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united states v. rahimi
Disarming Domestic Abusers Can Protect Us All
A federal law banning those convicted of domestic violence from purchasing a gun is an approach supported by 81 percent of those self-identifying as Republicans and 91 percent of self-identified Democrats polled.
Nov 06, 2023
Before the Lewiston, Maine spree shooting suspect began voicing plans to “shoot up” his community, there was already a red flag that he might someday commit a mass shooting. The same red flag was also present well before a Florida Republican donor shot his wife and then killed himself in a restaurant parking lot three weeks ago in Palm Beach, Florida. The same red flag had been flapping wildly for years before a shooter took the life of a Judge in Maryland four weeks ago. Each of the shooters, now all dead by suicide, had the same red flag waving from their past: domestic violence. Indeed, one of the strongest indicators that someone will commit gun violence, particularly a mass shooting, is if that person has previously committed violence against an intimate partner or family member.
As City Attorney of San Diego, I have used our state’s red flag laws, also known as gun violence restraining orders (GVROs), to disarm over a thousand truly dangerous people, a third of them domestic abusers. Having this common sense intervention available to law enforcement and the public is one of the reasons why California also has 43% fewer gun deaths than the rest of the country. Since California’s red flag law went into effect seven years ago, GVROs have been credited with disarming 58 potential mass shooters who had threatened to commit large-scale gun violence. Of the individuals who had firearms temporarily removed with a GVRO, nearly a third had an assault-type weapon such as an AR or AK-style rifle.
The eponymous case of Zackey Rahimi demonstrates precisely why Red Flag laws are so critical to the safety of communities and illustrates how the gun lobby’s efforts make our country less safe.
Focusing on the use of GVROs to reduce the impacts of domestic violence is key to protecting those experiencing abuse, but it can also protect entire communities. In the U.S., domestic violence has been identified as a common factor in nearly 70 percent of fatal mass shootings, meaning the perpetrator first killed a partner or family member or had a history of domestic abuse. It was the case in Sandy Hook, it was the case in Majorie Stillman Douglas High School, it was the case in Robb Elementary, it was the case in Pulse NIghtclub, and it was the case in the most recent spree shooting in Lewiston. The use of GVROs and Domestic Violence Restraining Orders (DVROs) in cases of domestic violence is constitutionally consistent with the Second Amendment to the United States Constitution. However, next month, the Supreme Court will hear United States v. Rahimi, which examines whether federal law can prohibit someone subject to a qualifying domestic violence restraining order from having a gun.
The eponymous case of Zackey Rahimi demonstrates precisely why Red Flag laws are so critical to the safety of communities and illustrates how the gun lobby’s efforts make our country less safe. In United States v. Rahimi, Rahimi pled guilty in 2021 to possessing guns in violation of a federal law, 18 USC § 922(g)(8), that makes it a crime to possess guns when you are the subject of a qualifying domestic violence restraining order.
Rahimi had such a protective order against him because of his actions against his ex-girlfriend, with whom he has a young child, and after he was involved in six separate shooting incidents around Arlington, Texas, a search of his bedroom turned up a pistol with an extended magazine and a semi-automatic rifle. A federal grand jury indicted him for possessing the guns, but his lawyers challenged the constitutionality of prosecuting him. The U.S. Fifth Circuit Court of Appeals ultimately sided with Rahimi, ruling that the Second Amendment prevents the government from barring individuals subject to qualifying domestic violence protective orders from possessing a gun. The U.S. Solicitor General’s Office appealed to the U.S. Supreme Court, which agreed to hear the case.
Americans overwhelmingly want restrictions on gun ownership in domestic violence scenarios. Indeed, a federal law banning those convicted of domestic violence from purchasing a gun is an approach supported by 81 percent of those self-identifying as Republicans and 91 percent of self-identified Democrats polled. The issue the public has with red flag laws isn’t a lack of support for them but rather a lack of awareness of them. Most Americans in the 21 states with red flag laws are unaware this powerful, relatively new crisis intervention tool is available to disarm a dangerous situation. Though gun violence restraining orders had been available in California for five years, two-thirds of the Californians surveyed had no knowledge of them. As we desperately search for solutions, spreading awareness on how the public can use these laws right now may be the fastest and most effective way to address one of the most chronic patterns in our nation’s gun violence epidemic.
This op-ed was distributed by American Forum.
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Supreme Court Will Decide Whether Domestic Abusers Have Right to Bear Arms
The court is now poised to expand the reach of the Second Amendment yet again, continuing a process that began in 2008, when it sold its soul to the gun lobby in District of Columbia v. Heller.
