The Ruling Upholding the Gun Rights of People Subject to Restraining Orders Is Not As Crazy As You Might Think

The 5th Circuit noted that such orders can be issued without any credible evidence of a threat to others.

The Biden administration is asking the Supreme Court to reverse a recent decision in which an appeals court concluded that the federal ban on gun possession by people subject to domestic-violence restraining orders violates the Second Amendment. In a petition filed this month, Solicitor General Elizabeth Prelogar portrays that law as a commonsensical precaution that is "consistent with the Nation's historical tradition of firearm regulation"—the constitutional test that the Court established last year in New York State Rifle & Pistol Association v. Bruen. But there are reasons to doubt that the "historical analogues" cited by the government are close enough and ample cause to worry about the threat that the policy it is defending poses to civil liberties.

Under 18 USC 922(g)(8), which Congress enacted in 1994, it is a felony, currently punishable by up to 15 years in prison, for someone to possess firearms when he is "subject to a court order" that restrains him from "harassing, stalking, or threatening an intimate partner" or "engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury." The provision requires that the order be issued after a hearing of which the respondent received notice. It also says the order must either include a finding that the respondent "represents a credible threat" to the intimate partner's "physical safety" or explicitly prohibit "the use, attempted use, or threatened use of physical force" that "would reasonably be expected to cause bodily injury."

The man at the center of this case, a Texas drug dealer named Zackey Rahimi, was convicted of violating Section 922(g)(8) in circumstances that suggest he is exactly the sort of person who should not be trusted with firearms. But his conduct allegedly included a string of violent crimes that would themselves disqualify him from owning guns. The question raised by this case is not whether someone like Rahimi should be allowed to own guns. It is whether the government violates the Second Amendment when it deprives people of the right to armed self-defense based on nothing more than a restraining order that may have been issued without any credible evidence that the respondent poses a danger to others.

When it overturned Rahimi's conviction in February, the U.S. Court of Appeals for the 5th Circuit noted that he is "hardly a model citizen," which is putting it mildly. In December 2019, Prelogar notes, "Rahimi and his girlfriend C.M. had an argument in a parking lot in Arlington, Texas. C.M. tried to leave, but Rahimi grabbed her wrist, knocking her to the ground. He then dragged her back to his car, picked her up, and pushed her inside, causing her to hit her head on the dashboard. Realizing that a bystander had seen him, he retrieved a gun and fired a shot. In the meantime, C.M. escaped the car and fled the scene. Rahimi later called her and threatened to shoot her if she told anyone about the assault."

Two months after that incident, a Texas judge issued a two-year restraining order against Rahimi that met the requirements of Section 922(g)(8). Rahimi was notified of the hearing but did not attend.

In August 2020, Prelogar says, Rahimi "tried to communicate with C.M. on social media and approached her house in the middle of the night, prompting state police to arrest him for violating the order." That November, "he threatened another woman with a gun, leading the State of Texas to charge him with aggravated assault with a deadly weapon."

Wait. There's more:

Rahimi then participated in a series of five shootings in December 2020 and January 2021, First, after someone who had bought drugs from him "started talking 'trash'" on social media, he went to the man's home and fired bullets into it using an AR-15 rifle. The next day, after colliding with another vehicle, he alighted from his car, shot at the other driver, fled, returned to the scene, fired more shots at the other car, and fled again. Three days later, Rahimi fired a gun in the air in a residential neighborhood in the presence of young children. A few weeks after that, a truck flashed its headlights at Rahimi when he sped past it on a highway; in response, Rahimi slammed his brakes, cut across the highway, followed the truck off an exit, and fired multiple shots at another car that had been traveling behind the truck. Finally, in early January, Rahimi pulled out a gun and fired multiple shots in the air after a friend's credit card was declined at a fast-food restaurant.

The investigation prompted by those incidents resulted in state charges against Rahimi. It also resulted in his conviction under Section 922(g)(8). He appealed that conviction, arguing that the provision was inconsistent with the Second Amendment. But the 5th Circuit had already ruled, back in 2001, that Section 922(g)(8) was constitutional, and it did so again in Rahimi's case last year, taking into account what the Supreme Court had said about the Second Amendment in the meantime.

The 5th Circuit's decision was published on June 8, two weeks before the Supreme Court's decision in Bruen, which concluded that New York had violated the Second Amendment by demanding that residents show "proper cause" for exercising the right to bear arms. Bruen explicitly rejected the sort of two-step analysis that the 5th Circuit had applied in assessing the constitutionality of Section 922(g)(8).

Under that approach, a court first asked whether the conduct prohibited by a gun control law was covered by the Second Amendment. If so, the court weighed the law's purported public safety benefits against its restriction of gun rights, applying either strict or intermediate scrutiny. Bruen replaced that approach with a historical test that asks whether a challenged law is "relevantly similar" to regulations that have traditionally been seen as consistent with the original understanding of the right to keep and bear arms.

Reconsidering Rahimi's case in light of Bruen, the 5th Circuit concluded that the government had failed to meet that test. The government cited three kinds of gun regulations: 1) laws authorizing the disarmament of "dangerous" individuals, 2) laws against "going armed" in a threatening manner, and 3) laws that required people to post a "surety" before carrying guns in public when they allegedly posed a threat to particular individuals.

