Last week, a panel of the United States Court of Appeals for the Fifth Circuit struck down a critical, long-standing gun safety law that protects domestic violence victims and keeps guns out of the hands of domestic abusers. A panel of extremist judges dangerously ruled that the federal law that prohibits people who are subject to domestic violence restraining orders (DVROs) is unconstitutional under the Second Amendment. They’re wrong and here’s what to know about this dangerous ruling and its impact.
What the ruling means:
By declaring this critical federal law to be unconstitutional, the Fifth Circuit panel would allow people in Texas, Louisiana, and Mississippi who are subject to domestic violence restraining orders to access a gun. If the decision is not reversed, domestic violence survivors face the prospect that their abusers can get armed immediately.
The decision is extremely dangerous: if it is not immediately vacated or put on hold and ultimately reversed, it would gut a fundamental public safety law and endanger the lives of domestic violence survivors nationwide. The decision is wrongly decided even under the dangerous approach of the Supreme Court’s Bruen opinion – and we believe it will eventually be overturned if Bruen is correctly applied on appeal.
What’s next in the courts:
The United States Department of Justice (DOJ) will now determine whether to appeal this decision directly to the Supreme Court, or whether they should first ask all 16 judges on the Fifth Circuit to rehear the case together (“en banc review”). We expect the DOJ will seek a rehearing from the full Fifth Circuit which, if granted, would likely vacate the panel decision while the en banc court considers the case – and hold off the dangers of arming abusers during the course of that review. If the DOJ seeks en banc review and the full court reaches the same decision as the three-judge panel, it is near-certain that the Supreme Court will review the case. Either way, this ruling must be overturned and judges across the country should not follow the dangerous precedent set by the Fifth Circuit. In the meantime, lives are at risk.
Who the ruling affects:
First and foremost, this ruling is a death sentence for women and families: gun laws that protect victims of domestic abuse are among the most important public safety laws in the country – ensuring that people who have been proven to be dangerous, abusive, and violent can’t easily access a deadly weapon.
- An average of 70 women in America are shot and killed by an intimate partner in an average month – and the presence of a gun in a domestic violence situation makes it five times as likely that a woman will be killed. See more on the nexus of domestic violence and guns here.
- Strong laws are critical for combating gun violence, and research shows there are substantial drops in intimate partner homicide rates when states prohibit those under a DVRO from having guns and when states encourage or require firearm surrender for these abusers.
- In just the first few weeks of 2023, we witnessed the deadly intersection of guns and domestic violence in communities across the country. In January alone there were multiple horrific incidents of domestic violence shootings, including in Utah where a man shot and killed his wife, mother-in-law, and five children two weeks after his wife filed for divorce.
For the time being, the opinion affects only the three states under the purview of the Fifth Circuit – Texas, Louisiana, and Mississippi. The decision has immediate and drastic practical effects in these three states. The ruling could also be seen as an invitation for other extremist judges across the country to say that domestic violence firearms laws are unconstitutional.
- If the ruling is not vacated or reversed, we expect protections will fall away quickly in Texas, Louisiana, and Mississippi – and DVRO subjects will no longer be informed they are prohibited under federal law and no longer subject to prosecution for having firearms. In that circumstance, those individuals may even become able to buy guns legally after passing a background check at a gun dealer.
How the Bruen decision impacted this ruling:
This Fifth Circuit panel is made up of three extreme judges, two of whom were appointed by former President Donald Trump. This decision is extreme and wrong even under the dangerous logic of the Supreme Court’s 2022 decision in New York State Rifle & Pistol Ass’n v. Bruen, and it should be overturned: The Fifth Circuit opinion misapplied Bruen, using a very flawed analysis. The panel dismissed out of hand the fact that Bruen and Heller had emphasized repeatedly that the Second Amendment protects “law-abiding, responsible people.” Contrary to Bruen’s clear instructions, the panel essentially ruled that the law is unconstitutional because the government did not identify an identical precedent from early American history. The Fifth Circuit court also misunderstood Bruen’s direction that courts evaluate whether a gun safety law reflects an “unprecedented societal concern”—which the DVRO prohibition so clearly does. The panel decision should ultimately be reversed.
Bruen opened the door to dangerous opinions like this one: In Bruen, the Supreme Court not only struck down an important part of New York’s concealed carry law (and disapproved similar laws in five other states), but it also significantly changed the analysis that all courts must use to evaluate Second Amendment challenges going forward—putting into question hundreds of existing lower court decisions that have upheld core gun laws and inviting gun lobby efforts to attack our public safety protections in court. But even if our public safety protections are all ultimately upheld (as we believe they should be), there may be major hazards in the meantime – including for domestic violence survivors – while challenges like the one in Rahimi work their way through the courts.
Bruen may have opened the door to extreme decisions but it did not close the door to gun safety. While Bruen did significantly change the analysis that courts must use to evaluate Second Amendment challenges, the gun safety laws Everytown advocates for remain constitutional even under that analysis and the decision does not impact our state or federal legislative strategy. It’s more important than ever to keep fighting for our priorities in states across the country – and to help defend those laws in court.
To speak with a Second Amendment lawyer with Everytown law, please reach out to [email protected].