By Alejandro Serrano, The Texas Tribune

Nov. 7, 2023

U.S. Supreme Court hears Texas case about whether domestic violence suspects can be banned from having guns” was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

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The U.S. Supreme Court heard arguments Tuesday for a case involving a Texas man challenging the government’s ability to disarm people who are subject to a domestic violence restraining order.

Questions and comments from some of the justices suggested that at least some of them might be willing to uphold the federal prohibition, but the matter won’t be determined until the high court issues its final ruling, which could take months.

The case’s stakes are deadly, according to victims’ advocates who point to estimates that the risk of homicide in domestic violence incidents increases by as much as 500% with the presence of a gun.

For gun rights groups and Second Amendment scholars, the case presents the high court with its first opportunity to expand on a decision it issued last year that prescribed a new standard for modern gun control laws to be “consistent with the Second Amendment’s text and historical understanding.” The ruling has led to disagreeing decisions and chaos among lower courts.

In essence, the framework established by the 2022 case calls for any gun law to have an analog in American history to be considered constitutional.

Part of Tuesday’s oral arguments, which lasted about an hour and a half, centered around the framework and how it is applied. The government’s lawyer, U.S. Solicitor General Elizabeth Prelogar, argued that the test requires the identification of a principle embodied in both a well-established historical law and a modern law, not a direct legislative twin. The law in question in this case — which prohibits people under a protective order from having guns — is in accordance with the nation’s history of disarming dangerous people, Prelogar argued.

The case before the Supreme Court concerns a man named Zackey Rahimi, who is arguing that his constitutional right to bear arms was violated.

A state court granted Rahimi’s then-girlfriend a restraining order in February 2020 after Rahimi dragged her into his car following an argument in Arlington. He pushed her in, causing her to hit her head on the dashboard, and then shot at a bystander who had witnessed the assault, court records show.

The court’s order prohibited Rahimi from threatening, harassing or approaching his girlfriend or her family. It also suspended Rahimi’s handgun license and prohibited him from possessing a firearm. The state order warned Rahimi that possessing a gun while the two-year order was in effect may be a federal felony.

But Rahimi kept his guns. He used one gun to threaten another woman and, months later in the winter of 2020, he was involved in five shootings in the span of several weeks. He once shot at a constable’s car; on another time, he fired a weapon into the air outside a Whataburger after his friend’s credit card was declined.

Authorities executing a search warrant in connection to the shooting spree found a .45-caliber pistol, a .308-caliber rifle, pistol and rifle magazines, ammunition, approximately $20,000 in cash — and a copy of the restraining order issued after the incident with his girlfriend. A federal grand jury indicted Rahimi for violating a federal prohibition on having guns while under a restraining order.

Rahimi, who court documents describe as a drug dealer who mostly sold marijuana, pleaded guilty to the federal charge and was sentenced to six years in prison. Rahimi reportedly said this summer in a handwritten letter from jail, where he is awaiting the outcome of his state case, that he wants “to stay away from all firearms and weapons.”

An appeals court initially affirmed the sentence but withdrew its opinion and reheard the case in the wake of the Supreme Court’s landmark 2022 ruling in New York State Rifle & Pistol Association v. Bruen that established the new test for gun laws.

Following the rehearing, a panel of judges from the 5th U.S. Circuit Court of Appeals in February ruled that the Second Amendment allows people under protective orders for committing domestic violence to keep their guns.

“Rahimi, while hardly a model citizen, is nonetheless part of the political community entitled to the Second Amendment’s guarantees, all other things equal,” Judge Cory T. Wilson, who was appointed by former President Donald Trump, wrote in the 5th circuit’s ruling.

Rahimi’s federal public defender said he did not have any comment for this story. On Tuesday, Rahimi’s lawyer argued to Supreme Court justices that there is no history of firearms bans and that the government had failed to identify any analogous laws.

“I’m saying there’s no ban, there’s no history of bans for people who were part of the national community,” James Matthew Wright said at one point. “They don’t exist.”

Justice Elena Kagan, nominated to the high court by former President Barack Obama, interjected.