Aug 12, 2023
Should individuals subject to domestic violence restraining orders be allowed to own guns? If you think the answer is a screaming, obvious “No,” you haven’t been paying much attention to the Supreme Court’s radical reinterpretations of the Second Amendment over the past 15 years. The court will be asked to decide the issue in United States v. Rahimi when it reconvenes in October.
At the center of the case is Zackey Rahimi, a 23-year-old with a history of violence and drug dealing. In December 2019, Rahimi beat up his girlfriend in a parking lot in Arlington, Texas, and tried to shoot a bystander who had witnessed the attack. Two months later, his girlfriend obtained a restraining order from a state court judge that prohibited him from harassing her, and barred him from possessing a firearm.
It didn’t take Rahimi long to resume his menacing ways. In August 2020, he was arrested for stalking his ex; in November, he threatened another woman with a gun. In December 2020 and January 2021, he participated in a series of five shootings in the Arlington area. Police in Arlington identified him as a suspect in the shootings and obtained a warrant to search his home, where they uncovered a .45- caliber pistol, a .308-caliber rifle, pistol and rifle magazines, additional rounds of ammunition, approximately $20,000 in cash, and a copy of the restraining order Rahimi had flagrantly violated.
“The justices are going to be understandably reluctant to say that domestic abusers have a right under the Second Amendment to possess firearms.”
In both Bruen and Dobbs v. Jackson Women’s Health Organization, in which the Supreme Court overturned Roe v. Wade the day after it decided Bruen, the court abandoned the methods of judicial scrutiny that judges have long used to determine the constitutionality of challenged laws by balancing the governmental interests advanced by the laws in question against the competing rights of individuals affected by the laws. In place of such interest-balancing, the Supreme Court substituted an “originalist” test based exclusively on the justices’ highly selective reading of history and their sense of tradition.
Applying Bruen’s history and tradition standard to domestic violence, the 5th Circuit held that while section 922(g)(8) “embodies salutary policy goals meant to protect vulnerable people in our society”…it is “an [historical] outlier that our ancestors would never have accepted.”
The sexism of the 5th Circuit’s reasoning is blatant. By “our ancestors,” the circuit had in mind the views and interests of the wealthy white men who drafted and debated the merits of the Constitution during the “founding era” at the close of the 18th century. Excluded from the court’s opinion is any mention of the views or interests of the women of that era, who not only lacked the right to vote, but also had no legal protections against domestic violence.
The Justice Department moved quickly to petition the Supreme Court to review the 5th Circuit’s decision, and on June 30, the last day of its 2022-23 term, the court agreed to hear the case.
The Supreme Court is now poised to expand the reach of the Second Amendment yet again, continuing a process that began in 2008, when it sold its soul to the gun lobby with its 5-4 majority opinion written by the late Antonin Scalia in District of Columbia v. Heller, that held for the first time that the Second Amendment protects an individual right to own firearms.
Prior to Heller, the great weight of academic scholarship as well as the court’s 1939 decision in United States v. Miller had construed the Second Amendment, in keeping with the actual debates of the Constitutional Convention, as protecting gun ownership only in connection with service in long-since antiquated state militias.
In 2010, the court again genuflected to the gun lobby. In another 5-4 opinion in McDonald v. Chicago, this time written by Samuel Alito, the court extended Heller, holding that the individual right to keep and bear arms is “incorporated” by the 14th Amendment’s due process clause and is therefore applicable to the states and local governments.
Last year’s Bruen decision was decided on a 6-3 vote, with all the court’s Republican appointees, including Chief Justice John Roberts, joining Clarence Thomas’ majority opinion.
Still, there is some cause for optimism. Rahimi is an especially ugly standard-bearer for gun-rights groups. “In some ways Rahimi…is the best case for gun safety advocates,” UCLA law professor Adam Winkler told USA Today in a recent interview. “The justices are going to be understandably reluctant to say that domestic abusers have a right under the Second Amendment to possess firearms.”
To date, no gun-rights groups have filed amicus (“friend of the court”) briefs on Rahimi’s behalf with the Supreme Court, although representatives from both the Second Amendment Foundation and Gun Owners of America told USA Today that they planned to do so.
In the meantime, the court remains mired in a crisis of legitimacy that has seen its public approval ratings plummet to all-time lows. A ruling in Rahimi’s favor will likely aggravate that crisis, and for good reason. Every month an average of 70 women are killed by an intimate partner—some of whom had protection orders against their killers.
The court has until the end of June to resolve the case, just before the 2024 elections.
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