On November 7, 2023, the Supreme Court will hear oral arguments in the case United States v. Rahimi, which considers whether federal domestic violence firearm prohibitions are constitutional. Our colleagues at the Regional Gun Violence Research Consortium recently wrote about the lifesaving impact that domestic violence firearm prohibitions—including the types of restrictions associated with certain domestic violence convictions or those gun violence restraining orders at issue in this case—can have in instances of intimate partner violence. Nearly 20 people per minute are physically abused by an intimate partner in the United States. According to data from the Centers for Disease Control, in 2019, 607 women were murdered by an intimate partner with a gun, and that number rose to 665 in 2020 during the COVID-19 pandemic. Nearly half of all women who are murdered are killed by a gun. And half of all female homicides are committed by intimate partners.
In this blog, we will cover the background of the laws that established federal firearm prohibitions—the Violence Against Women Act and the Lautenberg Amendment—and explain why the Fifth Circuit Court of Appeals argued that domestic violence firearm laws (DVFL) violated the Second Amendment to the Constitution.
The Rahimi Case
In 2020 and 2021, Zackey Rahimi was involved in multiple shootings in Texas. After he was named a suspect and officers searched his home, they found two firearms. Rahimi told the officers he was under a civil protection order after an accusation of assault by his former girlfriend, whereby he was prohibited from possessing a firearm. Rahimi was charged in federal court for possessing a firearm in violation of his restraining order and originally pled guilty, but appealed the case on the underlying question of whether the indictment against him was constitutional. Initially the appeals court upheld it, but once New York State Rifle & Pistol Association v. Bruen (2022) was decided, the appeals court reconsidered the case and Rahimi was allowed to proceed, arguing that these charges were unconstitutional.
Bruen was decided with a 6–3 majority and essentially found that any laws restricting firearm access would need to be deemed reasonable at the time of the founding of the United States; otherwise, they could not be upheld. Although the Court appears to have wanted to keep this rubric confined to firearms, the Rahimi decision brings it into the realm of domestic violence, which was not considered a crime 200 years ago. It is difficult to know if the framers of the Constitution would have believed it reasonable to keep a firearm out of the hands of domestic abusers because such abuse was not illegal. If, following from Bruen, the Court upholds that an issue or law had to be recognized at the time of the nation’s founding, domestic violence would likely not qualify as being recognized, and broader existing federal protections for intimate partners in general and women’s safety in particular, such as prohibitions on stalking or making cyber threats, may not withstand legal scrutiny.
Existing Federal Domestic Violence Firearm Restrictions
The federal government passed the first major domestic violence legislation nearly 30 years ago. In 1994, then-Senator Joseph Biden (D-DE) led the successful passage of the Violence Against Women Act (VAWA), four years after he first sponsored it. Among the many things that the VAWA accomplished—including creating the Office on Violence Against Women (OVW) and numerous grant programs to address domestic violence and its impact on various communities—were restrictions on firearm access to individuals who were convicted of felony domestic violence or who were under a restraining order related to domestic violence.
These restrictions were further bolstered in 1996 after Frank Lautenberg (D-NJ) was successful in extending restrictions to those who were convicted of domestic violence misdemeanors as well. Despite these strong federal restrictions on firearm access, they are unevenly enforced. States can expand enforcement efforts by passing their own versions of these laws. However, some states have even explicitly prohibited their officials from implementing any federal-level gun control laws, including ones pertaining to domestic violence (DV). Many states have decided not to adopt their own DVFLs: as of this writing, 28 states have laws on the books that enact The Lautenberg Amendment removing firearm access to DV misdemeanants. Thirty-five states align state law with VAWA by prohibiting abusers under DV restraining orders from possessing or buying a firearm—the law under direct scrutiny in the Rahimi case. Again, keep in mind that VAWA already restricts this federally but does not include a mechanism to encourage or ensure that states enforce this provision—states that do not comply with this VAWA provision, for example, are still receiving OVW funding.
The importance of the Supreme Court decision in Rahimi extends well beyond the issue of domestic violence law and implementation. If judicial precedent in 2023 now rests on laws that did or did not exist 200 years ago, key legal protections that facilitate equality could be threatened in the United States.
