More than 200 women and men in Texas were killed by their intimate partners in 2021, according to the Texas Council on Family Violence. In an abusive dynamic, leaving an abuser is the most dangerous time for a survivor.
Often this is when a person will request a restraining order to curb threats or incidents of domestic violence, which requires some effort and proof of impending or current abuse. For almost 30 years, there’s been a federal gun ban for people who have a restraining order imposed on them.
But in a Feb. 2 ruling, a three-judge panel of 5th U.S. Circuit Court of Appeals struck down a law that made it a federal crime for those subject to a domestic violence restraining order to possess a firearm. The ruling has two major flaws: one as it relates more broadly to federal laws, the other more specific to this case.
The case that upended the law surrounded a violent Kennedale man, Zackey Rahimi, who had been involved in five shootings in the area, was selling narcotics and was subject to a civil protective order in early 2020. His crimes are not in question.
“The protective order restrained him from harassing, stalking, or threatening his ex-girlfriend and their child. The order also expressly prohibited Rahimi from possessing a firearm,” the opinion reads.
A federal grand jury indicted Rahimi on a charge of possessing a firearm while under a domestic violence restraining order in violation of the aforementioned law, and he argued it was unconstitutional. A Supreme Court ruling in an unrelated gun-rights case, New York State Rifle & Pistol Association Inc. v. Bruen, gave Rahimi a new argument — one that the 5th Circuit panel found compelling.
The Bruen ruling, one which most conservatives applauded when it happened, demands a new test for assessing firearms laws: Restrictions must be “consistent with this nation’s historical tradition of firearm regulation.”
The 5th Circuit ruling basically says in light of the Bruen case, criminals such as Rahimi can possess firearms while under a restraining order because at the time of the Constitution’s drafting, there were no domestic violence laws, or even a recognition of such a thing. Judge Cory Wilson says the ban was “an outlier that our ancestors would never have accepted.”
It seems far-reaching, even for the conservative 5th Circuit, to analyze a case in 2020 about a violent criminal and his gun rights through the lens of a time when Black slaves were counted as three-fifths of a person. Racism and sexism abounded, yet we have grown and evolved and — mercifully — recognize the rights of all, even though that wasn’t always the case. Why would the Second Amendment be excluded from the application of such changes?
Just as lawmakers — and the Supreme Court — have sided against the portion of American history that would not recognize interracial marriage, our view of domestic violence has evolved. Surely it’s one thing to interpret the Constitution how it would have been understood when it was written and another to insist that obvious societal changes can’t be incorporated.
There’s originalism and then there’s originalism and on this, the 5th Circuit seems to have, almost facetiously, gone too far. Such are the mental gymnastics of the ruling and absolute indifference toward the application of it. Under this analysis, would not all of our modern gun laws crumble?
The second reason we disagree with this ruling is the practical application of it, which ignores victims of domestic violence. Unfortunately, sometimes neither a restraining order nor a federal law prohibits abuse. But it can be a deterrent and offer victims trying to survive peace of mind.
Domestic violence victims’ advocates have long argued that victims are most susceptible to violence, via firearm or otherwise, when trying to leave an abuser, separate or get a divorce. This can take anywhere from days to years, often with a restraining order as the only barrier until the relationship is finally over. Even then, survivors of domestic violence know that some abusers tend to remain fixated on their victims for some time, so much so that it has a name: post-separation abuse.
Those trying to build a life following abuse now risk danger even more in Texas and the other states where this ruling applies. Second Amendment rights deserve vigorous protection, but like any others, they are not absolute. Even if the circumstances of a restraining order have not been fully adjudicated, they are not issued lightly, and the immediate threats to victims cannot be taken lightly, either.
Upending this law opens up victims to further abuse, and the full 5th Circuit or the Supreme Court shouldn’t let that happen. The panel’s ruling must be reversed.
