TW: References to domestic violence
If statistics hold true, by the time you finish reading this article, approximately 60 people will have been physically abused by an intimate partner. Domestic violence survivors often face numerous struggles after leaving their abusive partner. One resource they have available to them is a domestic violence protective order (DVPO). These orders are typically entered to help survivors feel safer after incidents of domestic violence and often restrict the person who is subject to a DVPO from accessing firearms. However, with the pending Supreme Court case United States v. Rahimi, federal law on these restrictions will likely change in the near future.
Firearm restrictions for abusive partners who are subject to a domestic violence protective order are currently governed by 18 U.S.C. § 922(g)(8). Under this provision, individuals with a DVPO against them are prohibited from shipping, transporting, or possessing firearms. § 922(g)(8) was enacted with the Gun Control Act of 1968 in response to various assassinations of political leaders to limit who had access to firearms.
These restrictions have been effective in protecting survivors of domestic violence from their abusive former partners. Research from the American Journal of Epidemiology indicates a reduction in the number of domestic violence-related homicides when the DVPO prohibits the subject’s firearm ownership. Despite the effectiveness of the firearm prohibition requirement in these DVPOs, the Supreme Court’s decision in United States v. Rahimi may have drastic consequences for the safety of domestic violence survivors.
In 2022, the Supreme Court established a new test for passing constitutional muster in Second Amendment cases in the case of New York State Rifle & Pistol Association v. Bruen. Under the new test, “[w]hen the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct.” If so, the government must show that the regulation is consistent with the historical tradition of firearm regulation. Since this holding, countless challenges to firearm laws have arisen, most notably in United States v. Rahimi.
In February 2020, Zackey Rahimi became subject to a DVPO brought by his ex-girlfriend. Among other things, the Court ordered that Rahimi was prohibited from possessing a firearm. After police identified him as a suspect in various prior shootings, officers discovered a rifle and a pistol in his residence. A federal grand jury later indicted Rahimi for violating § 922(g)(8). Based on the Court’s ruling in Bruen, Rahimi challenged the statute's constitutionality. Despite the first prong of the Bruen test being satisfied, the 5th Circuit Court of Appeals held the statute unconstitutional because its restriction was not within the “Nation’s historical tradition of firearm regulation.”
The Supreme Court granted certiorari on June 30, 2023, and oral arguments were scheduled for Nov. 7, 2023. Regardless of how the Court will rule in Rahimi, there will be a lingering effect on firearm restrictions for DVPOs. If the Court overturns the 5th Circuit’s decision, it will strengthen the justification for firearm restrictions in domestic violence situations and be a major win for gun control activists. However, because of the timeliness of the case compared to Bruen and the current composition of the Supreme Court, it is likely that the Court will uphold the 5th Circuit’s ruling. With this outcome, it is likely that future DVPOs will no longer stop those who are subject to these orders from possessing or purchasing firearms. This ruling would allow individuals who have been abusive to their former or current partners to have access to firearms. This is especially concerning because individuals are five times more likely to be murdered when the abuser has access to firearms. As a result, countless survivors and their families would be left without an important level of protection.
Assuming the Court upholds the 5th Circuit’s decision, there are steps that attorneys can take in preparation for and following the court’s ruling. Attorneys who work with survivors should counsel them on changes to the law and provide them with information on resources that could help them throughout the process. Additionally, attorneys can encourage these clients to have a safety plan in play to protect themselves. Attorneys working with subjects of a DVPO should counsel their clients in the state of the firearm law but should encourage them to stay away from the survivor. Lastly, it is not a secret that working on domestic violence law cases can be dangerous for all parties involved. Therefore, depending on the outcome of the case, it may be helpful for domestic violence attorneys to take safety precautions to ensure that they are not harmed during their representation.
Although the Court’s ruling on Rahimi likely will not be released until 2024, attorneys need to begin taking precautions to advise their clients on how to protect themselves and stay out of harm’s way in domestic violence situations.