On November 7th, the Supreme Court will hear oral argument in the Rahimi case

 

Rahimi is about whether, in light of the Supreme Court’s recent decisions that it’s unconstitutional to fetter gun rights in any way beyond what the Founding Fathers expressly authorized - a law that makes it a federal crime to possess a firearm if you’re under a domestic violence restraining order is unconstitutional.

The Fifth Circuit’s opinion in that case starts like this: “The question presented…is not whether prohibiting the possession of firearms by someone subject to a domestic violence restraining order is a laudable policy goal, the question is whether 18 U.S.C. § 922(g)(8), a specific statute that does so, is constitutional under the Second Amendment of the United States Constitution. In the light of N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen…it is not.” They proceeded to decide, of course, that gun rights are more important than women’s lives.

Despite the pro-gun mood on the court, up until now, 18 U.S.C. § 922(g), which lists categories of people for whom it’s a crime to possess a firearm, has passed constitutional muster in the courts. The statute is used most frequently for people with a prior felony conviction but also extends to people who are unlawfully in the United States or are addicted to illegal drugs, as well as others including domestic violence offenders and those under restraining orders.

Congress has said the domestic violence prohibitions in the law are intended to help keep firearms out of the hands of people who have demonstrated that they pose an unacceptable risk to others.

The Fifth Circuit held that Rahimi’s conviction for possessing a firearm while under a domestic violence restraining order had to be overturned. They reasoned that his right to have a gun was protected by the Second Amendment, noting that “the Heller Court began its analysis with the ‘strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.’”

“Rahimi,” the Fifth Circuit concluded, “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 concluded that “§922(g)(8)’s ban on possession of firearms is an ‘outlier[] that our ancestors would never have accepted.’…Therefore, the statute is unconstitutional.”

Let’s hope the Supreme Court has better sense than the increasingly dogmatic Fifth Circuit Court of Appeals. More background on the Rahimi case in an earlier Civil Discourse from when the briefs were filed here. You can listen to the oral argument Tuesday morning by following the link on the Supreme Court’s website.

-Joyce Vance