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Appeals Court Declares Gun Ban For Those With Domestic Violence Restraining Orders Unconstitutional

On Thursday, the 5th Circuit Court of Appeals struck down 18 U.S.C § 922(g)(8), which made it a federal crime for an individual subject to a domestic violence restraining order to possess firearms or ammunition. The Court rested its decision on the recently decided Supreme Court Case New York State Rifle & Pistol Association Inc. v. Bruen. Bruen, authored by Justice Clarence Thomas and decided in 2022, established a new standard for courts to employ when assessing statutes undergoing Second Amendment challenges. Thomas wrote for the 6-person majority, “when the Second Amendment's plain text covers an individual's conduct [here the right to bear arms], the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation's historical tradition of firearm regulation. Only then may a court conclude that the individual's conduct falls outside the Second Amendment's 'unqualified command’."

The case at hand involved Zackey Rahimi, whose ex-girlfriend obtained a restraining order against him in February of 2020 which restrained him from harassing, stalking, or threatening her or their joint child and expressly prohibited him from possessing firearms. Rahimi was then involved in five shootings between December 2020 and January 2021. According to the 5th Circuit, “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 his 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.” After law enforcement executed a warrant to search his home and found a rifle and a pistol Rahimi was indicted by a federal grand jury for violation of § 922(g)(8). Rahimi moved to dismiss his indictment for violation of his Second Amendments rights prior to the Bruen decision but was denied based on 5th Circuit precedent which upheld the constitutionality of § 922(g)(8). Rahimi appealed the denial, which was initially upheld, but after the Supreme Court’s decision in Bruen was released, the Court withdrew its decision and requested supplement briefing in light of Bruen.

The new decision, released on Thursday, was authored by Trump appointee, Judge Cory Wilson. The opinion started by discussing the impact of Bruen on Second Amendment precedent. The Court noted that Bruen “Expounded” upon the Supreme Court’s holding in the landmark case District of Columbia v. Heller and placed a burden on the Government to prove, that when a federal regulation limits conduct contemplated by the Second Amendment, the regulation is “consistent with the Nation’s historical tradition of firearm regulation.” The Court found that this test fundamentally changed the analysis of laws which involve the Second Amendment, and therefore upended the precedent which it previously cited to deny Rahimi’s motion to dismiss.

The Court then moved to applying the new analysis, a combination of guidance from Heller and Bruen. First, the Court determined that although Heller instructs that the Second Amendments applicability is restricted to only “law-abiding, responsible citizens,” this phrasing is only meant to exclude groups who have been historically stripped of Second Amendment rights. Specifically, the Court identifies those groups mentioned in the Heller opinion, felons and the mentally ill. Thus, the Court rejected the government’s argument that Rahimi was neither law-abiding nor responsible and therefore not among those citizens entitled to Second Amendment Protections. Next, the Court analyzed the historical examples of firearms regulations presented by the Government and rejected that any of them presented a “well-established and representative historical analogue” to § 922(g)(8). Thus, the Court found that § 922(g)(8) failed the Bruen test and “as a result, § 922(g)(8) falls outside the class of firearm regulations countenanced by the Second Amendment.”

The immediate impact of this decision is that § 922(g)(8) can no longer be enforced in Mississippi, Louisiana, and Texas, the states which the 5th Circuit encompasses. After the ruling the U.S. Justice Department issued a statement from Attorney General Merrick Garland stating it will seek further review of the 5th Circuit Court of Appeals decision. Thus, it is possible this case will make its way to the Supreme Court soon.

Read the 5th Circuit Court of Appeals decision here.


United States v. Rahimi, No. 21-11001 (5th Cir. Jun. 8, 2022).

N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022).

D.C. v. Heller, 554 U.S. 570 (2008).

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