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Can alleged domestic abusers keep their guns? The Supreme Court may decide the answer

An Arlington case before the Supreme Court, United States v. Rahimi, could determine if it’s legal to ban domestic abusers under protective orders from have guns.

5th Circuit
Jonathan Bachman/AP

Federal and Texas laws prohibit people accused of domestic abuse from having firearms when they're under a protective order. But a Supreme Court case that started in North Texas could change that.

The Supreme Court is scheduled to hear oral arguments in United States v. Rahimi on Tuesday. The case, which originated in Arlington, focuses on a section of the Violence Against Women Act that makes it a federal felony to own or possess firearms while someone is subject to a domestic violence protective order. Texas has a similar state law that bars anyone who isn't a licensed peace officer from possessing firearms while under a domestic violence protective order.

The Fifth Circuit Court of Appeals ruled last March that the domestic violence statute violated the Second Amendment rights of the defendant, Zackey Rahimi. The court based its decision on the Supreme Court's ruling in another gun rights case, New York State Rifle and Pistol Association v. Bruen.

Since then, that law hasn't been enforceable in Texas, Louisiana or Mississippi — the states the Fifth Circuit covers. And Texas' state law could also be overturned, using similar arguments.

Zackey Rahimi

Rahimi, an alleged drug dealer, was accused of assaulting his girlfriend in December 2019. He threatened to shoot her if she reported the attack, according to a petition by the U.S. Department of Justice.

A civil court granted Rahimi's girlfriend a domestic violence protective order against him in February 2020. The order, which lasts for two years, bars him from attacking or contacting his girlfriend while it's in effect. He also was told that having firearms while the protective order is in effect may be a federal felony. He signed a document acknowledging he received a copy of the protective order in open court at the end of the hearing.

But Texas has no statewide firearm transfer program to collect and store firearms while protective orders are in effect. That means it's not uncommon for abusers to have guns when they're under a protective order.

Mikisha Hooper from the Texas Council on Family Violence told KERA in February that can have dangerous consequences.

"Domestic abusers with access to firearms are also a threat to their families, their children, to anyone helping a survivor, and to the general public and law enforcement," Hooper said.

The few existing firearm transfer programs are tied to district courts. But judges in Texas are elected. There have been instances where a judge has lost re-election, and the program dwindles under the new judge.

That's what happened in the district court where Roberto Cañas was a judge. Cañas was on the bench from 2007 to 2018 in Dallas County.

Cañas' program started in 2014 and had plans to expand it, but he lost his reelection bid in 2018. He said the county does still follow the program's procedures, but things have slowed down.

"The program was very dependent on my keeping it up," Cañas said. "And so when I left, obviously, it diminished."

Police say Rahimi was involved in five shootings in the Arlington area in December 2020 and in January 2021 while his girlfriend's protective order was in effect. That includes an incident where he allegedly shot into the air after his friend's credit card was declined at a Whataburger.

Arlington Police got a warrant to search Rahimi's home. They found firearms — and a copy of the protective order. He was arrested October 2021.

Historic Framework

Rahimi later was indicted by a federal grand jury in Tarrant County. He faced multiple charges, including three counts of assault with a deadly weapon and having a firearm while subject to a protective order.

Rahimi's lawyers tried to argue during the trial that the domestic violence gun law wasn't constitutional — but the district court dismissed that motion. After that, Rahimi pleaded guilty. His attorneys renewed the constitutional challenge during his appeal.

The Fifth Circuit Court of Appeals affirmed the lower court's ruling at first. But it withdrew that decision after the Supreme Court released its ruling in the Bruen case in June 2022. Then the appeals court released its new decision where it sided with Rahimi.

Judge Cory T. Wilson wrote the Fifth Circuit's opinion in the Rahimi case. President Donald Trump appointed him in 2020. Wilson argued that under the Supreme Court's ruling in Bruen, governments have to justify modern gun regulations with a historic firearm law from when the country was founded.

Eric Ruben, an assistant professor at Southern Methodist University's Dedman School of Law, said courts are having to look back centuries to find legal precedent.

"The modern-day court — addressing a modern-day law, addressing modern-day problems — has to find a historical analog from the late 1700s or maybe into the 1800s before it can uphold the modern law," Ruben said.

Ruben testified at a Senate committee hearing after Bruen about gun safety. He said courts are bringing in historians to help interpret gun laws.

Wilson said that there wasn't a law from the time period when the U.S. Constitution was written that was similar enough to justify the modern law. But The Department of Justice disagreed. It filed a petition with the Supreme Court and asked it to review the case and overturn the Fifth Circuit's ruling. The DOJ argued that the Fifth Circuit's interpretation of Bruen was incorrect.

"Governments have long disarmed individuals who pose a threat to the safety of others," the petition said.

The DOJ pointed to other appeals courts in the country that upheld the domestic violence law before the Bruen ruling using historic statutes that disarmed dangerous people. It also said that if every court followed the Fifth Circuit's reasoning, few modern gun regulations would stand.

Several advocacy groups that work with survivors of domestic violence filed letters of support in favor of the Department of Justice's petition. The Texas Council on Family Violence said the presence of a firearm in a domestic violence situations increases the risk of homicide by 500%. The number of women in Texas killed by a male partner with a gun has almost doubled the past decade, according to a recent report from the Texas Council on Family Violence.

Kathryn Jacob, the president and CEO of SafeHaven, the family violence center for Tarrant County, told KERA in February she expects the impact of the Rahimi case will be deadly.

"At least we had the legal system behind us. Now they don’t even have that," Jacob said.

Got a tip? Email Caroline Love at clove@kera.org. Caroline Love is a Report For Americacorps member for KERA News. KERA News is made possible through the generosity of our members. If you find this reporting valuable, consider making a tax-deductible gifttoday. Thank you.

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