Last week, when the Supreme Court heard a Second Amendment challenge to that law, questions from Justices Thomas and Alito suggested that they would allow domestic abusers to keep their guns.
The 5th Circuit, Clarence Thomas resurrect the past
In March 2023, the conservative 5th Circuit Court of Appeals ruled in Rahimi that a violent and abusive Texas man under a restraining order was entitled to keep his guns, and that the federal law saying otherwise violates the Second Amendment.
Coloring inside the lines of Clarence Thomas’ ridiculous Bruen decision, the 5th Circuit held that the right to keep and bear arms excludes only convicted felons, the mentally ill, and “other groups that have historically been stripped of their Second Amendment rights.” Following Bruen, the Rahimi court ruled that the federal law keeping guns from people under restraining orders lacked “historical analogue.” Since men who brutalized their wives in the 1790s and 1860s did not categorically lose their muskets, men who beat their wives today get to keep their guns.
Profile of a violent man
During oral argument, no one seriously doubted that Rahimi was violent and dangerous. The record before the Court established that Rahimi, a drug dealer prone to violent outbursts, earned his restraining order by knocking his girlfriend over in a parking lot and dragging her back to his car. When he saw someone watching, he fired his gun, and the girlfriend ran. He later called and threatened to shoot her if she told anyone.
After she got a restraining order barring Rahimi from further contact and suspending his gun license, Rahimi went on a shooting spree. He fired his weapons during two separate road-rage incidents, discharged an AR-15 into a man’s home for offending him on social media, threatened another woman with a gun, and shot his gun inside a restaurant when his friend’s credit card was declined.
Thomas, Alito parrot the NRA during Rahimi argument
Rahimi’s defense counsel stressed that the protective order was entered after a “one-sided” civil proceeding, leading Thomas to assail the “thin record” of a protective order from a civil proceeding rather than criminal, using talking points straight out of the NRA’s amicus brief. The NRA’s brief questioned the validity of relying on a civil order that found Rahimi dangerous, because civil orders are based on a lower burden of proof than criminal convictions. Thomas said, “If this were a criminal proceeding … someone would be convicted of a crime, a felony assault, or something. But here you have … a civil court making the determination.” Thomas was unconcerned that it takes months and sometimes years to secure a criminal conviction for battery or attempted murder, a wait that could prove deadly.
Samuel Alito, another gun enthusiast who resurrected 12th century law in Dobbs to rule that women’s bodies are a state-controlled commodity, was also more worried about the due process rights of abusers than their victims.
Alito called domestic violence hearings “he said, she said” affairs, then queried how violent abusers might protect themselves if tables were turned and someone attacked them. “If the [legally restrained] person thinks that he or she is in danger and wants to have a firearm, is that person’s only recourse to possess the firearm and take their chances if they get prosecuted?” More concerned about hypothetical dangers a domestic batterer might face with no gun to protect themselves, Alito demonstrated near contempt for the very real battered woman in the case before him.
The bench seemed unpersuaded
Surreal questioning from NRA champions Thomas and Alito seemed to jar other conservatives on the bench. Justice Coney Barrett recalled the extensive evidence Rahimi’s girlfriend submitted to get her order of protection in the first place. Roberts clarified that Rahimi was in fact dangerous, while Kavanaugh credited the law with stopping gun sales based on domestic violence protective orders.
Adding them to liberals Kagan and Sotomayor, who dissented in Bruen, and Jackson, who rebuked the Bruen holding, the challenged gun restriction appears likely to survive, 7 to 2.
SCOTUS won’t be able to find the required “historical analogues” from the 18th or 19th centuries, given that domestic violence laws and restraining orders didn’t exist until the 1960-70s, so the Court will have to reverse or limit its holding in Bruen. However, they decide to fix their colossal mistake, it will be most gratifying for victims to hear the Court’s admission of error.
Sabrina Haake is a 25-year litigator specializing in 1st and 14th Amendment defense. Her columns appear in OutSFL, Chicago Tribune, Salon, State Affairs, and Howey Politics. She and her wife split their time between South Florida and Chicago. Follow her on substack.