5th Circuit: Domestic Violence Orders Don’t Cancel Gun Rights

The Fifth Circuit Court of Appeals recognized a massive expansion of the Second Amendment and gun rights on Thursday, Feb. 2. A three-judge panel from the court – two appointed by Donald Trump and one by Ronald Reagan – has overturned a federal law that makes it a crime for people under domestic violence restraining orders to own firearms. The ruling restored gun rights for many thousands of Americans. The judges said the Supreme Court’s 2022 ruling in New York State Rifle & Pistol Association, Inc. v. Bruen mandated the result.

Fifth Circuit for The Win

18 U.S. Code Chapter 44 – FIREARMS § 922(g)(8) prohibits possession of firearms by people subject to a domestic violence protection order. However, Erich Pratt, the chief spokesman for Gun Owners of America, told Liberty Nation this law is no longer valid in the Fifth Circuit (Texas, Louisiana, and Mississippi), “because of the provision at issue, which purports to revoke Second Amendment rights without prosecution and conviction of a crime, it is obviously unconstitutional, and we are hopeful the Supreme Court will concur with this ruling in the future to fully restore the Second Amendment rights of Americans nationwide.”

U.S. v. Rahimi is the case name, brought not by Second Amendment civil rights groups but by Zackey Rahimi’s public defenders. The court says he was “involved in five shootings in and around Arlington, Texas” over 13 months. Police found Rahimi with firearms, which he admitted to possessing. Because he was already the subject of a protective order from a former girlfriend, Rahimi was successfully prosecuted for violating 922(g)(8). Mr. Rahimi is a real mean hombre, and precisely the kind of person society would want to keep from having a gun. The judges on the case recognized, however, that wasn’t the issue before them. Judge Cory Wilson, a Trump appointee, wrote the court’s opinion:

"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. The question is whether 18 U.S.C. § 922(g)(8), a specific statute that does so, is constitutional under the Second Amendment of the United States Constitution. In the light of N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, it is not."

Judge James C. Ho, the other Trump appointee on the panel, wrote, “the Supreme Court has called on judges to be more faithful guardians of the text and original meaning of the Second Amendment.” Ho said he was “pleased to concur” and that the result in Rahimi “dutifully follows” the Bruen case.

Bruen’s Impact on Gun Rights

In Bruen, Justice Thomas wrote for the Court’s 6-3 majority that government regulations must be more than simply important:

"Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’”

What puts 922(g)(8) outside that historical tradition? Domestic violence protection orders are creations of civil courts. Defendants have many fewer rights and protections in civil proceedings versus criminal ones. First and foremost is the legal burden of proof before a judgment against them may be entered. Beyond a reasonable doubt is the criminal standard required versus a preponderance of the evidence, often called “more likely than not,” for civil orders. The Supreme Court said the Second Amendment protects a fundamental right equal to the others in the Bill of Rights. So, it stands to reason the right protected can’t be removed without serious proceedings, including protections for the accused.

SCOTUS, and Soon

Because of this split in the circuits, we can expect an appeal to the Supreme Court and for them to accept it expeditiously. The issue might even see action on the Court’s emergency docket this term, as well it should. Indeed, attorneys in every other circuit are now preparing to file cases for their clients convicted of violating 922(g)(8). Estimates suggest over a million Americans are subject to these restraining orders at any time.