Bloomberg Law
Feb. 2, 2023, 8:55 PMUpdated: Feb. 3, 2023, 3:52 PM

Gun Ban Tied to Domestic Violence Ruled Unconstitutional (1)

Jacklyn Wille
Jacklyn Wille
Legal Reporter

A federal criminal statute barring the gun ownership by people subject to domestic violence restraining orders is unconstitutional under new US Supreme Court precedent, the Fifth Circuit ruled Thursday.

The statute, which applies to people deemed to be a credible threat to their intimate partners, isn’t consistent with the country’s “historical tradition of firearm regulation,” the US Court of Appeals for the Fifth Circuit ruled. It’s therefore unconstitutional under the Supreme Court’s 2022 opinion in N.Y. State Rifle & Pistol Ass’n Inc. v. Bruen, which invalidated a licensing requirement for carrying a firearm in public, the appeals court said.

Bruen renders the Fifth Circuit’s prior precedent “obsolete” and prevents the court from weighing a given law’s policy goals, the court said. Instead, the proper question is how a given law fits into the historical nature of gun rights in the country, the court said.

The Department of Justice said late Thursday it would appeal the decision.

“Nearly 30 years ago, Congress determined that a person who is subject to a court order that restrains him or her from threatening an intimate partner or child cannot lawfully possess a firearm,” Attorney General Merrick B. Garland said in a news release. “Whether analyzed through the lens of Supreme Court precedent, or of the text, history, and tradition of the Second Amendment, that statute is constitutional.”

Historical Survey

The New Orleans-based appellate court concluded that the domestic violence statute at issue wasn’t sufficiently similar to any of the historical laws presented by the government. Prosecutors pointed to colonial laws disarming classes of people deemed to be dangerous, but these laws were aimed at preserving political and social order, not protecting an identified person from the specific threat posed by another, the court said.

The decision is a victory for Zackey Rahimi, who was suspected of being involved in five shootings in Texas between 2020 and 2021. After a police search of his home uncovered multiple firearms, he was charged with unlawfully possessing a firearm while under a court order preventing him from harassing, stalking, or threatening his ex-girlfriend. The US District Court for the Northern District of Texas denied his motion to dismiss the ensuing indictment and Rahimi pleaded guilty.

The Fifth Circuit rejected his appeal in 2022, but it withdrew that decision after the Supreme Court decided Bruen and agreed to look at the case again.

Judge Cory T. Wilson wrote the opinion. Judge Edith H. Jones joined.

Judge James C. Ho filed a concurrence saying that the fundamental role of government to protect citizens against violence is “entirely compatible” with the individual right to keep and bear arms.

Attorneys with the Federal Public Defender’s Offices in Amarillo, Texas, Lubbock, Texas, and Dallas represented Rahimi. Attorneys with the Department of Justice and the US Attorney’s Office in Dallas prosecuted the case.

The case is United States v. Rahimi, 5th Cir., No. 21-11001, amended opinion filed 3/2/23.

(Updates Feb. 2 story with information about DOJ appeal beginning in fourth paragraph.)

To contact the reporter on this story: Jacklyn Wille in Washington at

To contact the editors responsible for this story: Rob Tricchinelli at; Andrew Harris at

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