Nov. 15, Natalie Nanasi, an associate professor at SMU Dallas Dedman School of Law, for a commentary evaluating the arguments brought before the U.S. Supreme Court as they consider a petition to strike laws that presently prevent domestic violence abusers from possessing guns. Published in The Hill under the heading Does the Second Amendment protect the right of abusers to own a gun? We’re about to find out: https://tinyurl.com/y5p8kyfj
The U.S. Supreme Court heard arguments last week in U.S. v. Rahimi, a case that will determine whether a federal law that keeps guns out of the hands of domestic violence offenders is constitutional. In a country where an average of 70 women are shot and killed by an intimate partner every month, the outcome is a matter of life and death.
Before we begin, however, we must better understand how Zackey Rahimi became the focus of the case, and how and why it advanced to the Supreme Court.
By Natalie Nanasi
The U.S. Supreme Court heard arguments last week in U.S. v. Rahimi, a case that will determine whether a federal law that keeps guns out of the hands of domestic violence offenders is constitutional. In a country where an average of 70 women are shot and killed by an intimate partner every month, the outcome is a matter of life and death.
Before we begin, however, we must better understand how Zackey Rahimi became the focus of the case, and how and why it advanced to the Supreme Court.
Who is Zackey Rahimi?
Even the right-leaning Cato Institute admits that Zackey Rahimi is neither a “sympathetic [nor] relatable person.” He violently abused the mother of his child for years, which ultimately led her to seek a protective order against him. In her sworn petition, she told the court: “I need a protective order because I am afraid that Zack will kill me and my son.”
The protective order entered by a Texas judge made it unlawful for Rahimi to possess a firearm, but he not only kept his guns, but went on a shooting spree. He fired a gun at a constable’s vehicle. He sprayed bullets in the air when his friend’s credit card was declined at a Whataburger drive-thru. He fired an AR-15 into the house of someone he had sold drugs to. He shot his gun in at least two road rage incidents, including when the driver of another car merely flashed headlights at him.
All in all, a federal court’s description of Rahimi as “hardly a model citizen” seems like the understatement of the year.
How did this case get to the Supreme Court?
For years, the Supreme Court analyzed Second Amendment claims in the way it analyzes claims in nearly all other areas of constitutional law: balancing the government’s interest with the burden on a person’s constitutional rights. But last year, in New York State Rifle & Pistol Association v. Bruen, the court created a new legal test just for the Second Amendment. Now, only laws that are “consistent with this Nation’s historical tradition of firearm regulation” are constitutional.
After Bruen, Rahimi challenged the federal statute that prohibited him from possessing firearms. The Fifth Circuit Court of Appeals struck down the law because it could not find evidence of a regulation from 1791 — when the Second Amendment was ratified — that disarmed those subject to domestic violence protective orders. The government appealed that decision to the Supreme Court.
What happened at the oral argument?
The arguments at the court were wide-ranging and complex, but three issues are particularly noteworthy:
1. Dangerous people should not have access to guns
In 1791, women did not have the right to vote. When they married, and nearly all did, their husbands legally controlled their money, labor and property. Domestic violence was tolerated, and guns were too slow and unwieldy to be used against intimate partners. It would therefore be impossible to find a regulation from the 18th century that disarmed a domestic violence offender.
Solicitor General Elizabeth Prelogar reminded the court that Bruen doesn’t require such a “historical twin,” but instead, as Justice Clarence Thomas wrote in the majority opinion in Bruen, a “historical analogue.” To be constitutional, the modern-day law need only be based on similar principles as the historical law — in this case, ensuring that dangerous people do not have access to guns.
Historians submitted ample evidence to the court that the Second Amendment rights of “dangerous persons” have, since the nation’s founding, been limited. Even Justice Amy Coney Barrett wrote, prior to joining the Supreme Court, that “[h]istory is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns.”
Experts have noted that a survivor’s petition for a protective order “is often precipitated by particularly severe violence.” Rahimi himself is a poster child for how dangerous individuals subject to protective orders can be to not only their intimate partners but the public at large.
2. Due process in protective order proceedings
The Fifth Circuit claimed that courts grant domestic violence protective orders “automatically” and “to virtually all who apply.” Nothing could be further from the truth. In fact, the Solicitor General noted that in Tarrant County, where the protective order against Rahimi was issued, only 1,309 of the 2,052 protective orders requested in the last five years were granted.
The justices, including the conservative Justice Barrett, were skeptical of Rahimi’s claim that due process is lacking in protective order hearings. In fact, such proceedings are no different from any other civil matter (such as a contract dispute or slip-and-fall case). Respondents like Rahimi must receive notice and have the opportunity to be present at a hearing. The rules of evidence apply, and the survivor bears the burden of proof to justify the order.
3. An opportunity to clarify
During the oral arguments, Justice Elena Kagan remarked that Bruen’s new test has created confusion in the lower courts. Prelogar agreed that decisions have been erratic and “destabilizing.”
Rahimi thus provides an opportunity for the Supreme Court to set guidance to about what Bruen’s “history and tradition” test requires. This is critical to ensure consistency as courts across the U.S. consider contemporary firearms issues such as regulation of ghost guns, red flag laws, penalties for obliterated serial numbers, and the regulation of guns in sensitive places like schools and airports.
When and how will the court rule?
Now that they have heard arguments from both sides, the justices will take the next few months to consider the issues and draft an opinion. The court will not hand down a decision until this summer, so we will have plenty of time to speculate about how it might rule.
But this should not be a tough decision for this otherwise divided court. As Justice Sonia Sotomayor wrote for a unanimous Supreme Court in 2014, “the only difference between a battered woman and a dead woman is the presence of a gun.”
People experiencing intimate partner violence face grave danger when their abusers have access to firearms. The ability to disarm those subject to protective orders can save lives. The court should, and easily can, take this opportunity to enshrine commonsense protections for survivors.
Natalie Nanasi is a law professor at the Dedman School of Law, SMU Dallas, where her research focuses on the intersection of domestic violence and the Second Amendment.