On February 2, 2023, a three-judge panel of the federal Fifth Circuit Court of Appeals ruled that the federal prohibition on gun possession for people subject to domestic violence restraining orders (DVROs) is unconstitutional under the Second Amendment.* For the time being, the opinion affects only the three states under the purview of the Fifth Circuit—Texas, Louisiana, and Mississippi. 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. However, the decision is wrongly decided even under the reckless logic of the Supreme Court’s Bruen opinion—and we believe it will eventually be overturned if Bruen is correctly applied on appeal.
What happens next in the courts?
The United States Department of Justice (DOJ) is responsible for prosecuting Rahimi, and will now determine whether to appeal this decision directly to the Supreme Court, or else whether they should first ask the full 16-judge panel on the Fifth Circuit to rehear the case together (“en banc review”). We expect DOJ will also seek rehearing from the full Fifth Circuit (which, if granted, would likely vacate the panel decision) to hold off the dangers of armed abusers during the course of further review. If 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.
This decision is extremely dangerous for women in America.
Gun laws that protect victims of domestic abuse are among the most important public safety laws in the country, and have always been a central focus for Everytown and the broader GVP movement. 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).
- The decision has immediate and drastic practical effects in the three Fifth Circuit states: We are hopeful that the panel decision will be vacated while further review proceeds. If not, we are deeply concerned that protections may fall away quickly in TX, LA, and MS—with DVRO subjects no longer being informed they are prohibited under federal law and no longer subject to prosecution for having firearms. Moreover, legal challenges are very likely for state-level laws prohibiting gun possession and requiring firearm surrender (see more on state-level DVRO protections here and here). In the worst case scenario, domestic abusers may even become able to pass a background check at a gun dealer. Note that the 47 states outside the Fifth Circuit are not directly impacted by the decision.
The Rahimi 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 panel opinion misapplied Bruen; if Bruen is correctly applied on appeal, we believe the opinion will eventually be overturned and the challenge will ultimately fail. 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 a direct historical twin to the DVRO prohibitor—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. Because of Bruen, everyone in America is now in danger of many more situations like the one we face after this hazardous Fifth Circuit decision. Again, we do expect that, with a correct application of Bruen on further review, the Fifth Circuit will be reversed and our domestic abuse laws will be safe. But unless and until the panel decision is vacated and ultimately reversed, survivors of domestic abuse in three states will face a life-or-death crisis where their abusers may have ready access to firearms.
The decision does not impact our state or federal legislative strategy or our expectations about which core gun laws might ultimately be impacted by Bruen.
The Rahimi decision does not impact Everytown’s ongoing strategy to pass and defend the strongest gun safety protections nationwide, including domestic violence laws. 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. We continue to believe that our core gun laws will be upheld in time—and that the only correct strategy for the GVP movement is to keep up our fight to reduce gun violence.
*The defendant, Zackey Rahimi, was convicted of possessing firearms while subject to a DVRO in violation of 18 United States Code 922(g)(8)). That provision of federal law has been in place since 1994.