"The purpose of laws disarming 'disloyal' or 'unacceptable' groups was ostensibly the preservation of political and social order, not the protection of an identified
person from the threat of 'domestic gun abuse,'" Judge Cory T. Wilson notes in a February 2 opinion for a unanimous 5th Circuit panel that also included Judges James C. Ho and Edith H. Jones. "Thus, laws disarming 'dangerous' classes of people are not 'relevantly similar' to § 922(g)(8) such that they can serve as historical analogues."

The 5th Circuit also thought the four colonial or state laws against "going armed" cited by the government did not bear a constitutionally relevant resemblance to Section 922(g)(8). A 1786 Virginia statute, for example, made it a crime to "go or ride armed by night or by day, in fairs or markets, or in other places, in terror of the country." It authorized the arrest and imprisonment of any violator, who would then "forfeit his armour to the Commonwealth."

Wilson notes that Virginia and Massachusetts "dropped forfeiture as a penalty" in 1795 and 1847, respectively, while North Carolina's law never included such a provision. "It is unclear how long New Hampshire's 'going armed' law preserved its forfeiture provision," he says. But even assuming that it persisted longer than the others, Wilson says, "one outlier is not enough 'to show a tradition of public carry regulation.'"

Wilson adds that the "going armed" laws "only disarmed an offender after criminal proceedings and conviction." By contrast, Section 922(g)(8) "disarms people who have merely been civilly adjudicated to be a threat to another person" or "are simply governed by a civil order that 'by its terms explicitly prohibits the use, attempted use, or threatened use of physical force,' whether or not there is a 'credible threat to the physical safety' of anyone else."

Wilson also notes that the "going armed" laws were aimed at "disarming those who had been adjudicated to be a threat to society generally, rather than to identified individuals." Furthermore, Section 922(g)(8) "works to disarm not only individuals who are threats to other individuals but also every party to a domestic proceeding (think: divorce court) who, with no history of violence whatever, becomes subject to a domestic restraining order that contains boilerplate language" meeting the law's criteria. While "going armed" statutes "were tied to violent or riotous conduct and threats to society," Wilson writes, Section 922(g)(8) "implicates a much wider swath of conduct, not inherently dependent on any actual violence or threat."

Wilson concedes that the surety laws more closely resemble Section 922(g)(8), since they were aimed at protecting specific complainants and required a civil proceeding rather than a criminal conviction. But those laws, he notes, allowed people to continue carrying arms in public as long as they posted a surety, and the restrictions did not apply to private possession. While "the surety laws imposed a conditional, partial restriction on the Second Amendment right," he says, Section 922(g)(8) "works an absolute deprivation of the right, not only publicly to carry, but to possess any firearm, upon entry of a sufficient protective order."

In a concurring opinion, Ho elaborates on the concern that Wilson mentions: that people can be subject to restraining orders that meet the federal criteria, and therefore deprived of the right to armed self-defense, even when they pose no real threat of violence to others. "Scholars and judges," he writes, "have expressed alarm that civil protective orders are too often misused as a tactical device in divorce proceedings—and issued without any actual threat of danger."

Such orders "can help a party in a divorce proceeding to 'secure [favorable] rulings on critical issues such as [marital and child] support, exclusion from marital residence and property disposition,'" Ho notes. They "can also be 'a powerful strategic tool in custody disputes.'" Because of those incentives, he says, protective orders are "a tempting target for abuse."

Nor can judges be counted on to prevent such abuse. "Family court judges may face
enormous pressure to grant civil protective orders—and no incentive to deny them," Ho writes. "For example, family court judges may receive mandatory training in which they're warned about 'the unfavorable publicity' that could result if they deny requests for civil protective orders." Because of that pressure, protective orders "are granted to virtually all who apply."

Ho cites a couple of examples of questionable orders. In one case, "a family court judge granted a restraining order on the ground that the husband told his wife that he did not love her and was no longer attracted to her," even though "there was no prior history of domestic violence." In another case, a judge "issued a restraining order against David Letterman on the ground that his presence on television harassed the plaintiff."

Ho adds that "the consequences of disarming citizens under § 922(g)(8) may be especially perverse considering the common practice of 'mutual' protective orders." In a domestic violence dispute, he says, "a judge may see no downside in forbidding both parties from harming one another." The result can be that "both parties are restrained even if only one is an abuser." In such cases, Section 922(g)(8) "effectively disarms victims of domestic violence," potentially putting them "in greater danger than before." The provision "effectively empowers and enables abusers by guaranteeing that their victims will be unable to fight back."

What should be done, then, with people like Rahimi, who clearly posed a threat not only to his girlfriend but also to his customers and to random members of the public? Ho thinks the answer is obvious: Such demonstrably dangerous individuals should be arrested, prosecuted, convicted, and incarcerated, which would simultaneously punish them for their crimes, keep them away from people they might harm, and prevent them from legally owning guns.

That solution may strike victims of domestic violence as naive and inadequate. Rahimi's girlfriend, after all, said he threatened to kill her if she reported his 2019 assault on her. While that did not prevent her from seeking a restraining order, victims might be too fearful to press criminal charges or unwilling to go through the emotional ordeal that would entail.

It nevertheless seems clear that the current policy sweeps too broadly by disarming people, potentially including victims of domestic abuse, even when they have no history of violence or threats. That reality certainly seems relevant in assessing the government's claim that people subject to restraining orders are ipso facto in the same category as "dangerous" individuals who historically have been deemed unfit to own guns.