Jonathan P. Baird

Domestic violence often disappears from the headlines. Usually only stories like an intimate partner homicide or another mass shooting break through public inattention.

Court decisions about domestic violence mostly do not register but on February 2, there was a decision that I found jolting. The Fifth Circuit Court of Appeals, a federal appeals court with jurisdiction over Texas, Louisiana and Mississippi, issued a shocker decision in the case of United States v Rahimi. The Court ruled a federal law prohibiting individuals from owning or possessing a firearm while under a domestic violence restraining order is unconstitutional.

At present that ruling only applies in those three states but it is very likely that the case will ultimately land at the U.S. Supreme Court. The government is likely to appeal the Court’s ruling.

The Fifth Circuit decision on Rahimi follows from another 2022 decision issued by the U.S. Supreme Court, New York State Rifle and Pistol Association v Bruen. That case, an opinion by Justice Clarence Thomas, offered the most expansive interpretation of the Second Amendment yet. Offering a novel legal test, Justice Thomas opined that the government has the burden of proving that a gun regulation “is inconsistent with the nation’s historical tradition of firearm regulation”.

Without getting too deep into the legal weeds, what that means is that the Court will look to early American history to determine if there was a deeply rooted tradition of disarming individuals under a restraining order for domestic violence. The Court found that the historical record showed domestic violence abusers were not routinely disarmed in the 18th and 19th centuries.

The result is a court decision that found that people with a history of violent abuse of their intimate partners do, in fact, have a Second Amendment right to own and possess guns even if a court had determined they are a credible threat to the physical safety of their intimate partner.

It is hard to overstate how dangerous and wrong-headed the Fifth Circuit’s opinion is. Using a cherry-picked version of history and originalism, the Court embraced a far right ideology that is steeped in sexism and disregard for women. Domestic violence was not considered a crime for most of U.S. history. It is a 20th century notion that men should not be allowed to abuse women.

The writer Ian Millhiser says that early on in American history wife-beating was considered “a familial affair” beyond the province of courts. It was seen as a natural part of private family life. Domestic violence regulation did not exist in the 1790’s. Back then, women were not allowed to vote or serve in office. Married women couldn’t own property or enter into contracts. Women were essentially the property of their husbands.

The Fifth Circuit evinced no awareness of this history. They also downplayed the serious danger to public safety embodied in their analysis. About Mr. Rahimi they wrote in their opinion:

“ Between December 2020 and January 2021, Rahimi was involved in five shootings in and around Arlington, Texas. On December 1, after selling narcotics to an individual, he fired multiple shots into that individual’s residence. The following day, Rahimi was involved in a car accident. He exited the vehicle, shot at the other driver, and fled the scene. He returned to the scene in a different vehicle and shot at the other driver’s car. On December 22, Rahimi shot at a constable’s vehicle. On January 7, Rahimi fired multiple shots in the air after his friend’s credit card was declined at a Whataburger restaurant.”

Rahimi was seriously out-of-control. He was subject to a restraining order for assault on his ex-girlfreind. When the police executed a search warrant of his residence because of these later events they found a rifle and a pistol. Prosecutors charged and convicted him for unlawful possession of his guns in violation of the restraining order.

You do not have to be a legal scholar to realize how badly the Fifth Circuit has stumbled here. It make no sense to look to the 18th century for a rationale to address a problem only fully recognized in the 21st century.. The decision will have lethal consequences for many, many women. It is an egregious misinterpretation of the Second Amendment. The quality of legal reasoning reflected in the decision is embarrassing.

There are compelling reasons why government must disarm domestic violence abusers. An American woman is shot and killed by an intimate partner every 14 hours. More than one half of intimate partner homicides are committed with guns. Research has shown that abusers’ access to guns makes domestic violence victims risk of death five times higher.

In 2021, the last year figures are available, 7,454 offenders were convicted in Texas, Louisiana and Mississippi under the gun/domestic violence statute the Fifth Circuit invalidated. If the decision stands after all appeals are exhausted, it is a safe bet that women will needlessly die because of this court decision. Firearms have been established as the weapon of choice for domestic violence homicide. Female intimate partners are more likely to be murdered by a gun than by all other methods combined.

In protecting abusers’ rights to own guns, the Court misses the whole dynamic about how they are used to intimidate and cow victims into submission. Showing off guns and threats displaying them are part of the process of subjugation. There is no mention or appreciation of this dark side in the Rahimi court opinion.

The three judge panel who ruled unanimously in Rahimi demonstrated an out-of-touch quality that can ultimately only breed disrespect for the rule of law. I wish I had faith that the U.S. Supreme Court will rectify the situation.. We have been witnessing the triumph of right wing ideology over public safety, women’s health and common sense.