Domestic & Relationship Violence - the nation's internal war zone

Supreme Court Justices Weigh Constitutionality Of Disarming Domestic Abusers

Photo illustration by WLA
The Crime Report
Written by The Crime Report

by Kay Bontempo for The Crime Report

The U.S. Supreme Court appears poised to uphold a federal law which bans domestic abusers from owning guns In one of the most high-profile cases of this year.

Last month on November 7, Supreme Court justices heard oral arguments in United States v. Rahimi.

The Biden administration, represented by Solicitor General Elizabeth Prelogar, is petitioning to appeal a decision by the conservative Fifth Circuit court, which found that the federal law’s restrictions on gun ownership violated the Second Amendment.

The respondent, Zachey Rahimi, was represented by federal public defender Matthew Wright.

At the core of Rahimi lie a few fundamental questions, including: Should the US be able to prohibit people who have been proven dangerous from owning guns? Further, what should qualify someone as “dangerous” in the eyes of the law?

Many Americans would classify Texas resident Zackey Rahimi, the man at the center of the case, as a dangerous person. In fact, Chief Justice Roberts, addressing Rahimi’s lawyer, asked point-blank during the proceedings, “You don’t have any doubt that your client’s a dangerous person, do you?”

Rahimi was involved in five shootings between December 2020 and January 2021. One involved a pistol shot in the air at a restaurant after his friend’s credit card was declined. During another incident, after colliding with another vehicle on the road, Rahimi exited his car and shot at the other driver repeatedly before fleeing.

Rahimi was also under a civil protective order for alleged assault against his ex-girlfriend. Current federal law 18 U.S.C. §922 (g) (8) prohibits people under domestic violence restraining orders from owning firearms.

Rahimi ran afoul of this law and was consequently convicted of possessing a gun while subject to a domestic violence restraining order.

The 2022 SCOTUS case New York State Rifle & Pistol Association, Inc. v. Bruen is directly relevant to Rahimi, and was mentioned in the first few minutes of oral arguments.

In Bruen, the Court ruled in a 6-3 decision that New York State’s Sullivan Act, passed in 1911—which required anyone applying for a pistol concealed carry license to show “proper cause”—was unconstitutional. The outcome was that, while states may require seekers of concealed carry permits to meet a list of objective criteria (e.g. background checks), they may not choose whether or not to issue permits based on “arbitrary” evaluations of need.

The “Bruen test” created by this decision showed a shift on the court towards originalism, requiring laws regulating firearms to be evaluated based on their relationship to the “history and tradition” of this nation’s firearm laws.

When assessing Rahimi through the lens of Bruen, it is easy to imagine that laws like 18 USC 922 prohibition on domestic abusers owning firearms could be held unconstitutional if forced to pass a test when compared to the laws of the early American republic.

However, Eric Tirschwell, Executive Director of Everytown Law, argues that the federal law in question is entirely consistent with both the Second Amendment and our nation’s history of firearm regulation and therefore passes the Bruen test.

“For centuries, there have been laws aimed at disarming dangerous and irresponsible people, and that history and tradition fully support disarming domestic abusers under the Bruen framework,” Tirschwell said. “The Fifth Circuit’s decision in Rahimi is not a correct application of the Bruen decision’s new history-focused Second Amendment test but instead, it is an extreme interpretation and dangerous distortion of Bruen.”

During Prelogar’s oral argument, she contended that the government should be able to prohibit possession of firearms by individuals who are not “law-abiding,” which the arguments defined as being convicted of a felony, and also by those who are “dangerous” or “not responsible.”

When it comes to the precedent set in Bruen, General Prelogar argued that restriction of firearms from dangerous persons does fit into the history and tradition of this nation’s laws.

She stated that “the Fifth Circuit profoundly erred in reading this Court’s decision in Bruen to prohibit that widespread common-sense response to the deadly threat of armed domestic violence.” According to Prelogar, a correct reading of Bruen still allows for Congress to disarm those who are not “law-abiding, responsible citizens.”

Prelogar also cited statistics about the relationship between gun ownership and domestic abusers, such as the fact that a woman who lives in a house with a domestic abuser is five times more likely to be murdered if he has access to a gun.

The justices discussed at length the definitions of “dangerous,” “law-abiding” and “responsible” in the context of potential laws disarming gun owners. Chief Justice Roberts questioned Prelogar as to whether someone going over the speed limit could be classified as not law-abiding.

Her response was that misdemeanors of that category would not qualify, but that “history and tradition there support the conclusion that you can disarm those who have committed serious crimes.”

Prelogar conceded that Zackey Rahimi did not have “the kind of criminal record that would justify disarmament on [the basis of being non-law-abiding],” and stated that her arguments would therefore focus on those who are “not responsible.” Responsibility, of course, is a complex concept.

The conservative justices, who currently hold a majority, at times indicated during arguments that they felt “responsible” to be too broad a term.

Chief Justice Roberts pointed out that someone who fails to take out their recycling or shouts at a sporting event might be considered irresponsible, pointing out significant room for disagreement over what type of behavior is sufficiently irresponsible to justify disarmament.

Overall, however, by the conclusion of oral arguments the justices seemed likely to roll back the Fifth Circuit decision.

