Judge Wilson, in his opinion for the Fifth Circuit, said the prohibition on gun ownership by a person under a court-ordered restraining order for domestic violence failed “the historical tradition” test crafted by Justice Thomas. While there were laws at the time of the country’s founding that disarmed people who were deemed “disloyal” or “unacceptable,” Judge Wilson asserted that the purpose of those laws was to safeguard the “political and social order” rather than to protect individuals from violence. Consequently, he said, the old laws were not sufficiently “relevantly similar” to the modern law, known as Section 922(g) (8) of the U.S. code, to meet the Supreme Court’s history test.
The defendant in this case, Zackey Rahimi, was under a restraining order after he allegedly assaulted and threatened to shoot his ex-girlfriend, the mother of his child, when he went on a shooting spree, firing a weapon on five different occasions around Arlington, Texas. He pleaded guilty to violating Section 922(g) (8) while at the same time challenging the law’s constitutionality.
Mr. Rahimi, “while hardly a model citizen, is nonetheless among ‘the people’ entitled to the Second Amendment’s guarantees,” Judge Wilson wrote. Noting that a court-ordered restraining order is civil rather than criminal in nature, Judge Wilson asked rhetorically whether, if Mr. Rahimi’s civil offense was enough to disqualify him from owning a gun, as the law required, a similar disqualification might apply to those who violate a speed limit or fail to recycle.
Clearly, the question now for the Supreme Court is not only the validity of one statute but how the Bruen decision’s newly minted “historical tradition” requirement will apply to any and all gun regulations. The Fifth Circuit offered a lazy and cherry-picked history that “missed the forest for the trees,” Solicitor General Elizabeth Prelogar wrote in the government’s Supreme Court petition.
While it was clear that “dangerous individuals could be disarmed” at the time of the Constitution’s framing, she wrote, the Fifth Circuit treated “even minor and immaterial distinctions between historical laws and their modern counterparts as a sufficient reason to find modern laws unconstitutional.” Under such an analysis, she argued, “few modern statutes would survive judicial review.” (While the Supreme Court is not obliged to hear the government’s appeal, United States v. Rahimi, the court almost never declines to review a decision that has invalidated a federal statute.)