SCOTUS Upholds Federal Law Banning Access to Firearms For Unconvicted People Under Domestic Violence Restraining Orders

Last updated on August 7th, 2024 at 04:28 pm

The U.S. Supreme Court, on Friday, upheld federal laws banning access to firearms for individuals subject to domestic violence restraining orders (DVROs) even if they have not been criminally convicted.

The case, United States v. Zackey Rahimi, centered around Rahimi’s contention that a court should not have been able to take his firearms away through a DVRO without first convicting him on a criminal charge. Rahimi’s legal team centered their arguments around his rights under the Second Amendment of the U.S. Constitution.

Rahimi was issued a restraining order depriving him of his firearms in February 2020 after his girlfriend alleged he had assaulted her and discharged a firearm during the altercation. Rahimi allegedly continued to possess firearms in defiance of this court order and faced additional assault allegations.

The Supreme Court ruled 8-1 that a court could strip someone of their firearms rights, even without a criminal conviction. Justice Clarence Thomas offered the lone dissenting view in this case.

Chief Justice John Roberts authored the majority opinion, with five separate concurring opinions finding the same conclusion through different legal logic. Justices Sonia Sotomayor authored one concurring opinion joined by Justice Elena Kagan, while Justices Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett, and Ketanji Brown Jackson authored the other concurring opinions.

Roberts concluded there is a historical precedent in English common law “barring people from misusing weapons to harm or menace others.”

Roberts also pointed to English and colonial-era surety laws, in which individuals suspected of posing a risk of future misconduct would be required to pay a bond to ensure they wouldn’t engage in such misconduct. In some cases, Roberts said colonial-era courts applied these surety laws to individuals who “go armed offensively,” making them pay a bond to ensure they do not misuse their weapons.

The chief justice also pointed to a common law offense known as affrays, which applies to individuals engaging in public fighting that disturbs the peace, and included individuals who went armed with the intent to intimidate people.

“Taken together, the surety and going armed laws confirm what common sense suggests,” Roberts wrote. “When an individual poses a clear threat of physical violence to another, the threatening
individual may be disarmed.”

Writing his dissent, Thomas argued primarily that the historical analogs Roberts selected were not sufficiently similar to the modern laws and court procedures for DRVOs. He noted the Supreme Court had previously held in New York State Rifle & Pistol Association, Inc. v. Bruen that surety laws merely “provide financial incentives for responsible arms carrying” and that those subjected to surety orders could still keep and carry their firearms if they paid the bond.

Thomas also argued common law affrays also only described an offense occurring within and impacting the broader public. He contended many historic post-founding affrays laws of the United States included an exception allowing covered individuals to still carry arms in public for their own self-defense.

“Affray laws did not impose a burden analogous to [the current federal law]. They regulated a niche subset of Second Amendment-protected activity. As explained, affray laws prohibited only carrying certain weapons (‘dangerous and unusual’) in a particular manner (‘terrifying the good people of the land’ without a need for self-defense) and in particular places (in public). Meanwhile, [the current federal law] prevents a covered person from carrying any firearm or ammunition, in any manner, in any place, at any time, and for any reason,” Thomas wrote.”

Thomas further noted the Supreme Court held in Bruen that affray laws do not impose a burden “analogous to the burden created by” an effective ban on public carry. He further argued affray were criminal statutes that penalized past behavior and required a conviction to be applied, whereas the current federal system regarding DRVOs is aimed at preventing a future behavior and do not require the same standard of prior criminal conviction.

“The Court recognizes that surety and affray laws on their own are not enough. So it takes pieces from each to stitch together an analogue for [the current DRVO laws],” Thomas continued.

President Joe Biden touted the decision as validation of laws meant to protect victims of domestic violence.

“As a result of today’s ruling, survivors of domestic violence and their families will still be able to count on critical protections, just as they have for the past three decades,” Biden said Friday.

Erich Pratt, the senior vice president of Gun Owners of America, argued that upholding the federal prohibitions on access to firearms for individuals subject to DRVOs who have not been criminally convicted raises the risks that people who have not actually committed or been found guilty of such offenses can still lose their access to firearms.

“Justice Thomas was the lone judge to apply the Second Amendment correctly in his dissent,” Pratt said in a Friday video statement.

ICYMI📣

The Supreme Court got it WRONG today in their decision on US vs. Rahimi.

This decision will undoubtedly harm people who have committed no crimes and as Justice Thomas said, “In the interest of ensuring the Government can regulate one subset of society, today’s decision… pic.twitter.com/fNjBVOdlAB

— Gun Owners of America (@GunOwners) June 21, 2024

Under federal law, a prohibited person—which in this case can mean someone subject to a DVRO—who is found in possession of a firearm or ammunition faces a felony conviction and faces up to 10 years in prison. A criminal conviction automatically triggers a permanent, life-long prohibition on possessing firearms and ammunition. In theory, a person who has been accused of domestic violence could be subject to a DVRO and, should they keep their firearms, become a felon and lose their firearms rights even if they were not convicted of the underlying domestic abuse allegation.