A panel of federal appeals judges ruled on Thursday that the federal law prohibiting people from possessing a firearm while under a domestic violence restraining order is unconstitutional, according to Vox. Under Judge Cory Wilson’s opinion, people with a history of violent abuse of their romantic partners or the partners’ children now have a Second Amendment right to own a gun, even if a court has determined that they are “a credible threat to the physical safety of such intimate partner or child.” The immediate impact of this decision is that Zackey Rahimi, who was subject to a 2020 civil protective order by a Texas court after Rahimi’s alleged assault of his ex-girlfriend,” may not be convicted of violating the federal ban on gun possession by domestic abusers. Because the decision was handed down by the U.S. Court of Appeals for the Fifth Circuit, which presides over federal lawsuits in Louisiana, Mississippi, and Texas, this federal law can no longer be enforced in those states. It is far from clear that the decision is wrong under a new precedent established last year by the Supreme Court that expanded the Second Amendment.
Until last year, federal courts applied what one Fifth Circuit judge described as a “two-step analytic framework” in Second Amendment cases. The judge said “severe burdens on core Second Amendment rights” are subject to “strict scrutiny,” the most skeptical level of review in most constitutional cases. In New York State Rifle & Pistol Association v. Bruen in 2022, the Supreme Court tossed out the old two-step framework in favor of a new test that centers on the history of English and early American gun laws. Under this new framework, the government has the burden of proving that a gun regulation “is consistent with this Nation’s historical tradition of firearm regulation,” or else that regulation must be struck down. If courts take this framework seriously, it is questionable whether any law seeking to prevent domestic abusers from owning firearms may be upheld. The early American republic was a far more sexist place than it is in 2023, and it had far fewer laws protecting people from intimate partner violence. Wilson’s opinion might still allow domestic abusers to be stripped of their guns — but only if they’ve previously been convicted of a felony. In 2008, the high court held that its interpretation of the Second Amendment “should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill.” That may be cold comfort to victims of domestic violence whose abusers have not been found guilty of a felony.