Is a law barring domestic abusers from owning guns unconstitutional? SCOTUS to decide | Opinion
On November 7, the Supreme Court heard an important case about gun rights that provides the court the opportunity to make clear that the government may regulate firearms to keep them out of the hands of dangerous people. United States v. Rahimi involves a federal law that prohibits those under a restraining order in a domestic violence case from having guns. It is a law that has saved untold numbers of lives, especially women’s lives. A federal court of appeals declared the law unconstitutional, and it is imperative that the Supreme Court reverse this and uphold the law.
From 1791, when the Second Amendment was written, until 2008, not once did the Supreme Court declare unconstitutional a federal, state or local gun regulation. In the handful of cases about the Second Amendment, the court always said that it was about protecting a right to have firearms for militia service.
Opinion
But in June 2008, in District of Columbia v. Heller, the court declared unconstitutional an ordinance that prevented owning or possessing a handgun. In a 5-4 decision, with the majority opinion written by Justice Antonin Scalia, the court held that the Second Amendment protects a right of an individual to have handguns in the home for the sake of security.
The court did not decide another case about the meaning of the Second Amendment for 14 years, until New York State Rifle and Pistol Association v. Bruen in June 2022. In a 6-3 ruling, the court declared unconstitutional a New York law that had been on the books for over a century that prohibited having a gun in public without a permit. Justice Clarence Thomas wrote the majority opinion, saying a gun regulation would be allowed only if it was of a type that was historically permitted.
The case currently before the court involves 23-year-old Zackey Rahimi, who physically abused his girlfriend. A Texas court, after a hearing, issued a restraining order against Rahimi for a two-year period which prohibited him from having a firearm and informed him that such possession would be a federal felony.
Rahimi was later the suspect in a number of crimes where a firearm was used. The police obtained a search warrant and, upon searching his home, found a number of guns and a large amount of ammunition. He was indicted for violating the federal statute forbidding those covered by a protective order in a domestic violence case from having a gun.
Rahimi asked the federal district court to declare the federal law unconstitutional. After it ruled against him, Rahimi pled guilty and was sentenced to 73 months in prison followed by three years of supervised release.
On appeal, the United States Court of Appeals for the Fifth Circuit declared the federal statute unconstitutional. The Fifth Circuit explained that there were not such laws disarming domestic abusers in 1791 when the Second Amendment was adopted, thereby making this law unconstitutional under the Supreme Court’s approach prescribed in Bruen.
This analysis is surely wrong. The fact that there were not laws against domestic violence in 1791 should not dictate a ruling today. When the Constitution was written, married women were considered the property of their husbands. They could not enter into contracts and did not have protection from physical abuse. It is absurd to limit the Constitution’s meaning in 2023 to what was thought over 200 years ago. As the United States argued in its brief, “Congress may disarm persons subject to protective orders even if the Founders did not.”
It appears from the oral arguments on November 7 that a majority of the court will uphold the law. Most likely, it will do so narrowly, concluding that even in 1791 there were restrictions on dangerous people having guns. This would also be a basis for upholding federal and state laws prohibiting convicted felons from having firearms.
Hopefully, the court will reject the purely historical approach to the Second Amendment that it adopted in Bruen and allow government regulation of guns that advance public safety. Under this, the government should be able to ban weapons like the AR-15, large capacity ammunition magazines and guns without serial numbers (also known as ghost guns).
Even better, the court could say the Second Amendment is just about a right to have guns for militia service. That, however, is a highly unlikely outcome.
Erwin Chemerinsky is the dean and a professor at the UC Berkeley School of Law.
