During all of these incidents, Rahimi was not supposed to have a weapon, one of the restrictions of a protection order issued in February 2020 after he allegedly assaulted his girlfriend. When officers executed a search warrant in connection with Rahimi’s alleged shooting, they found a pistol and rifle, in violation of both state and federal law. Rahimi was charged by a federal grand jury with possession of a firearm while a domestic violence injunction was in effect.

Rahimi argued in court that the prosecution violated his constitutional rights, and the courts initially disagreed. But after the landmark 2022 decision in New York State Riflemen and Pistols Association v. Bruen, in which the U.S. Supreme Court set a new standard that modern gun control laws must be “consistent with the text of the Second Amendment and historical understanding.” Rahimi’s case was retried, and the 5th District, according to Donald Trump appointee Corey T. Wilson, agreed that Rahimi’s rights were violated when law enforcement disarmed him due to a protection order.

“While Rahimi is hardly a model citizen, he is nonetheless part of a political community entitled to the guarantees of the Second Amendment, all other things being equal,” Wilson wrote in the ruling.

The ruling, joined by Judges James Ho and Edith Jones, has stunned advocates for victims of domestic violence, who see disarming abusive or dangerous domestic partners as an obvious first step in trying to prevent a tragedy.

“That the decision could be the same as Rahimi’s case terrifies me,” said Gina Lungwitz, director of the Domestic Violence Clinic at the University of Texas Law School. “It was proof that, you know, if we don’t care about his partner, then do we care about the public?”

According to the Texas Council on Domestic Violence, in 2021 alone, 127 women in Texas were killed by their male intimate partners with a gun. Across the country, an average of 70 women are killed each month by their partners with firearms. Research has shown that a victim of domestic violence is five times more likely to die when the abuser has access to a gun.

While the appeals court’s decision focused on abstract historical analysis, the risks to victims of domestic violence couldn’t be more immediate, says Mikisha Hooper, manager of community response coordination at the Texas Council on Domestic Violence.

Hooper compiled the stories of 204 intimate partner murder victims in 2021. At least five of them were killed while they had active protection orders, but orders are still the most effective tool victims have against harassment, stalking and violence, Hooper said. .

“It’s one of the few mechanisms that survivors have, it’s a direct intervention to stop the abuse,” Hooper said. “For most people, protection orders work, and they work better when all provisions are in place and firearms are taken out of the equation.”

Hooper said the decision would make victims of domestic violence less safe and less likely to follow protective orders, which may already seem risky to those at risk.

“If you know that your partner is very dangerous, very dangerous, has already threatened to kill you… especially if you know that there is no chance that he will have to hand over the weapons he threatened you with, it looks like he was simply taken from the survivors – they took the teeth out of it,” Hooper said.

Bruen’s ruling, passed last June, introduced a new test to determine the constitutionality of gun control laws, requiring them to “be consistent with the historical national tradition of regulating firearms.” Lower courts across the country have been forced to interpret this somewhat vague test, and have repeatedly overturned legislation aimed at protecting people from gun violence as a result. The 5th Circuit decision in the Rahimi case follows a November district court decision in a separate case in which U.S. District Judge David Counts of the Western District of Texas issued a similar decision in a case involving a man who was disarmed at a border checkpoint because an active protection order against him.

Second Amendment pundits disagree on whether the 5th Circuit decision applied Bruen correctly.

“I don’t think the Fifth Circuit’s decision is a clear misreading of Judge Thomas’ majority opinion. Or, if so, this is what has been repeated by a bunch of federal courts over the past seven months,” Steve Wladek, a University of Texas law professor who specializes in constitutional law, wrote in a blog about the decision. “Eventually, this kind of analogy hunt has resulted in courts overturning a number of gun restrictions in decisions that seem to defy common sense.”

Janet Carter, Second Amendment practice director for Everytown Law, said the 5th Circuit Commission’s opinion misapplied Bruen by repealing the law in part because the concept of domestic violence throughout history has not been understood in the way our modern society understands it now. .

“Bruen requires a history-driven approach to the Second Amendment, but he also requires courts to recognize that “unprecedented societal issues” — such as the eradication of domestic violence — require a more nuanced approach to historical investigation,” Carter said.

In the Rahimi case, the federal government argued that the law to protect victims of domestic violence was similar to historical laws that allowed “dangerous” people to be disarmed. But the 5th District found that those laws, which targeted Native Americans and blacks and those who didn’t “sworn an oath of allegiance,” were not similar enough to pass the test.

“The purpose of these ‘danger’ laws was to preserve the political and social order, not to protect a certain individual from a specific threat posed by another,” the court wrote.

“Bruen says explicitly that the government does not need to present direct historical twins of the law that it defends – but this is exactly what the opinion of the commission demanded,” Carter said. “If Bruen is properly applied on further review, this decision should be reversed.”

The federal government agrees and will appeal the case.

“Nearly 30 years ago, Congress ruled that a person subject to a court order prohibiting him or her from threatening an intimate partner or child cannot legally own a firearm,” U.S. Attorney General Merrick Garland said in a statement. “Whether analyzed through the prism of Supreme Court precedent or the text, history, and tradition of the Second Amendment, this statute is constitutional. Accordingly, the Department will seek further review of the Fifth Circuit’s contrary decision.”

Hooper said the decision is still very new and probably hasn’t reached the level of awareness of people who are currently under a protection order. But she said there was a real risk that, if the law was finally repealed, it would become another way to terrorize its victims.

“A very common tactic that violent people use is to make you believe that they have all the power and you have no options,” Hooper said. “What we are really worried about, even talking about it publicly, is that this will spread more and it will be weaponized as a control tactic. Now they can point to something and say, “No one is coming for my guns, so you have no choice.”

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