There are some important issues that arise in U.S. v. Rahimi, impacting the federal law that prohibits people subject to certain kinds of domestic violence protection orders (DVPO) from possessing firearms or ammunition (18 U.S.C. 922(g)(8)).

The main issue, raised by Zackey Rahimi, the appellee in this case, is that the federal firearms prohibition based on the existence of a DVPO unconstitutionally limits his Second Amendment right to possess a firearm for self-defense. Mr. Rahimi argued that only a felony conviction or mental health finding would be sufficient, and that a DVPO—issued by a civil court after notice and an opportunity to be heard—should not be enough to inhibit his right to possess guns. The 5th Circuit agreed with Mr. Rahimi.

The government argued the opposite, saying that a qualifying DVPO based on evidence that Mr. Rahimi posed a credible threat to his intimate partner or had actually used violence against his intimate partner was enough to trigger the federal domestic violence protection order firearms prohibition.

Another issue is directly related to a recent Supreme Court case, New York State Rifle Association v. Bruen. In that case, the Supreme Court adopted a new standard for deciding whether any law that limits an individual’s right to publicly carry firearms for self-defense violates the Second Amendment. The Court said that for a modern firearm restriction law to be constitutional, there must have been a similar law in the time of the Founders of our country. The Court did recognize that some modern firearms restrictions would still be valid, even if they weren’t precisely the same firearms concerns the Founders would have faced in 1791. In those cases, the Court said that if a modern law was similar enough to a historical law, then the firearms restriction could stand.

As a result of the Bruen case, Mr. Rahimi argued that a firearms prohibition based on domestic violence is not something that the Founders contemplated when they added the Second Amendment to the Constitution, as there were no laws specifically addressing firearms in domestic violence cases in the past.

The government responded that Mr. Rahimi was ignoring a clear history of laws in the late eighteenth century that restricted gun access for people who had behaved in ways that were dangerous for their communities. These laws, which addressed many kinds of offensive behavior, such as using violence against others, were similar enough in intent and outcome to current domestic violence laws that that the Bruen standard was met.

We know that the federal DVPO firearms prohibition at issue in this case is a significant tool for saving the lives of victims of domestic violence. Research tells us that nearly 14% of American women have been threatened by an intimate partner with a firearm, and 43% of these women have been physically injured with a firearm (shot, pistol-whipped, physically or sexually assaulted). The risk of intimate partner homicide of a woman increases five-fold when a male abusive partner has access to a firearm.

From 1994, with the passage of a comprehensive crime bill that included 18 U.S.C. 922(g)(8) (the same bill that included the Violence Against Women Act), until now, courts have made sure that persons who used serious, even potentially lethal, violence against their intimate partners don’t have legal access to guns. Under federal law, when a state court issues a DVPO with a finding that a person used or threatened to use serious violence or firearms threats against an intimate partner, that person is likely to be prohibited under federal law from access to firearms while that DVPO is in effect. This is an evidence-based law, based on research that shows that women are 70 times more likely to be killed in the two weeks after leaving an abuser—the time when the victim is likely to seek a DVPO—than at any other time during the relationship.

For the three decades this law has been in place, courts have issued millions of DVPOs for the protection of domestic violence victims. During the same three decades, courts have ordered the removal of firearms from persons they have judged to be a danger to their intimate partners and children. The federal DVPO prohibitor has stood as an obstacle in the way of these abusers attempting to obtain new firearms and a guarantee that any dangerous abuser who has tried to obtain a gun in violation of a DVPO will face consequences. To declare this crucial federal law unconstitutional will put countless victims at risk.

  1. This project was supported by Grant No. 15JOVW-23-GK-05140-MUMU awarded by the Office on Violence Against Women, U.S. Department of Justice. The opinions, findings, conclusions, and recommendations expressed in this program are those of the authors and do not necessarily reflect the views of the Department of Justice, Office on Violence Against Women.

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