Does A Law Prohibit A Domestic Abuser From Keeping A Gun Violate The Second Amendment?

concerned woman who is a victim of domestic abuse looking out window of home

Currently, the law in Maryland permits a court to order a person who is subject to a protective order to surrender to law enforcement any firearms in his or her possession, and to refrain from possession of any firearm for the duration of the protective order.  Violation of a protective order may result in criminal prosecution or imprisonment.  On June 30, 2023, the Supreme Court of America decided to hear a case next term that will address the question of whether a law that prohibits a domestic abuser from keeping a gun violates the Second Amendment.

The question arises from a case out of the Fifth Circuit called United States v. Rahimi.  The Fifth Circuit includes Texas, Louisiana, and Mississippi.

In the Rahimi case, the Defendant, Zackey Rahimi, was involved in five shootings in Arlington, Texas between December 2020 and January 2021.  On December 1, 2020, Rahimi fired shots into an individual’s residence after selling drugs to the individual.  On December 2, Rahimi shot the driver of a car after being involved in a car accident with the driver.  On December 22, he shot at a law enforcement officer’s vehicle.  On January 7 2021, he fired multiple shots in a Whataburger restaurant after his friend’s credit card was declined.  While executing a search warrant, officers found a rifle and pistol in Rahimi’s home.  Rahimi admitted that he possessed the weapons.  He also admitted that was subject to a protective order entered in February 2020 after assaulting his girlfriend.  The protective order prohibited Rahimi from going to his ex-girlfriend’s residence or from annoying, abusing, or harassing her.  The protective order also prohibited Rahimi from possessing a firearm.

A federal grand jury indicted Rahimi for possessing a firearm while under a domestic violence order in violation of 18 U.S.C. § 922(g)(8).  Section 922(g)(8) states:

It shall be unlawful for any person who is subject to a court order that[:] (A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate; (B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and (C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury . . . to . . . possess in or affecting commerce, any firearm or ammunition . . . .

Following the standards set by the Supreme Court in New York State Rifle & Pistol Association, Inc. v. Bruen, the Fifth Circuit decided to reconsider its prior Second Amendment precedents after Bruen and applied a two-step test.  First, the Court concluded that Rahimi’s conduct (keeping and possessing a firearm) was covered by the Second Amendment’s right to keep and bear arms.  The Court rejected the government’s argument that Rahimi was not covered by the Second Amendment, because he was not a law abiding citizen.  The Court stated that because Rahimi had not yet been convicted for the conduct that occurred in December 2020 and January 2021, Rahimi was not a convicted felon and was still able to keep and bear arms under the Second Amendment. The Court also stated that the protective order was not sufficient to remove Rahimi from the right protected under the Second Amendment.  The Court stated:

From the record before us, Rahimi did not fall into any such group at the time he was charged with violating § 922(g)(8), so the “strong presumption” that he remained among “the people” protected by the [Second] amendment holds. When he was charged, Rahimi was subject to an agreed domestic violence restraining order that was entered in a civil proceeding. That alone does not suffice to remove him from the political community within the amendment’s scope. And, while he was suspected of other criminal conduct at the time, Rahimi was not a convicted felon or otherwise subject to another “longstanding prohibition on the possession of firearms” that would have excluded him.

In Bruen, the Supreme Court rejected any balancing of public safety or other public good against Second Amendment rights in Step-2 of its test, and limited analysis to the historical context of the Second Amendment’s adoption.  Under Step-2 of the test, Bruen requires the Court to undertake a historical analysis to determine if a law like or similar to Section 922(g)(8) existed at the time that the Second Amendment was written.  The Fifth Circuit stated the test as follows:  “To carry its burden, the Government must point to ‘historical precedent from before, during, and even after the founding [that] evinces a comparable tradition of regulation.’”  The Fifth Circuit concluded that the government failed to identify any similar historical precedents, like Section 922(g)(8), that prohibited Rahimi from possessing a firearm.  The Court stated:

The Government fails to demonstrate that § 922(g)(8)’s restriction of the Second Amendment right fits within our Nation’s historical tradition of firearm regulation. The Government’s proffered analogues falter under one or both of the metrics the Supreme Court articulated in Bruen as the baseline for measuring “relevantly similar” analogues: “how and why the regulations burden a law-abiding citizen’s right to armed self-defense.” As a result, § 922(g)(8) falls outside the class of firearm regulations countenanced by the Second Amendment.

Given its analysis, the Fifth Circuit concluded that Section 922(g)(8) was unconstitutional, and it vacated Rahimi’s conviction under that law.

In Maryland, Section 4-506 (f) of the Family Law Article of the Annotated Code of Maryland permits a court to order a respondent to surrender to law enforcement any firearms in the respondent’s possession, and to refrain from possession of any firearm for the duration of the protective order.  Violation of a protective order may result in criminal prosecution or imprisonment.  Whether or not Maryland laws pertaining to the surrender of firearms and prosecution for violating such laws violate the Second Amendment will have to await the United States Supreme Court’s decision next term.

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