only in the most extreme and murderous situations. It’s no surprise, then, that the historical record shows no history of laws keeping guns out of the hands of abusers. The very notion that men should not be allowed to abuse their wives and girlfriends is a modern belief that only developed in the 20th century.
A Mississippi judge presiding over a challenge to the felon gun ban last October addressed the difficulty of applying centuries of racist and sexist judicial history to the present day when he asked both parties to the suit whether he should appoint a historian to help him identify founding-era gun restrictions. “We are not experts in what white, wealthy and male property owners thought about firearms regulation in 1791,” he wrote.
In the Rahimi case, the Justice Department had argued that the gun ban should be upheld because domestic abusers are “dangerous persons.” As historical analogues, the Department of Justice pointed to centuries-old laws that disarmed groups deemed dangerous at the time, including enslaved people, Native Americans, and British loyalists. The DOJ lawyers were adopting an argument that holds repugnant firearms restrictions of the past, though certainly no basis for discriminatory laws, are nonetheless instances of the government having exercised a legitimate power — namely identifying dangerous actors and keeping them away from guns.
But the Fifth Circuit judges said that, in those cases, the dangerousness was determined on the basis of “class or group,” not specific threats to individual victims, and suggested that Congress has too much latitude in determining who is dangerous enough to be disarmed: “Could speeders be stripped of their right to keep and bear arms? Political nonconformists? People who do not recycle or drive an electric vehicle?”
Eric Ruben, an assistant professor of law at Southern Methodist University’s Dedman School of Law, told our reporter Chip Brownlee last July that limiting a decision to historical analogues “is an unusual way to do constitutional law. History always matters to judges and justices, but it’s just one factor. It’s ordinarily not conclusive.”
Using the strict parameters Thomas outlined in Bruen, any of our modern gun laws could be on the chopping block, Brownlee reported:
People convicted of violent felonies were not prohibited from purchasing or possessing guns under federal law until 1934. It wasn’t until the 1968 Gun Control Act when that prohibition was extended to all felonies and to people with a history of drug abuse or mental illness. Background checks were not mandated by federal law until 1994, and the National Instant Criminal Background Check System didn’t start until 1998. States didn’t begin criminalizing domestic violence until the 1900s, and federal law didn’t prohibit people convicted of domestic violence misdemeanor offenses from getting a firearm until 1996.
The DOJ has said it will challenge the decision and Charles said he expects the question to come before the Supreme Court, though it’s too soon to say how and when. He said the government may ask the entire Fifth Circuit to rehear the case, or appeal directly to the Supreme Court.
But another type of gun ban might make it there first. In a tweet after the decision, Charles pointed to a district court split over the federal gun ban for people under felony indictment. The whole concept of a “person-based prohibitor,” like a past felony conviction or history of domestic violence, might soon be under the justices’ purview, he wrote.
That might mean that gun laws once considered sacrosanct would be overturned nationwide, if the composition of the current court is anything to go by. Justice Amy Coney Barrett, while serving as a circuit judge on a federal appellate court in Chicago, argued in a 2019 dissent that gun prohibitions for people convicted of nonviolent felonies were unconstitutional.
But the court’s conservative bloc might not be in full agreement, at least according to one legal expert. Mark Joseph Stern, writing once again in Slate, said that Justice Brett Kavanaugh’s Bruen concurrence, co-signed by Chief Justice John Roberts, isn’t as extreme as Thomas’s, and hints that historical precedent might not be the only criteria judges would consider after all.