After states began enacting differing domestic violence laws in the 20th century, the Violence Against Women Act was passed in 1994. This law nationally recognized domestic violence as an epidemic and provided funding for state resources to combat it. Unbelievably, and as of the date of this writing – that is just less than twenty years ago.
Since that time, states and the federal government have beefed-up laws to protect victims of domestic violence – mostly women – and provide safeguards once there was a finding of domestic abuse and retraining order was entered. In Pennsylvania, they are called Protection From Abuse Orders or PFAs.
One of the key safeguards has been to restrict the possession of firearms by those persons who have restraining orders entered against them. Seems pretty reasonable right? If a person who say, beat their spouse, child, or significant other now has a PFA against them, it stands to reason that after we have concluded that they are a danger to the other person, they should surrender their guns to the police. On February 2, 2023, the United States Court of Appeals for the Fifth Circuit (Texas) disagreed.
In United States of America v. Zackey Rahimi, No. 21-11001 (5th Cir. Jun. 8, 2022), after executing a search warrant of his home, police found that Zackey Rahimi had a rifle and a pistol at his residence after he went on a one-month shooting spree in and around Arlington, Texas. Rahimi, in five separate incidents, shot at cars, shot into the house of a person to whom he just sold drugs, and shot into the air after his credit card was denied at a restaurant. Rahimi even admitted to the police that the guns they found were his. In addition to the state charges that Rahimi faced for shootings, he also previously had a restraining order placed on him for stalking and harassing his ex-girlfriend and their child.
Federal Law 18 U.S.C. §922(g)(8), prevents a person that has a restraining order against them from possessing a firearm. Most state laws, like in Pennsylvania, require a person against whom a PFA order has been placed to surrender their guns to the sheriff or the police. In the above case, which is now presumably the law in Mississippi, Louisiana, Texas, and the Canal Zone, the U.S. Fifth Circuit Court of Appeals determined that 18 U.S.C. §922(g)(8) is an unconstitutional violation of the Second Amendment’s protection of the people to bear arms. Rahimi’s conviction for violation of §922(g)(8) was reversed.
The court said generally that the statute taking guns away from domestic abusers has no real historical basis and cannot properly be analogized to other situations which may be valid to restrict a person’s rights – in this case, a person’s right to “keep and bear arms.” Another reason that the court found the law invalid was that the domestic violence law is grounded in civil law and provides civil remedies as opposed to criminal law which has a higher standard of proof. The court found that just because a person is found legally to have committed domestic violence, this is not enough to restrict his right to “possess” a firearm and relied upon recent Supreme Court cases to justify the decision.
Not surprisingly, domestic violence advocates across the country like the National Network to End Domestic Violence (NNEDV), have vowed to work toward remedying the damage that they think this decision may cause. Shortly after the decision was reported, Attorney General Merrick Garland issued a statement vowing that the Justice Department “will seek further review of the Fifth Circuit’s contrary decision.”
Right now, we are all left to wonder whether this case will even be accepted for review by the United States Supreme Court. In the meantime, the question is not so much the wisdom of the decision or “is it legal,” but whether this decision will be adopted in similar cases in other circuits or, if reviewed by the U.S. Supreme Court, will it be upheld, making it illegal to prevent domestic violence abusers from keeping their guns. Needless to say, a lot is on the line and we may see victims of domestic violence lose one of the most important protections provided by law.