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Supreme Court Asked to Weigh Second Amendment Against Interests of Domestic Violence Victims

Supreme Court Asked to Weigh Second Amendment Against Interests of Domestic Violence Victims

Defendant: disarming individuals subject to a protective order conflicts “with this Nation’s historical tradition of firearm regulation” and exceeds Congress’s Commerce Clause power.

The United States has petitioned the Supreme Court to reverse a lower court’s invalidation of a law prohibiting firearms possession by individuals subject to a domestic-violence restraining order. The Fifth Circuit Court of Appeals held the law violated the Second Amendment right to bear arms.

The appeal stems from the conviction of Zackey Rahimi for possession of a firearm in his home. A family court judge in Texas had previously issued a protective order against Rahimi after giving him notice and an opportunity for a hearing. The order included a finding “Rahimi had ‘committed family violence’ and such violence was ‘likely to occur again in the future.'”

The order “prohibited Rahimi from committing family violence and from threatening, harassing, or approaching [the recipient of the order] or her family” and “suspended Rahimi’s handgun license, prohibited him from possessing a firearm, and warned him that possessing a firearm while the order remained in effect may be a federal felony” under the challenged law.

The challenged law, 18 U.S.C. § 922(g)(8), provides that

(g) It shall be unlawful for any person—

(8) 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

(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 ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

For Rahimi’s violation of § 922(g)(8), “[t]he [district] court sentenced him to 73 months of imprisonment, to be followed by three years of supervised release.” Rahimi then challenged the constitutionality of § 922(g)(8) before the Fifth Circuit Court of Appeals.

The appeals court initially ruled against Rahimi, relying on its 2020 decision affirming the constitutionality of § 922(g)(8). The Supreme Court later issued its 2022 landmark decision, New York State Rifle & Pistol Association v. Bruen, which announced a new standard for evaluating gun laws.

In Bruen, the Supreme Court held that when conduct—such as possession of a firearm commonly used for self-defense—falls within the scope of the Second Amendment, the government bears the burden of showing any restraint on that conduct “is consistent with this Nation’s historical tradition of firearm regulation.”

In light of Bruen, the appeals court reheard Rahimi’s claim and struck down § 922(g)(8) because the court found no historical analogs to the contested statute, despite the government offering historical laws disarming classes of individuals “considered to be dangerous” and “laws under which a person who was found to pose a threat to someone else could bear arms only if he posted a surety.”

The appeals court distinguished those purported analogs on the basis that the former were categorical, not individualized, deprivations and that the latter were only a “‘partial restriction’ on the right to keep and bear arms, while Section 922(g)(8) ‘works an absolute deprivation of the right.'”

The Solicitor General’s petition takes issue with the appeals court’s analysis of the purported analogs, noting that Bruen held that “even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.”

Rahimi’s brief in response to the Solicitor General’s petition argues that the purported analogs are so dissimilar from § 922(g)(8) as to disqualify them under the Bruen framework. Rahimi’s brief argues the purported analogs “did not disarm individuals entitled to the full benefits of citizenship,” nor did those laws “disarm individuals to avoid private violence.”

Rahimi’s brief also challenges the basis for § 922(g)(8) under Congress’s power to regulate commerce. The brief argues “§ 922(g)(8) conflicts with the original understanding of the Constitution” because “Congress has no enumerated power allowing it to forbid and punish the possession of durable goods like firearms within the home merely because the items moved across state lines at some point in the past.”

In support of this argument, Rahimi’s brief points to the legislative record, which shows “Congress was initially uncertain that it had the power, ‘under the Constitution, [to] deny a man the right to keep a gun in his home.'”

The Solicitor General’s petition for a hearing by the Supreme Court:

Rahimi’s brief in opposition to a hearing by the Supreme Court:


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The Commerce Clause challenge is not an add-on but the essential point of the law. The original intent of commerce regulation was to promote commerce by preventing states from interfering with commerce across state lines. But over the years “to regulate commerce” was used as an excuse for the Congress’s overreach into police powers. The fact that pieces of a gun are transported across state lines during manufacture does not give the Congress an exemption to the Second Amendment.

A lot of what’s wrong with government can be fixed by reigning in the usurped power of the commerce clause.

