Rahimi, domestic violence, and the 5th Circuit is worth talking about

Why are so many people, including Governor Gavin Newsom, discussing the appellate decision in United States v. Rahimi? Simply put, the Rahimi decision has, and possibly will, shake the domestic abuse system to its core.

Strangely, the most undesirable litigants are the ones who make the most sizable legal impact. For example, in the landmark case of Miranda v. Arizona (384 U.S. 436 (1966), Ernesto Miranda was convicted of rape and kidnapping and sentenced to 20 to 30 years in prison - a proper outcome for his crimes. However, Miranda's conviction was overturned for his Fifth Amendment rights violations. The Court found that Miranda, who had been identified by eyewitnesses and provided a signed written confession to the police, was not adequately advised of his right to consult an attorney and have the attorney present during questioning nor his right not to be compelled to incriminate himself. (Id. at 493) His original conviction overturned, and on retrial, he was again convicted and sentenced to 20 to 30 years for the same crimes (though his confession was not used). However, his case (and the subsequent "Miranda Warnings") changed criminal procedure.

The United States v. Rahimi (February 2, 2023--- F.4th ----2023 WL 1459240) may be just such a case when it comes to domestic violence. Mr. Zackey Rahimi, by all accounts, is not a person who should own or possess a firearm. In two months, he was involved "in five different incidents regarding shootings in and around Arlington, Texas." This included shooting at a driver with whom he was involved in a car accident, at a restaurant where his friend's credit card was declined, and at other individuals or their vehicles. He was also subject to a restraining order which restrained him "from harassing, stalking, or threatening his ex-girlfriend and their child" and possessing a firearm. It was, in fact, the restraining order that led to Federal firearms charges (18 U.S.C. §922(g)(8)) and his guilty plea to that offense which is why we are discussing him.

Mr. Rahimi appealed his decision and was on his way to an appellate loss until the Supreme Court decided New York State Rifle & Pistol Association, Inc. v. Bruen, 142 S. Ct. 2111 (2022). In Bruen, the Supreme Court held that "[w]hen the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct." (Id. at 2129-30.) The Rahimi Court, rehearing the matter after the Bruen decision, stated, "the Government bears the burden of 'justify[ing] its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation.' Put another way, '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.'" (Citations omitted).

The Rahimi Court, again citing Bruen, held that the Government must point to "historical precedent from before, during, and even after the founding [that] evinces a comparable tradition of regulation." (Bruen, 142 S. Ct. at 2131-32.) When the challenged regulation addresses a "general societal problem that has persisted since the 18th century, the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment." (Id. at 2131.) In other words, since the framers of the Constitution and Bill of Rights were well aware of domestic violence and laws of that time did not address the issue (i.e., a basis to remove firearms from those who committed domestic violence), the Government is precluded from doing so now. The Rahimi Court ruled, "through that lens, we conclude that § 922(g)(8)'s ban on possession of firearms is an 'outlier[] that our ancestors would never have accepted." Id. Therefore, the statute is unconstitutional, and Rahimi's conviction under that statute must be vacated.'"

It should be pointed out that England did not allow divorce based on violence and cruelty until the 1860s, roughly when the first laws were passed in the United States to prevent domestic violence. Women did not gain the right to vote until 1919, and California did not pass its first statute preventing domestic violence until 1945. Even then, the abuse had to result in a traumatic condition.

At this stage, knowing the full fallout from the Rahimi case is impossible. The United States Department of Justice has announced it will appeal the decision. Whether that is en banc or to the Supreme Court is not yet known. As Rahimi was decided in the Fifth Circuit, it is not binding in Ninth Circuit or California, but a Supreme Court decision would be. Further, a significant emphasis was placed on Mr. Rahimi's gun rights being extinguished in a civi

proceeding (a domestic violence hearing) rather than a criminal proceeding, which the Court concluded may be a lawful basis to remove the firearms depending on the offense.

So is Rahimi the beginning of the end of gun restrictions in restraining order cases? It depends...