In a decision published on February 2, 2023 the Fifth Circuit U.S. Court of Appeals has ruled that a federal law barring domestic abusers from possessing guns while protection from abuse orders are in effect violates the 2^nd Amendment to the Constitution.

            Congress made it unlawful for a person to possess a firearm where there was an adjudication restraining that person from harassing, stalking, or threatening an intimate partner or a child of the 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. There needed to be  a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or by its terms explicitly prohibit 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; or who has been convicted in any court of a misdemeanor crime of domestic violence. 18 U.S.C. 922 (g)(8)

            Pennsylvania passed its own companion statute in 2005 in 23 Pa.C.S. 6108.3. Other states have similar legislation.

            The 5^th Circuit case involved a Texas defendant who had been arrested for five incidents where he fired shots in the course of a drug deal, a car accident, an encounter with a constable and while at a restaurant in late 2020 and early 2021. When police searched his home they found weapons which should have been surrendered in February, 2020 when the defendant became subject to a protection from abuse order involving a girlfriend.

            A federal grand jury indicted Zackey Rahimi for the federal weapons violation under 18 U.S.C. 922(g)(8). The defendant asserted that the federal statute was illegal but acknowledged that under an earlier 5^th Circuit case, U.S. v. McGinnis, 956 F.3d 747 (2020), the trial court was bound by precedent to convict him.  Once convicted, he launched his own appeal to the 5^th Circuit asking that court to revisit the McGinnis ruling. Now he also had the Supreme Court’s June, 2022 ruling in New York State Rifle and Pistol Assn., Inc.  v. Bruen. 142 S. Ct. 2111

            In Bruen the Supreme Court found that “the [G]overnment must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” Id.at 2127. In the course of its explication, the Court expressly repudiated the circuit courts’ means-ends scrutiny  — the second step embodied in cases…” like U.S. v. McGinnis.

            The crux of the Government’s position was that gun ownership and possession is intended to extend no further than “ordinary law-abiding citizens” and that the defendant’s conduct with his girlfriend took him outside that protection. The defendant asserted that the 2^nd amendment is to be broadly construed to encompass “the people” as the language of the amendment states and that there is no limitation on the term “the people.” The Circuit Court appears to acknowledge the power of Courts to remove firearms as part of a state action but finds that a civil action seeking protection from domestic violence does not qualify as state action, per se. The Court finds the distinction between removing weapons as part of a criminal matter and the same right in a civil matter to be important. Moreover, a reading of the Bruen case indicates that there must be a historical basis for limiting firearm possession and clearly, domestic abuse was not so recognized as a gun removing mandate at the time the Second Amendment was adopted. The Court notes that while there had been firearm regulations barring certain classes of individuals from possessing weapons of that kind before the Revolution, the efforts by legislators from Pennsylvania and Massachusetts to put limiting language on the Second Amendment were not included when all states voted to adopt the Bill of Rights.

            In a lengthy analysis of 17^th and 18^th century firearm regulations on both sides of the Atlantic, the Circuit Court acknowledges that there were surety laws requiring gunowners charged with offenses to post a bond in order to keep their weapons while awaiting trial, but the Court opines that the current federal law has no surety provision. The guns are simply taken when the abuse order is executed and when that is done in a civil context the due process protections due “the people” are violated. The conviction was vacated.

            The implications of this are big. Within the 5^th Circuit (Louisiana, Mississippi, and Texas) any gun owner who has had his weapons taken under a civil abuse order where there is no corresponding criminal case would seem to have the right to take a copy of U.S. v. Rahimi to his local constabulary and demand his guns back. The federal decision appears to effectively vacate the state court orders which are derived from the federal statute.

            In the 3^rd Circuit, where this blog lives, the 5^th Circuit precedent is “persuasive” but not binding until the local circuit courts rule. But the reasoning of U.S. v. Rahimi does carefully track the majority opinion of Justice Thomas right down to its tracing of British and Colonial gun laws such that judges in this bailiwick will find themselves hard pressed to identify the “historical precedent” for gun regulation that would limit the otherwise sweeping right of the “people to keep and bear arms.”

            What will be the effect? Over the short run, many guns may be returned and many domestic violence victims will experience sleepless nights while the “people” who commit domestic terror resume their lives “locked and loaded.” A secondary effect is likely to be that cops are going to do a lot more “arresting” because the Rahimi case appears to ratify the right of government to seize weapons where criminal charges are involved.

            The writer again notes that while he was once a fan of originalism as a judicial framework, this opinion much like Justice Thomas’ in Bruen leaves one wondering about the romance of the “good old days” of Bracton and Blackstone. Those were days were men were men, women were people whose legal existence was “suspended” during coverture and were subject to physical “correction” if they had the temerity to suggest otherwise. Children could be sold into apprenticeship beginning at age 7 and married at 13. It may have been a magical time to create the United States and its founding freedoms but few of us harken to renew much of that legal precedent today.

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