Domestic Violence Protections in the Crosshairs: U.S. v. Rahimi and the Constitutionality of 18 U.S.C. § 922(g)(8)

By Chase T. Boss, Staff Writer

Photo courtesy of pexels.com

Last year, the Supreme Court held in Bruen[1] that New York’s concealed-carry “proper cause” requirement violated the Second Amendment, opening the door to a new era of gun control challenges.[2] Now, the constitutionality of a federal gun law is scheduled for oral argument this November.[3] 18 U.S.C. § 922(g)(8) was enacted in 1994, criminalizing gun ownership for anyone subject to a domestic violence restraining order (“DVRO”).[4]

In early 2020, Zackey Rahimi had one such order placed against him.[5] Following a string of violent crimes, Rahimi was caught and found to have possessed a firearm after the issuance of the DVRO. As a result, Rahimi was charged and convicted under 18 U.S.C. § 922(g)(8).[6]

After being sentenced to 73 months in prison by a U.S. district court in Texas, he appealed, claiming that the crime he was charged with violated his rights under the Second Amendment and that he was not adequately provided with due process to challenge the state DVRO.[7] Gun rights advocates agreed with Rahimi that the state’s civil decision wrongfully took away constitutional rights.[8]

Before the Court’s holding in Bruen, challenges to state gun control laws prompted a balancing test of public safety benefits and the level of gun rights restrictions; now, a historical test to the Second Amendment is the standard.[9] Following the Court’s decision in Bruen, a West Virginia federal judge struck down a federal law that prohibited the possession of a firearm with a filed-off serial number[10], and a New York federal judge struck down a ban on gun possession within houses of worship.[11] U.S. v. Rahimi is just one more case to be subjected to the originalist approach, and the 5^th Circuit determined that 18 U.S.C. § 922(g)(8) failed the new Bruen assessment, even if the statute is a “laudable” policy goal.[12]

The 5^th Circuit decision agreed with Rahimi that 18 U.S.C. § 922(g)(8) may be unconstitutional on its face,[13] solely based on the lack of historical analog to firearm restrictions on domestic abusers.[14] The court relied on state and colonial law, determining that there was no sufficiently identical law as of the 1700s or 1800s.[15] Essentially, because the framers of the Constitution did not enact a law to prevent domestic abusers from owning a firearm, a restriction to that effect should not be construed from the Constitution.

It was still clear to the court that Rahimi was not a model citizen,[16] and that he would have been excluded from Second Amendment rights solely because of the felony charges he was later convicted of.[17] The caveat with this finding was that he was not a convicted felon at the time of the DVRO; Rahimi argued that what was considered a finding based on a mere preponderance of evidence should not take away a right that would otherwise be stripped by a felony conviction which obviously requires a higher evidentiary standard.[18]

While it is expected that SCOTUS will reverse the controversial circuit decision, as a handful of conservative justices have signaled that the appellate decision took the Second Amendment’s reading too far,[19] a slew of amicus briefs have been filed to the Court.[20] Twenty-three states have urged SCOTUS to hear the dispute, with the Biden administration also advocating for reversing the circuit’s decision.[21] The Justice Department, under Attorney General Garland, spoke out against the circuit opinion, positing that 18 U.S.C. § 922(g)(8) has a strong foundation in text, history, and tradition.[22]

Whether or not one has strong feelings for or against Second Amendment Rights, U.S. v. Rahimi and the future of 18 U.S.C. § 922(g)(8) will directly impact the safety and security of domestic violence survivors.[23] While possessing a firearm may not automatically make an alleged abuser a dangerous individual, it is suggested that the mere presence of a firearm in a home during a domestic violence incident increases the risk of death fivefold.[24]

Not only this, but some gun control advocates extend their concern directly to the occurrence of mass shootings in the United States. From 2014 to 2019, over two-thirds of all mass shootings in the United States occurred as a result or during, a domestic violence incident.[25] The act is not just about protecting victims of domestic violence by limiting one avenue for abusers to access firearms – it might as well be an issue of national security.[26]

[1] New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022).

[2] https://www.scotusblog.com/2023/04/government-seeks-review-of-federal-gun-regulations-on-domestic-abusers-bump-stocks/.

[3] https://www.scotusblog.com/case-files/cases/united-states-v-rahimi/.

[4] https://www.scotusblog.com/2023/04/government-seeks-review-of-federal-gun-regulations-on-domestic-abusers-bump-stocks/.

[5] https://www.americanprogress.org/article/how-supreme-court-cases-on-gun-violence-and-abortion-will-affect-women/.

[6] Id.

[7] https://www.scotusblog.com/2023/04/government-seeks-review-of-federal-gun-regulations-on-domestic-abusers-bump-stocks/.

[8] https://www.ammoland.com/2023/08/biden-administration-brief-on-rahimi-case-about-due-process-and-restraining-orders/#axzz8FEEE2afxswd76. See also, https://www.cato.org/legal-briefs/united-states-v-zackey-rahimi.

[9] https://reason.com/2023/03/29/the-ruling-upholding-the-gun-rights-of-people-subject-to-restraining-orders-is-not-as-crazy-as-you-might-think/.

[10] United States v. Price, 635 F.Supp.3d 455 (S.D.W. Va. 2022).

[11] Spencer v. Nigrelli, 22-CV-6486 (JLS), 2022 WL 17985966 (W.D.N.Y. Dec. 29, 2022).

[12] United States v. Rahimi, 61 F.4th 443 (5th Cir. 2023), cert. granted, 143 S.Ct. 2688 (2023).