by Katelynn Richardson
The Supreme Court will hear a case this coming term challenging a federal “Red Flag” law that prohibits individuals subject to domestic violence restraining orders from possessing firearms, which is expected to shape the future of Second Amendment law.
Zackey Rahimi, the individual at the center of the case, was involved in five shootings between December 2020 and January 2021, in one instance firing shots into the air after his friend’s credit card was declined at a Whataburger, according to court documents. When police obtained a warrant to search his home, they found him in possession of a firearm, a violation of a civil protective order entered against him in February 2020 for allegedly assaulting his ex-girlfriend.
A federal grand jury indicted Rahimi under a statute barring subjects of domestic violence restraining owners from possessing firearms. The Fifth Circuit agreed with Rahimi’s challenge to the law’s constitutionality in February, finding it did not fit “within our Nation’s historical tradition of firearm regulation,” the standard set out in the Supreme Court’s 2022 ruling in New York State Rifle & Pistol Association, Inc. v. Bruen.
“Rahimi, while hardly a model citizen, is nonetheless part of the political community entitled to the Second Amendment’s guarantees, all other things equal,” the court found.
The Fifth Circuit specified in its ruling that the question at hand in the case is “not whether prohibiting the possession of firearms by someone subject to a domestic violence restraining order is a laudable policy goal.” Rather, it frames it as a more nuanced question of due process.
“The question is whether a restraining order achieved through the civil law process (lower burden of proof), and not the criminal law process (higher burden of proof) is enough to strip a person’s constitutional rights when that person has not been convicted of a felony,” John Shu, an attorney and legal commentator who served in the George H.W. Bush and George W. Bush administrations, explained to the Daily Caller News Foundation.
Rahimi was charged with multiple state offenses prior to engaging in the five shootings — including aggravated assault with a deadly weapon in November 2020 and use of a firearm in the physical assault of his girlfriend in December 2019 — but was not convicted. If Rahimi had been convicted of a felony, the question now before the Supreme Court would be a non-issue because, as Shu said, he “definitely would have had his firearms taken away” as “federal and state law is clear, in line with history and tradition, that convicted felons may not buy, own, or possess firearms.”
“There’s no question that Rahimi admitted to engaging in reprehensible, felonious, criminal acts, independent of the domestic violence allegations,” he said. “One huge question is why both the Texas state and federal criminal justice systems failed to investigate, arrest, charge, hold without bail, and eventually convict and incarcerate Rahimi for any of them, especially given that the civil restraining order was issued nearly a year before most of his misdeeds.”
Advocates against domestic violence have come out in full force against Rahimi: “For thousands of women, children, and other potential victims of domestic violence, as well as potential other victims of mass shootings by domestic abusers, the stakes are literally life or death,” a coalition of gun violence and domestic violence prevention groups told the Supreme Court in a brief.
While gun groups note Rahimi is not a sympathetic plaintiff, they bristle at efforts to frame his case as one about domestic violence.
“One of the problems with this kind of gun control is it merely disarms a dangerous individual and then leaves them at large in society,” Aidan Johnston, director of Federal Affairs for Gun Owners of America, told the DCNF. “If Zackey Rahimi is too dangerous to own a gun, then why are we letting him run around in society to go and abuse other women?”
In divorce proceedings, Johnston said the judge will sometimes issue the kind of order applied to Rahimi to both parties in the case — the victim and the abuser.
“That’s what Gun Owners of America is fighting for in this case: to empower victims with their Second Amendment rights,” he said. “An unconstitutional, broad statute like this prohibited person category can result in the good guys getting disarmed while bad guys run free.”
Insofar as the Supreme Court’s ruling clarifies Bruen’s historical standard, legal experts say it could have an impact on pending cases challenging various gun restrictions in the lower courts.
In Florida, for example, the Eleventh Circuit is waiting for the Supreme Court’s ruling before proceeding with a lawsuit that challenges the states’ ban on individuals under 21 owning guns.
National Foundation for Gun Rights Executive Director Hannah Hill told the DCNF she anticipates the case having a big impact on “red flag” laws numerous states have passed.
“The arguments for stripping citizens of a Bill of Rights guarantee just based on a restraining order are identical to the arguments for red flagging someone,” Hill said. “The policies are very, very similar, and both should be struck down for the same reasons. You cannot deprive people of Bill of Rights guarantees unless a) they’ve committed an appropriate crime, and b) they’ve received full due process.”
Democratic Michigan Gov. Gretchen Whitmer signed a “red flag” bill into law in May. Republican Tennessee Gov. Bill Lee called on the state legislature to pass one in April, weeks after the Nashville Covenant School shooting.
“Due process includes jury trial, the right to face your accusers, beyond a reasonable doubt standard of evidence, etc. – namely all the protections on the criminal justice process side, which are laid out in the Constitution and the extensive body of statutory and case law fleshing out exactly what those due process protections are,” Hill told the DCNF.
The Biden administration urged the Supreme Court on Monday to rule against Rahimi, arguing that individuals subject to domestic violence protective orders “pose an obvious danger to their intimate partners because guns often cause domestic violence to escalate to homicide and because abusers often use guns to threaten and injure their victims.” Moreover, the government notes protective orders must “satisfy strict requirements” to strip an individual of their firearms under federal law.
“An order must either contain a judicial finding that the person poses a credible threat to the physical safety of another, or explicitly prohibit the use, attempted use, or threatened use of physical force,” Department of Justice Solicitor General Elizabeth Prelogar wrote in the government’s brief. “A court must have issued the order after notice and a hearing. And the disqualification lasts only as long as the order remains in effect.”
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Katelynn Richardson is a reporter at Daily Caller News Foundation.
