United States v. Rahimi

Mr. Rahimi was convicted of possessing a gun while subject to a domestic violence protective order, issued after he violently assaulted his domestic partner in a parking lot and shot a gun when he noticed that others had witnessed his abuse. Mr. Rahimi challenged the law as a violation of the Second Amendment right to bear arms.

The U.S. Court of Appeals for the Fifth Circuit invalidated the law on its face, holding that individuals subject to domestic violence protective orders have a constitutional right to possess guns. It found no sufficiently identical law extant as of the 1700s or 1800s, even though at that time domestic violence was not considered a serious problem, and women were legally subjugated to men. It refused to treat as sufficient historic analogues other laws that denied arms to individuals found to pose a danger to others. The Fifth Circuit’s rationale denies governments any ability to prohibit gun possession by persons subject to restraining orders — and would presumably invalidate even pre-acquisition background checks, which have stopped more than 77,000 purchases of weapons by individuals subject to domestic violence orders in the 25 years that the law has been in place.

The ACLU argues that the Fifth Circuit’s analysis is a misapplication of the Supreme Court’s decision in New York State Rifle & Pistol Association, Inc. v. Bruen, by requiring, in essence, a historical twin law in order to uphold a law today. That approach risks freezing government’s ability to protect people from newly recognized threats and tethers the authority to regulate gun possession to periods when governments disregarded many forms of violence directed against women, Black people, Indigenous people, and others.

The ACLU’s amicus brief urges the Supreme Court to reject the Fifth Circuit’s reasoning, but to do so on significantly narrower grounds than those advanced by the United States, which maintains that Second Amendment rights are limited to “law-abiding, responsible citizens.” The ACLU also argues that imposing time-limited firearms restrictions based on civil restraining orders is a critical tool for protecting those who have experienced domestic violence and face a threat of further violence and affords them the opportunity to do so without seeking criminal prosecution.

The ACLU’s amicus brief also identifies important policy and constitutional concerns with gun laws more generally, and particularly with overbroad gun laws. Criminal enforcement of overbroad gun laws fuels mass incarceration and the disproportionate imprisonment of people of color. And gun laws can raise due process, equal protection, and excessive punishment concerns — none of which is addressed by this case. The brief notes that other federal prohibitions on gun possession, including those that apply to all those convicted of a felony, raise distinct constitutional questions under the Second Amendment.