The Fifth Circuit's decision in United States v. Rahimi, which held that the federal statute prohibiting possession of a firearm by a person subject to a domestic violence restraining order violates the Second Amendment, has managed to stay in the news for longer than most circuit court decisions. On March 2, a month after it initially released its decision, the Fifth Circuit panel withdraw its original opinion and substituted a revised version.
The end result is the same, and the updates to the controlling opinion appear to be modest, but Judge Ho significantly expanded his concurring opinion, in which he sets out to "explain how respect for the Second Amendment is entirely compatible with respect for our profound societal interest in protecting citizens from violent criminals." Judge Ho emphasizes that "[t]hose who commit violence, including domestic violence, shouldn't just be disarmed—they should be detained, prosecuted, convicted, and incarcerated." But because the law at issue in Rahimi "disarms individuals based on civil protective orders—not criminal proceedings," the panel found no "analogous historical tradition sufficient to support" it. That was especially true, given the way that civil protective orders are used (and abused) in our system, including by a common practice of issuing "mutual restraining orders" in domestic violence cases, a practice that results in the federal prohibition actually disarming domestic violence victims.
Judge Ho's concurrence also highlights the importance of the Fifth Circuit getting this case right. He notes that before Bruen, circuit courts routinely misapplied Heller despite frequent criticism from the members of the Supreme Court that they were "disfavoring the Second Amendment." And he correctly recognizes that Bruen was a response to the lower courts' intransigence: "The Supreme Court has now responded by setting forth a new legal framework in Bruen. It is incumbent on lower courts to implement Bruen in good faith and to the best of our ability."
