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  • Charlize Cruger

Should domestic abusers retain a right to bear arms?

Updated: Jun 8

In December 2019, Zacky Rahimi was seen arguing with his girlfriend in a parking lot in Texas. When she tried to leave, Rahimi grabbed her, dragged her to their car, and threw her inside, causing her to hit her head on the dashboard. Rahimi then realized a bystander had seen this transpire and, as a warning, shot a gun in the witness’s direction. He later threatened his girlfriend, saying that if she told anyone about the parking lot incident, he would shoot her. However, his girlfriend didn’t remain quiet but filed for and subsequently received a protective order against him. A protective order, functioning similarly to a restraining order, is a way for victims of domestic violence to seek legal protection from their abusers. In addition to prohibiting Rahimi from being near his girlfriend and her family, the protective order also suspended his handgun license, thus prohibiting him from owning a firearm, as per a federal law that “disarms individuals who have been found to pose a specific threat of domestic violence.” This law was passed with the understanding that, as US Solicitor General Elizabeth B. Prelogar said in her brief, “the only difference between a battered woman and a dead woman is the presence of a gun.” 

This should have been the end of the story. However, about a year later, Zackey Rahimi was found to be involved in five different non-fatal shooting incidents over the course of a month — in one incident, he shot into the air after his friend's credit card was declined at a fast food restaurant. Upon investigating these incidents, Texas police searched Rahimi’s house and found a pistol, a rifle, ammunition, and a copy of the protective order. As a result, he was charged with the federal crime of violating the order. While Rahimi eventually pleaded guilty to the charges, he first attempted to challenge the federal law that disarms domestic abusers, arguing that it violated his Second Amendment rights. When the 5th Circuit Court of Appeals first heard this challenge in 2021, it rejected Rahimi’s argument and upheld the law in question. In 2022, however, the Supreme Court handed down its decision for New York Pistol Association v Bruen (2022), which has since been a source of confusion for many lower-court judges hearing challenges to gun laws. 

At issue in Bruen was a New York law that required people applying for a license to carry a gun outside their home to “demonstrate a special need for self-protection distinguishable from that of the general community.” This, the court ruled, strips citizens of their right to possess a gun — as per the Second Amendment — and does so without due process — which violates the 14th Amendment. Furthermore, in the majority opinion, Associate Justice Clarence Thomas wrote that “the government 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.” In other words, the government must prove a gun law today has a historical parallel, or analog, for it to be considered constitutional by courts. Unfortunately, Thomas failed to provide a clear framework for what counts as a historical analog beyond the clarification that it does not necessarily mean a historical twin

Thus, the precedent set in Bruen creates a big burden on the government to find a historical analog to any challenged gun laws. In particular, the Bruen framework requires judges to take on the role of historians while looking at any gun laws whose constitutionality is challenged to find possible analogs. This task is both beyond the job description and the comfort of most judges. Additionally, since Bruen did not outline what constitutes a historical analog, lower courts have applied the precedent differently and released varied gun law decisions nationwide. However, studies have shown that the Bruen framework still allows for many gun laws to be upheld. The Giffords Law Center has shown that, while the number of challenges to gun laws has more than doubled, courts are still upholding around 88% of gun laws with the recognition “that Bruen does not prevent legislators from passing traditional, common-sense gun violence prevention laws.” What remains in question, then, is what happens when there is no clear historical analog to a challenged gun law and how similar a modern gun law must be to its argued historical analog to justify upholding it. 

This is where Rahimi’s case comes in. Following the release of the Bruen decision, the 5th Circuit Court of Appeals reversed their opinion on Rahimi’s appeal, saying that in light of the new precedent, the federal law Ruhimi challenged was unconstitutional because it had no sufficient historical analog. Now in front of the Supreme Court, Rahimi’s challenge to the law allows the justices to make some clarifications regarding Bruen’s framework: namely, what constitutes a sufficient historical analog. 

In the U.S. brief to the Court, Solicitor General Prelogar argued that there is a longstanding historic tradition of disarming people considered to be a danger or threat to society that can even be traced back to the Revolutionary War. The law at issue, furthermore, follows this tradition by disarming people who are subject to domestic violence protective orders, which require proof of past and the threat of future violence against a domestic partner. Beyond being an obvious threat to an intimate partner, domestic abusers also pose a threat to bystanders, police officers, and any children in the household. This, the government claims, fits sufficiently within the historical practice of disarming dangerous people to justify upholding the law. Thus, even under Bruen, “the Second Amendment allows Congress to disarm persons who are not law-abiding, responsible citizens.”

Conversely, Rahimi’s lawyer, James Matthew Wright, argued in the respondent brief that the law at issue removes the rights of “rights-retaining citizens,” which holds no pre-20th century parallel. At the center of this argument is the fact that protective orders are civil matters, meaning there are no criminal charges involved that might lead to the denial of certain rights. The law at issue, then, disarms people who are not criminals or have any other recognized denial of their rights and are, thus, full members of the political community. Furthermore, Wright argued that the U.S., in claiming that there is a long history of disarming dangerous people, largely relies on “bigoted laws punishing firearm possession by, e.g., enslaved and free blacks, multiracial people, and Catholics.” Thus, Wright claims that the historical analog identified by the government is insufficient to justify upholding the law. 

Overall, U.S. v Rahimi is not only an important case but an interesting one. The Supreme Court must review precedent that is only a year old to provide clarifications that will have resounding effects on gun regulation in this country. Ruling in favor of Rahimi could easily mean the Court strikes down a law that disarms proven domestic abusers — thus threatening the safety of countless Americans facing violent domestic situations — and makes it harder for gun laws addressing modern problems to be upheld. Alternatively, ruling in favor of the U.S. might broaden the meaning of a sufficient historical analog such that modern gun laws have a better chance of satisfying Bruen’s standard. 


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