In domestic violence cases, battered women are five times more likely to be murdered if there’s a gun in the house. That’s why people under domestic violence restraining orders, by federal law, can’t have guns.
Last week the Supreme Court heard oral arguments challenging that federal law.
In March 2023, the conservative 5th Circuit Court of Appeals ruled in Rahimi that a violent and abusive Texas man under a restraining order was entitled, under the 2nd Amendment, to keep his guns.
Coloring inside the lines of the 2022 pro-gun Bruen decision, the 5th Circuit held that the right to keep and bear arms excludes only convicted felons, the mentally ill, and “other groups that have historically been stripped of their Second Amendment rights.”
Following Bruen, the court ruled that the restraining order gun prohibition lacked “historical analogue”: men who brutalized their wives in the 1790s and 1860s did not categorically lose their muskets, so men who beat their wives today get to keep their guns.
The outcome reflected the absurdity and untenability of Bruen, in which Clarence Thomas crafted a bold new method for striking gun regulations. Bruen now requires the government, and anyone else defending gun restrictions, to find similar “historical analogues” that existed when the 2nd and 14th amendments were passed. If no sufficiently similar analogy from those two narrow chapters in U.S. history is found, the gun regulation fails.
During oral argument on the 5th Circuit appeal, no one seriously doubted that Mr. Rahimi was violent and dangerous. The record before the Court established that Rahimi, a drug dealer prone to violent outbursts, earned his restraining order by knocking his girlfriend over in a parking lot and dragging her back to his car. When he saw someone watching, he fired his gun, and the girlfriend ran. He later called and threatened to shoot her if she told anyone.
After she obtained a restraining order barring Rahimi from further contact and suspending his gun license, Rahimi went on a shooting spree. He fired weapons during two separate road-rage incidents, discharged his AR-15 into a man’s home for offending him on social media, threatened another woman with a gun, and shot his gun inside a restaurant when his friend’s credit card was declined.
During argument, Justices Clarence Thomas and Samuel Alito, waxing nostalgic for the good ole days when women were legal chattel, focused on Rahimi’s rights instead of hers.
Rahimi’s defense counsel stressed that the protective order was entered after a “one-sided” civil proceeding, leading Thomas to assail the “thin record” of a protective order from a civil proceeding rather than criminal, using talking points straight out of the NRA’s amicus brief. The NRA’s brief questioned the validity of relying on a civil order that found Rahimi dangerous, because civil orders are based on a lower burden of proof than criminal convictions. Thomas said, “If this were a criminal proceeding … someone would be convicted of a crime, a felony assault, or something. But here you have … a civil court making the determination.”
Thomas was unconcerned that it takes months and sometimes years to secure a criminal conviction for battery or attempted murder, a wait that could prove deadly.
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Alito, another gun enthusiast who resurrected 12th century law in Dobbs to rule that women’s bodies are a state-controlled commodity, was also more worried about the due process rights of abusers than their at-risk victims.
Alito called domestic violence hearings “he said, she said” affairs, then queried how violent abusers might protect themselves if tables were turned and someone attacked them. “If the (legally restrained) person thinks that he or she is in danger and wants to have a firearm, is that person’s only recourse to possess the firearm and take their chances if they get prosecuted?” More concerned about hypothetical dangers a domestic batterer might face with no gun to protect themselves, Alito demonstrated near contempt for the very real battered woman in the case before him.
Surreal questioning from NRA champions Thomas and Alito seemed to jar other conservatives on the bench. Justice Amy Coney Barrett recalled the extensive evidence Rahimi’s girlfriend submitted to get her order of protection in the first place. Chief Justice John Roberts clarified that Rahimi was in fact dangerous, while Justice Brett Kavanaugh credited the law with stopping gun sales based on domestic violence protective orders.
Adding them to liberal Justices Elena Kagan and Sonia Sotomayor, who dissented in Bruen, and Justice Ketanji Brown Jackson, who rebuked the Bruen holding, the challenged gun restriction appears likely to survive, 7 to 2.
SCOTUS won’t be able to find required “historical analogues” from the 18th or 19th centuries, given that domestic violence laws and restraining orders didn’t exist until the 1960-70s, so the Court will have to delimit its holding in Bruen.
However they decide to fix their colossal mistake, it will be most gratifying for victims to hear the Court’s admission of error.
Sabrina Haake is a Chicago attorney and Gary resident. She writes the Substack newsletter The Haake Take.