While related, the Lautenberg Amendment we discussed above, which removes firearm access from DV misdemeanants, is not the law in question in this case. We mention it because it is an extension of VAWA and, therefore, could be subsequently struck down if the restraining order provision of VAWA is deemed unconstitutional. In general, implementation of federal law tends to be more forceful in states that have passed corollary laws. Moreover, states can craft their own laws to expand the scope of domestic violence policy to include more categories of victims or delineate a range of circumstances that would require or allow the removal of a firearm from a place where a domestic violence incident occurred.
In our recent book, Inequality Across State Lines: How Policymakers Have Failed Domestic Violence Victims in the United States, we argue that the lack of consistent implementation of federal DV firearm laws at the state level is highly problematic because it creates varying levels of protection from domestic violence by firearms based solely on where a victim may live. Now, as a result of a recent ruling from the Fifth Circuit Court of Appeals in United States v. Rahimi that declared unconstitutional the prohibition to own or possess a gun under a restraining order, that uneven protection of those impacted by domestic violence, particularly women, is likely to get a lot worse. The importance of the Supreme Court decision in Rahimi extends well beyond the issue of domestic violence law and implementation. If judicial precedent in 2023 now rests on laws that did or did not exist 200 years ago, key legal protections that facilitate equality could be threatened in the United States. Moreover, social and cultural change typically produce new issues for consideration by government and the courts. In addition to domestic violence, we could point to racial justice, voting rights, workplace safety, gender discrimination, reproductive rights, and LGBTQ+ marriage protections that each did not exist as issues or laws at the time of our nation’s founding.
In light of the Supreme Court ruling in the Bruen case, the Court of Appeals ultimately agreed with Rahimi that firearm prohibitions for those under domestic violence restraining orders were unconstitutional. This is because, according to Bruen, any firearm regulation “must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” The Appeals Court also argued that there are other ways that the government can limit potential violence from domestic violence abusers, namely by arresting them in pretrial detention or convicting them of abuse. The justices also argued that because unfounded charges of domestic violence can be used in divorce proceedings, violating an individual’s constitutional right to own a firearm is essentially too great a denial of civil liberties to justify upholding the VAWA provision. They went on to argue that when mutual restraining orders are issued in domestic cases, even alleged victims of abuse are prevented from exercising their Second Amendment rights. On these grounds, the Fifth Circuit struck down the part of VAWA that prevented abusers under domestic violence restraining orders from accessing firearms.
The US Justice Department appealed the Fifth Circuit Court ruling in Rahimi and the Supreme Court granted the case writ of certiorari meaning that they will review the case. The justices will have to decide whether the federal government can prohibit domestic violence offenders from accessing a firearm. There have been multiple amicus briefs filed on Rahimi, including one signed by 170 sitting House and Senate members asking to overturn the decision and sustain prohibitions against firearm ownership or possession under DV restraining orders. Ultimately, the Supreme Court must weigh the protection of victims of domestic abuse against a possible violation of Second Amendment rights for a small portion of individuals who have not committed abuse but are still subject to restraining orders.
It is important to note that portions of both VAWA and the Lautenberg Amendment have previously come before the Supreme Court in United States v. Hayes (2009), United States v. Castleman (2014), and Voisine v. United States (2016). In each of these cases, the Court, both liberal and conservative members, upheld these firearm laws. Moreover, Justice Clarence Thomas wrote in the majority opinion in Bruen that the Second Amendment protected “an ordinary, law-abiding citizen.” If the Court narrows its scope to Rahimi himself, it may choose to leave these protections in place on the grounds that he was not a law-abiding citizen; he was suspected of multiple shootings and he had agreed to be under a civil protection order for domestic abuse, despite not being convicted of that crime. But if the Court chooses to reaffirm its rationale for deciding the Bruen decision, it may choose to strike down key provisions of federal law that currently keep firearms out of the hands of individuals under domestic violence restraining orders. Perhaps we will glean something from the questions the Justices put forward during oral arguments scheduled in November. The future efficacy of federal domestic violence policy will be at issue.
ABOUT THE AUTHORS
Kaitlin N. Sidorsky is an associate professor of political science and public policy at Ramapo College of New Jersey and a member of the Regional Gun Violence Research Consortium (RGVRC) at the Rockefeller Institute of Government.
Wendy J. Schiller is the Alison S. Ressler professor of political science, professor of public & international affairs, and director of the A. Alfred Taubman Center for American Politics and Policy at Brown University, and a member of the Regional Gun Violence Research Consortium (RGVRC) at the Rockefeller Institute of Government.