This week the U.S. Supreme Court heard another major case, United States v. Rahimi, concerning gun rights, and appeared to be leaning toward upholding a federal law that bans people under domestic violence restraining orders from owning guns.
The court's decision, expected in the first half of 2024, could have a major impact on other gun laws, as well as on people, particularly women, involved in domestic violence cases. Advocates for both gun control and victims of intimate-partner violence have expressed concern at the potential implications of the court’s ruling.
“The fact we are even discussing that perpetrators of domestic abuse can have access to firearms is absolutely appalling,” said Christian Nunes, president of the National Organization for Women, in a statement to Yahoo News. “If the Supreme Court affirms the circuit court’s ruling, women and families’ lives will be in greater danger, and perpetrators will be able to exacerbate fear without accountability.”
Kerri Raissian, director of the University of Connecticut's Center for Advancing Research, Methods, and Scholarship in Gun Injury Prevention, spoke with Yahoo News about the potential implications of this Second Amendment case before the U.S. Supreme Court. (Some responses have been lightly edited for length and clarity.)
Yahoo News: How did United States v. Rahimi end up before the Supreme Court?
At the heart of the Rahimi case is really what kind of restrictions the government can place on an individual's rights to bear arms. Mr. Rahimi has a history of domestic abuse such that he had an order of protection against him and also had possession of a firearm, which the order of protection prohibited. He was charged with violating criminal law for having a firearm in his possession and trying to also use that firearm against his partner.
Mr. Rahimi appealed that decision to the Fifth Circuit Court. The court said that based on the Bruen decision (New York State Rifle & Pistol Association v. Bruen), which had been decided last summer, [it] ruled that Mr. Rahimi could have his gun and that prohibiting people with an order of protection against them was outside of what the government could do based on the Bruen decision. So that has been appealed (by the Biden administration, which is how it ended up before the U.S. Supreme Court.)
What does the New York State Rifle & Pistol Association v. Bruen decision have to do with this case?
The Bruen decision, in and of itself, was a very narrow ruling, which said that the Sullivan law from New York state was not constitutional. (The Sullivan [Act] was enacted in 1911 and established restrictions on concealed carrying in public.)
What Bruen really did was it said, going forward, gun laws needed to have a historical basis for that regulation. And this is a real problem for governments across the country trying to figure out what that historical regulation might look like. (The court ruled that gun regulations must be "consistent with this nation's historical tradition of firearm regulation" to survive court challenges.)
Obviously when the Constitution was written, guns were very different than they are now. We've gone from a single shot musket to AR-15’s on the civilian market. But relevant to the Rahimi case, domestic violence also looks different. At the time the framers were thinking about gun laws, domestic violence wasn't actually a crime because women were property of their husbands.
What will you be watching for?
A question for all of us watching Rahimi is not just: What is the Supreme Court going to do with domestic abusers having guns or not? But are they going to do anything to clarify what they mean by “historical test” and how we need to be thinking about acceptable gun regulation moving forward, because it's been a year of lower courts really trying to figure that out and grappling with this.
If the Supreme Court rules in favor of Rahimi, what are the national implications?
I think if they rule in favor of Rahimi, the narrowest ruling is that those with a domestic violence order protection against them would most likely have their gun rights restored, and it would be unconstitutional to remove firearms from those with domestic violence protection orders against them.
From my perspective, I don't know how you don't extend that to extreme risk protection orders, which are very similar to domestic violence protection orders. Both are civil documents, both are predicated on someone being a danger to themselves or others. Orders of protection are just limited in the petitioner's relationship to the respondent. There has to be a domestic or familial relationship or intimate relationship.
The difference is the relationship between the petitioner and the respondent in an extreme risk protection order. They don't actually have to have a relationship. In fact, in most cases it's law enforcement bringing this petition.
So if the Supreme Court does rule in favor of Mr. Rahimi, I don't know how there's not a very quick filing on behalf of someone that's under an extreme risk protection order ruling to have their gun rights restored.
And then of course the next challenge would be if those convicted of domestic violence misdemeanors could have their gun rights restored, and you could imagine a domino effect of felons, those with drug addictions, those with adjudicated mental illness concerns [also having their gun rights restored].