    MarkSmith in reply to George S. | June 9, 2023 at 12:00 pm

    Any there is the problem. The government’s over reach. Our court systems are failing us.

      1073 in reply to MarkSmith. | June 9, 2023 at 1:26 pm

      The Federal Government would shrink by 60% if the overly broad definition of the Commerce Clause was struck down. And I’m all for it!

      Dathurtz in reply to MarkSmith. | June 9, 2023 at 2:31 pm

      It’s crazy how the federal government decided the federal government could grab more power.

        henrybowman in reply to Dathurtz. | June 9, 2023 at 5:22 pm

        It is, perhaps, a fact provocative of sour mirth that the Bill of Rights was designed trustfully to prohibit forever two of the favorite crimes of all known governments: the seizure of private property without adequate compensation and the invasion of the citizen’s liberty without justifiable cause…. It is a fact provocative of mirth yet more sour that the execution of these prohibitions was put into the hands of courts, which is to say, into the hands of lawyers, which is to say, into the hands of men specifically educated to discover legal excuses for dishonest, dishonorable and anti-social acts.
        –H.L. MENCKEN

texansamurai | June 9, 2023 at 12:42 pm

Any there is the problem. The government’s over reach. Our court systems are failing us.
as are some of our criminal justice “systems”–the headline of this post references “domestic violence victims’ interests”–if they are “victims” then what, if anything, has been done to restrain/punish the perpetrators of such violence?–if the perpetrators have previously been charged / convicted of violence (especially “lethal force”) against innocents (and especially children) what the living hell are they doing out on the street?–rather than taking firearms away from them, seems would be more effective for all to lock-up the perps–am not a lawyer but am pretty certain convicted criminals are not allowed to keep and bear arms when a guest of the city / county / state

    henrybowman in reply to texansamurai. | June 9, 2023 at 1:53 pm

    This is a simple restatement of Codrea’s Razor: Anyone who can’t be trusted at large without a gun cannot be trusted at large without a custodian.

    Prisons serve three purposes: punishment, rehabilitation (theoretically), and quarantine away from the innocent.

    A person who is not safe to let loose in society should be in prison. A person who is out in society should be a free person.

    The whole problem is that politicians have appropriated the streets of your neighborhood to use as “extension prisons” to save themselves money and effort. This is the cheap, corner-cutting approach to your safety. Do you remember ever agreeing to that?

    Instead of giving someone with his second armed assault conviction parole after three years and a bunch of stupid, unenforceable restrictions for the rest of his life (during which he preys on his fellow citizens until caught again, if ever), give him a full 20 or 30, after which he has the same rights as anyone else. If he hasn’t wised up, calmed down, or geezered out by that time, and does it again, keep his neighbors safe from him for the rest of his natural life.

    Today’s practice of making our neighborhoods “extension prisons” for people that we wouldn’t trust with a gun, and then expecting some pissant piece of paper to keep weapons and other contraband away from them, is nothing but insanity. It would have been intuitive to our great, great grandparents, but we are apparently much more easily fooled. And this, more than anything else, is the most existential truism behind the Bruen decision.

      CommoChief in reply to henrybowman. | June 10, 2023 at 7:29 am


      I couldn’t agree more with this. Lock up the dangerous criminals. When we let them out however then they must again be free Citizens. If they can’t be fully trusted with that freedom, as much as anyone else not in Prison, then keep them locked up.

People who commit domestic violence should be denied the legal right to carry firearms, scalpels, and other weapons used to cause abortion, injury, “therapy”, etc of human lives.

    randian in reply to n.n. | June 10, 2023 at 5:56 am

    This person wasn’t convicted of domestic violence, he was the subject of a (presumably ex-parte) restraining order. Most such restraining orders are not issued for actual acts by the restrained, they are issued as pro-forma attacks, almost always by a woman against a man.

The tenth amendment has been ignored far too long

The “commerce clause” does not outweigh the second amendment, duh

inspectorudy | June 9, 2023 at 6:10 pm

The tenth amendment has been used as the entry for so many illegal laws and rulings that it is all but unrecognizable. As our favorite POTUS, obama, once said, the Constitution is “A charter of negative liberties. It says what the states can’t do to you. Says what the federal government can’t do to you but doesn’t say what the federal government or state government must do on your behalf.”
This how little this man knew of our Constitution!