The US supreme court will hear oral arguments on Tuesday in a case which gun and domestic violence prevention groups are warning could be a matter of life and death for thousands of abuse victims and their families.
Tuesday’s hearing on United States v Rahimi is seen as one of the most consequential cases with which the nine justices will grapple this term. At stake is how far the new hard-right supermajority of the court will go in unraveling the US’s already lax gun laws, even as the country reels from a spate of devastating mass shootings.
Also at stake, say experts, are the lives of thousands of Americans, overwhelmingly women, threatened with gun violence at the hands of their current or former intimate partners.
The hearing will put the spotlight on a federal law that prohibits anyone under a domestic violence restraining order from possessing guns. The justices are being asked whether the law is unconstitutional on grounds that it violates the second amendment right to bear arms.
The possibility that removing guns from those deemed a domestic violence threat could be ruled unconstitutional has spread alarm among groups studying the issue. Kelly Roskam, director of law and policy at the Johns Hopkins center for gun violence solutions, has co-authored an amicus brief in the Rahimi case in which she sets out for the justices the implications of scuppering the law.
“There is no replacement in my mind for domestic violence civil protective orders,” Roskam said. “And I have no doubt that blocking them would place primarily women’s lives at risk.”
Between 2018 and 2020, 739 people were shot and killed each year by their intimate partner, according to the gun control group Brady. About 80% of the victims were women.
Research across 11 cities discovered that where a gun is present in the home, the likelihood of an abused woman being killed by a male partner increases fivefold. Overall, 1 million women living in the US today have been shot or shot at by an intimate partner.
There is also a potent link between domestic violence and mass shootings. Lisa Geller of the Johns Hopkins center found that between 2014 and 2019, 68% of the gunmen in US mass shootings had a history of domestic violence or killed at least one intimate partner or family member during the shooting.
Shocking statistics such as these have not stopped the challenge to the domestic violence gun law, known as 18 USC 922(g)(8), reaching the highest court in the country. At the center of the case is Zackey Rahimi, an individual who must be among the least appealing judicial subjects in supreme court history.
On 9 December 2019, Rahimi, a drug dealer, got into an argument with his girlfriend (identified only as CM in court documents) in a parking lot in Arlington, Texas. He allegedly shoved her to the ground, dragged her by the hair across the lot, and forced her into a car banging her head on the dashboard; when a bystander tried to object, he fired his gun at them.
Rahimi was consequently placed under a restraining order, which in turn kicked in the federal ban on him possessing guns. Yet he went on to become the suspect in five separate shootings, including firing into a private home during a drug deal, shooting at a driver in road rage, shooting a police vehicle, and firing several bullets into the air outside a fast-food restaurant after his friend’s credit card was declined.
When police searched his home they found a .45 Glock pistol and a .308 semi-automatic rifle – both illegal under the terms of the federal domestic violence ban.
That a case as extreme as Rahimi’s should have reached the supreme court is largely the result of the rightwing justices’ own doing. The six conservative supreme court justices – three of them appointed by Donald Trump – voted as a block in 2022 in New York State Rifle and Pistol Association v Bruen to allow handguns to be carried in public in all but exceptional circumstances.
Writing the opinion, Clarence Thomas, the beleaguered justice who is mired in ethics scandals, created a new standard against which the constitutionality of gun laws had to be measured. Public safety could henceforth only be considered in setting gun controls if there was a “historical tradition” to such regulations.
The ruling has spread confusion in federal courts across the country. How is such a “historical tradition” to be interpreted by judges who are, after all, jurists rather than historians?
“This guidance could not be less clear,” Roskam said. “You have to compare modern laws to historical traditions, but how close is close enough? Judges have been inserting their best guess based on what I can only presume is subjective reasoning.”
Such lack of clarity from the highest court has been evident in the response to the domestic violence gun ban. Twelve federal courts have considered the issue since Bruen was handed down, and of those, nine ruled that the ban was constitutional while three decided that it was a violation of the second amendment.
One of those three was the fifth circuit court of appeals, from which the Rahimi case originated. In the wake of Bruen, it decided to reverse its previous decision and declare the domestic violence ban on gun possession unconstitutional.
The fifth circuit, which covers the southern states of Texas, Louisiana and Mississippi, is the most radical rightwing appeals court in the US. Six of its 17 active judges were appointed by Trump.
Gun and domestic violence groups are urging the supreme court to rule that the fifth circuit drew too narrow an interpretation of “historical tradition” when it decided that there was no record of guns being prohibited on grounds of domestic danger. They point out that it would be bizarre to be literal in that interpretation, given that at the time of the nation’s founding husbands were allowed under the common law of “chastisement” to beat their wives for disobeying orders.
They also point out that throughout US history, there have been examples of dangerous individuals having their guns confiscated.
Roskam said she was “cautiously optimistic” that the justices will allow the law to stand, and in the process establish a more robust definition of the historical record. Given the recent decisions of the new hard-right supermajority, however, she remains on tenterhooks about the possible consequences of an adverse ruling.
If it comes, she can envisage the day when women stay with their abusive partners because they could not trust the law to keep them safe. “I think a lot of people are going to be living in fear,” she said.