If they do, it will be viewed as a win by defenders of potential victims of domestic violence, and a loss by gun-rights advocates and supporters of the Fifth Circuit ruling.

“We don’t expect the Supreme Court to affirm the Fifth Circuit’s decision,” Tirschwell said. “But if the Supreme Court did affirm the Fifth Circuit’s decision and rule in favor of domestic abusers, it would gut a fundamental public safety law, endangering the lives of domestic violence survivors across the country by allowing abusers to purchase weapons, even in many cases after they’ve been shown to have a history of violent behavior.”

Tirshwell pointed to research showing that average of 70 women are shot and killed by an intimate partner each year and over 4.5 million women have reporter being threatened with a gun by their partner.

“The impact this decision could have across the country is deadly,” Tirschwell said.


This story by Kay Bontempo first appeared on The Crime Report and is reprinted with their kind permission.


WLA’s Post script:

We found it interesting to note that California Governor Gavin Newsom has filed an amicus brief on the case, which you can find here.

The brief, which opposes plaintiff Zachey Rahimi, and supports the Biden administration, opens as follows:

Gavin Newsom is the Governor of California. As the executive of the nation’s largest State, the Governor has an obligation to ensure the safety of California’s residents from the horrors of gun violence— including gun violence by intimate partners and family members. In pursuing that goal, the Governor has consistently advocated for commonsense gun regulations that save lives without infringing on individuals’ constitutional rights. Those regulations include requirements for background checks and mental-health reporting, prohibitions on marketing firearms-related products to minors, restrictions on so-called “ghost guns” designed to stymie law-enforcement investigations of gun crimes, and limitations on the assault weapons responsible for mass-casualty attacks on the public.

“The Governor has demonstrated a particular commitment to protecting survivors of domestic violence by signing legislation and launching a campaign to bolster the efficacy of gun-violence restraining orders— “red flag laws”—that allow law-enforcement officers, family, coworkers, or friends to petition a court to temporarily remove weapons from individuals the court finds are dangerous to themselves or others.”

It goes on from here.  But you get the picture.

And while we’re on the topic, the ACLU has also filed an interesting amicus brief, the summary of which you can find here.


  • Domestic violence does happen to women and men that is the reality of this situation!! As the way the law is written no matter of the gender they can go into any court house in America without any evidence in there case and ruin their significant other!! The Supreme Court needs to make it where there substantial evidence in the case before women or men file domestic violence claims to show this evidence example
    Hospital records and records of the police officers being there etc!! No matter what evidence needs to be brought forward to move forward with the case!! No evidence no case!! Seen this happen in my own state and the country courts and no judge here doesn’t care if you have evidence it’s not allowed in there court room as evidence!! That isn’t right as well!!

  • Based on over 33 years experience in law enforcement I think this could have been resolved much differently. First many of the “Abusers” have in fact committed a felony; could have been charged convicted and disbarred of their 2nd Amendment Rights. One recurring issue has been that the Victim refuses to testify against the Suspect meaning Charges are Dismissed. Second again many of the individual Suspects of Abuse additionally have psychological issues which could result in their disbarment (historically disbarment was predicated on: Suspect being diagnosed with one of a few possible psychiatric disorders AND being a Danger to himself/herself, a specific individual or the public at large).
    The biggest majority of Suspects could be disbarred by Felony (including diversion programs) or by psychiatric evaluation and diagnosis. The biggest issue with these so called Red Flag Laws (including disbarment while a subject of a Protective Order) is that they could and in many instances do violate the Constitutional Right of the Accused to confront his/her Accuser especially since the Accuser (victim) in a majority of criminal cases refuses to testify against the suspect I don’t see where a victim will testify in Red Flag hearing but refuse to testify in a Criminal Case. I am sure that that number would increase if the testimony provided in a Red Flag Hearing could be used in a criminal trial.
    One last point although many suspects of domestic violence have by law committed a felony many prosecutions will refuse to prosecute the felony; I am aware that many felonies get a plea bargain and conviction to a misdemeanor however in the case of a plea bargain that surrendering of firearms for a set period of time can be part of the agreement

  • I’m posting this as an example of significant others who use their sexuality with cowards from the LASD and her/their contacts with DCFS and courts in Orange County (Forum Shopping) to get their way and ruin a career or try to control it. Your decision making has significantly impacted my CHILDREN who have been in the middle of it all.. This applies to the visitation monitors as well. You/ I know who u are…. This is a recent text from my daughter you pieces of shit!!

    “I don’t know why all of a sudden you think trying now will do anything, you don’t understand me, you can’t acknowledge your wrong, you’re like a stranger to me, you’re like a toxic ex that doesn’t get the hint. You hurt me and my sister, key word HURT. Where’s a sorry mija I should’ve DONE better, where the acknowledgment? I struggle with suicidal episodes constantly till this day, I always want to die. I hate this life I never asked to be here. If I died yesterday, tomm, or next week you’d never know. One day when I finally have the courage to take my own life I hope you know you are and we’re the main reason. I’ll allow you to come to my funeral I want you to see me lying dead in a casket. I want you to feel how I’ve always felt. One day… one day when I’ve had enough will be the day you finally realize my pain”

    May u all have a Happy New year!!!!

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