Zackey Rahimi, a Texas drug dealer with a history of gun violence, is ‘hardly a model citizen’, a federal appeals court judge written in March, with considerable understatement. But the court overturned Mr. Rahimi’s conviction under a federal law that makes it a crime for people subject to domestic violence orders to own a gun, ruling that the law violates the Second Amendment.
Next week, the Supreme Court will consider whether to hear an appeal of that decision, which applied a history-based test to establish that the government was unable to disarm Rahimi under the domestic violence law. The chances of the judges agreeing to hear the case are good.
The case began in 2019, when Mr. Rahimi assaulted his girlfriend and threatened to shoot her if she told anyone, leading to her getting a restraining order. The order suspended Mr. Rahimi and forbade him to own firearms.
Mr. Rahimi flagrantly defied the order, according to court documents.
He threatened another woman with a gun, leading to charges of assault with a deadly weapon. Then, in the span of two months, he opened fire in public five times.
Upset over a social media post from someone he sold drugs to, for example, he fired an AR-15 rifle into his former client’s home. When a fast-food restaurant declined a friend’s credit card, he fired several bullets into the air.
The shootings resulted in a warrant to search Mr. Rahimi’s home, which uncovered weapons, and he was charged with violating federal law.
After a judge rejected his Second Amendment challenge to the law, he pleaded guilty and was sentenced to more than six years in prison. The United States Court of Appeals for the Fifth Circuit at first affirmed the conviction of him in a short decisionrejecting in a footnote the argument that the law violated the Second Amendment.
But the appeals reversed course after the Supreme Court issued a decision last June setting up a new test to decide whether gun control laws are constitutional, one that centers on history.
Based on that test, a unanimous panel of three Fifth Circuit judges ruled that the law prohibiting people subject to domestic violence orders from owning firearms violated the Second Amendment because there was no historical support for it.
Next week, nearly a year after the Supreme Court announced the new approach New York State Pistol and Rifle Association v. Bruen, the judges will meet to discuss whether to hear the Biden administration’s appeal. The court often hears appeals against decisions declaring federal laws unconstitutional.
The case, United States vs. RahimiNo. 22-915, would give the court a chance to explore the scope of its new test, which requires the government to identify historical analogs to justify laws that limit Second Amendment rights.
Overall, Justice Clarence Thomas wrote in his majority opinion in Bruen, the Second Amendment protects the rights of « an ordinary, law-abiding citizen. » And there is, the Biden administration he told the judges in the new case, « strong historical evidence supporting the general principle that government can disarm dangerous individuals ».
But the Fifth Circuit rejected a set of older laws the government identified as possible analogues, saying they didn’t closely resemble the one dealing with domestic violence orders. Many of them, Judge Cory T. Wilson wrote for the panel, « unarmed classes of people considered dangerous, particularly including those unwilling to take the oath of allegiance, slaves and Native Americans. » It was different, she wrote, from domestic violence orders, which make case-by-case judgments about how dangerous a particular individual is.
Administration lawyers questioned that distinction. « It would be bizarre, » they wrote, « if lawmakers could disarm dangerous individuals based on categorical presumptions, but not individualized judicial findings after notice and a hearing. »
Judge Wilson, appointed by President Donald J. Trump, wrote that the government’s insistence that it can disarm lawbreakers « admits no real limiting principle. »
« Could speeders be deprived of the right to keep and bear arms? » he asked her. “Political mavericks? People who don’t recycle or drive an EV?
Justice Wilson admitted that the contested law « embodied wholesome policy goals intended to protect vulnerable people in our society. » But he said the approach required by the Bruen decision did not allow courts to weigh the law’s benefits against its burdens. What was important, he wrote, citing that decision, was that « our ancestors would never have accepted » the law on domestic violence orders.
Judge James C. Hoalso a Trump appointee, he expressed a concurring opinion that there were better ways to protect victims of domestic abuse.
“Those who commit violence, including domestic violence,” he wrote, “should not simply be disarmed, they should be detained, prosecuted, convicted and jailed. And that’s exactly why we have a criminal justice system: to punish criminals and prevent them from committing further crimes. »
But Judge Ho said domestic violence orders are products of the civil justice system and are subject to abuse.
“Scholars and judges have expressed alarm that civil defense orders are too often misused as a tactical device in divorce proceedings and issued without any real threat of harm,” he wrote. « This makes it difficult to justify » the law that Mr. Rahimi contested « as a measure to disarm dangerous individuals ».
In a brief solicitation from the Supreme Court to deny the review, Mr. Rahimi’s lawyers said domestic violence is not a new phenomenon. “The founders could have adopted a blanket ban on firearms to combat partner violence,” their brief said. « They didn’t. »