“That does suggest, I mean, that you’re looking for a ban on domestic violence,” Kagan said. “Two hundred some years ago, the problem of domestic violence was conceived very differently. People had a different understanding of the harm. People had a different understanding of the right of government to try to prevent the harm. People had different understandings with respect to pretty much every aspect of the problem. So if you’re looking for a ban on domestic violence, it’s not going to be there.”

For domestic violence victims’ advocates and lawyers, the facts of the case — from the initial protective order and the shooting spree to Rahimi’s guilty plea and the appellate court’s withdrawal of an opinion — madeTuesday’s hearing all the more remarkable and outrageous.

“You would think anybody looking at these facts would think public safety is at risk,” said Jeana Lungwitz, the director of the Domestic Violence Clinic at the University of Texas School of Law. “It just seems public safety and common sense would say this is somebody who shouldn’t have a firearm.”

Domestic violence in Texas has continued a steady increase in recent years, according to the Texas Council on Family Violence. Over the past 10 years, the number of women killed by an intimate partner with a firearm in the state has nearly doubled, according to the nonprofit.

TCFV’s review of family violence in 2022 found that the number of family violence offenses reported by the Department of Public Safety increased 10% last year to 254,339 compared to 231,207 in 2021.

Last year Texas also had more “family annihilations” — instances where a person kills more than one direct relative, often spouses and children in murder-suicides — than any other state since 2020, according to the report.

At least 179 women in Texas were killed by an intimate partner or a stalking perpetrator in 2022 — 129 of whom were shot to death with a gun, the report says.

In the eight months that followed the 5th Circuit’s ruling, TCFV has received anecdotal reports from survivors and lawyers saying some state court judges have not upheld the state’s own prohibition on gun possession for those under protection orders, said Krista Del Gallo, TCFV’s legislative director.

Just as concerning, Del Gallo said, was a lawmaker’s attempt to scrap the state law after the appellate court’s ruling.

House Bill 4336, filed in March during this year’s regular legislative session by Rep. Richard Hayes, R-Denton, would have struck out the language that makes it illegal for a person subject to a protective order to possess a firearm or ammunition. The bill was assigned to a committee but did not advance further, according to legislative records.

“We know that any type of message to abusers that says ‘we’re going to prioritize your right to bear arms over the safety of a victim’ emboldens abusers,” Del Gallo said. “If we’re just going to go back to the time in which the Second Amendment was written, that’s terrifying if that’s the frame. It’s also — I’ll use this term — offensive. It’s offensive to women and children, who were the property of their husbands at the time; it’s offensive to Black people, [who] were not fully citizens at the time. There’s just so much there.”

Gun rights advocates contest that people abiding by civil protective orders have not been convicted of a crime and as such should not be stripped of their constitutional right to have guns.

“Rahimi should not only lose his Second Amendment liberties, but he should also lose all of his liberties — if the allegations against him are ultimately proven true with sufficient due process,” the National Rifle Association wrote in an amicus brief supporting the 5th Circuit’s ruling. “But constitutional safeguards cannot be set aside to obtain those ends.”

For victims of domestic violence, there may be no more dangerous time than when they seek a protective order — all the more deadly when their abuser has a gun, research and analysis of deaths has shown.

Responding to domestic disturbances and enforcing protective orders are also believed to be among the most dangerous calls to which police respond. Roughly 9% of 503 law enforcement officers killed across the country between 2011 and 2020 were responding to domestic disturbance or domestic violence calls.

In the petition for the Supreme Court to take up the case, government lawyer Prelogar cited a 2014 ruling in another domestic violence case that quoted a remark attributed to former Minnesota Sen. Paul Wellstone during a 1996 debate about a similar federal statute. Prelogar began her opening argument during Tuesday’s hearing with the same quote: “All too often, the only difference between a battered woman and a dead woman is the presence of a gun.”

This article originally appeared in The Texas Tribune at https://www.texastribune.org/2023/11/07/supreme-court-guns-domestic-violence-rahimi/.

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