Fifth Circuit Panels Rules Ban on Gun Possession While Under a Restraining Order Fails the Bruen Test

A three-judge panel of the Fifth Circuit Court of Appeals upheld the conviction of Zachary Rahimi for possession of a firearm while under a domestic violence restraining order. That, however, was before the Bruen decision was handed down by the Supreme Court.

The panel then withdrew its opinion and requested more briefing in light of Bruen. Today, the panel unanimously reversed and vacated Rahimi’s conviction, ruling that the law banning possession of a firearm while under a domestic violence restraining order fails the Bruen test. The panel ruled that, “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.”

You can read the panel’s ruling here.

The question presented in this case is not whether prohibiting the possession of firearms by someone subject to a domestic violence restraining order is a laudable policy goal. The question is whether 18 U.S.C. § 922(g)(8), a specific statute that does so, is constitutional under the Second Amendment of the United States Constitution. In the light of N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022), it is not. …

…we previously concluded that the societal benefits of § 922(g)(8) outweighed its burden on Rahimi’s Second Amendment rights. But Bruen forecloses any such analysis in favor of a historical analogical inquiry into the scope of the allowable burden on the Second Amendment right. Through that lens, we conclude that § 922(g)(8)’s ban on possession of firearms is an “outlier[] that our ancestors would never have accepted.” Id. Therefore, the statute is unconstitutional, and Rahimi’s conviction under that statute must be vacated. 

As Judge James Ho wrote in a concurrence . . .

[T]he Second Amendment has too often been denigrated as “a second-class right.” McDonald v. City of Chicago, 561 U.S. 742, 780 (2010). In response, the Supreme Court has called on judges to be more faithful guardians of the text and original meaning of the Second Amendment. See N.Y. State Rifle & Pistol Association, Inc. v. Bruen, 142 S. Ct. 2111 (2022). Our court today dutifully follows the framework recently set forth in N.Y. State Rifle. It recognizes the absence of relevant historical analogues required to support the Government’s position in this case. I am pleased to concur.

I write separately to point out that our Founders firmly believed in the fundamental role of government in protecting citizens against violence, as well as the individual right to keep and bear arms—and that these two principles are not inconsistent but entirely compatible with one another.

Our Founders understood that those who commit or threaten violence against innocent law-abiding citizens may be arrested, convicted, and incarcerated. They knew that arrest and incarceration naturally entails the loss of a wide range of liberties—including the loss of access to arms. 

In other words, if Rahimi presents a significant danger to society, he can be arrested, charged, convicted, and incarcerated. That shouldn’t have been difficult, given that . . .

Between December 2020 and January 2021, Rahimi was involved in five shootings in and around Arlington, Texas.1 On December 1, after selling narcotics to an individual, he fired multiple shots into that individual’s residence. The following day, Rahimi was involved in a car accident. He exited his vehicle, shot at the other driver, and fled the scene. He returned to the scene in a different vehicle and shot at the other driver’s car. On December 22, Rahimi shot at a constable’s vehicle. On January 7, Rahimi fired multiple shots in the air after his friend’s credit card was declined at a Whataburger restaurant.

As you might imagine, some aren’t pleased by the Fifth Circuit panel’s ruling.

But if screeching harridans like Shannon Watts are upset by this outcome, they should direct their displeasure at the prosecutors and the fact that Rahimi wasn’t tried, convicted, and jailed on a slew of potential felony charges during which a firearm was used illegally.

[h/t LKB]