Who Are We Protecting?: US v. Rahimi’s Dangerous Policy Implications for Domestic Violence Victims

When considering preventative crime policies, it seems intuitive that the state or federal government should prevent people convicted of domestic violence from owning guns in order to protect abused spouses, partners, and cohabitants. However, the Fifth Circuit’s recent decision in United States v. Rahimi rules that this statute infringes upon one’s Second Amendment constitutional rights. Reasoning that the US Supreme Court’s 2022 decision in New York Rifle and Pistol Association, Inc v. Bruen overturns their circuit’s precedent, the Fifth Circuit ruled in favor of Rahimi, a felon convicted of domestic violence. However, the court’s application of Bruen and their broad reading of the Second Amendment to reach their conclusion in US v. Rahimi creates dangerous repercussions for domestic violence victims.

From December 2020 to January 2021, Zackey Rahimi fired a gun in five different shootings around Arlington, Texas. Ranging from a car accident to the inside of a Whataburger, a popular Texas-based fast food chain, Rahimi’s public shootings led the Arlington Police Department to acquire a warrant to search his home. Officers confiscated a rifle and pistol, which Rahimi admitted to owning. However, at the time, Rahimi could not own or possess firearms. Previously in February 2020, the state granted his ex-girlfriend a protective order for herself and her and Rahimi’s child against Rahimi. A condition of the protective order precludes Rahimi from owning a firearm. The state possesses the authority to prohibit Rahimi from owning or possessing a firearm with a conviction of domestic violence under Title 18 U.S.C. § 922 (g) (8). 

In the aftermath of President John F. Kennedy’s assassination that left the nation questioning the role of guns in modern society, Congress passed the Gun Control Act in 1968, later amended in 1993 by the Brady Handgun Violence Prevention Act. Reasoning that guns possessed the potential for mass destruction that could threaten our democracy, Congress passed the Gun Control Act in order to protect its citizens from this harm by restricting who could own these types of weapons. The Brady Act’s section eight reads: 

It shall be unlawful for any person[] who is subject to a court order that[:] (A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate; (B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and (C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury . . . to . . . possess in or affecting commerce, any firearm or ammunition . . . . 

In other words, it is unlawful for an individual to own a gun if they have a restraining order out against them and if they pose a reasonable safety threat to their partner or child. This legislation reasonably attempts to prevent the occurrence of violence by people who are more likely to repeat these types of offenses. No one should argue that it is a morally good thing for a spouse to threaten or use a gun against their partner. 

Although meekly sympathetic to the plight of victims by briefly stating the statute as a “laudable policy goal,” the Fifth Circuit reasons that the applicability of the Constitution’s Second Amendment to every citizen regardless of other classifications supersedes Title 18 U.S.C. § 922 (g) (8). Therefore, they render statutory provisions Congress passes as unconstitutional despite their reasonable efforts to protect citizens from crime. 

As judicial conservatives increased the swell of their number on the nation’s highest court, broad interpretations of the Second Amendment, deeming the preamble non-binding, led to the outcomes of 2008’s DC v. Heller and 2022’s New York Rifle and Pistol Association, Inc v. Bruen. The Second Amendment to the US Constitution states “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Reading the plain text, it seems clear that the Framers understood that citizens would need guns to effectively participate in a militia. However, in modern times the federal government has not called ordinary citizens to serve in a militia. Instead, the US possesses a more complex system of defense forces. Therefore, the Framers reasoning feels obsolete in today’s society, which likely encourages far-fetched judicial reasoning that deems the preamble non-binding and the right to bear arms broadly applicable to all citizens. 

However, these cases did not involve expanding gun rights directly to convicted criminals. Heller worked as an FBI agent and Bruen concerned the arbitrariness of New York’s concealed carry licensing process.Neither of them had a criminal record.. With the ever-widening interpretation of the Second Amendment by conservative-dominated courts, it seemed like only a matter of time before a case like U.S. v. Rahimi  tested the scope of this interpretation. This dynamic has led to a balancing battle between one's constitutional right to bear arms and criminal statutes passed in order to protect against gun violence by likely offenders. While the Fifth Circuit just tipped the scales towards the Second Amendment, the policy implications of their decisions may lead to an increase in domestic harm.

Though one’s constitutional rights need and deserve protection, it seems counterintuitive to argue that someone convicted of domestic violence with a protective order against them should own such a deadly weapon. The framers of the US Constitution most likely would never have foreseen this outcome when drafting the Second Amendment. Therefore, judges throughout our court system may manipulate originalism to fulfill their desired conclusion. The Fifth Circuit in Rahimi ought to reconsider how their ruling as a policy outcome may detrimentally affect families. The Department of Justice seems to agree as they issued a statement on February 2, 2023 stating that they would seek further review of the Fifth Circuit’s troublesome opinion. 

Alexandra Herrera is a senior at Brown University, concentrating in Sociology with a focus in law and public policy. She is a staff writer for the Brown University Undergraduate Law Review and can be contacted at alexandra_herrera@brown.edu.