End Abuse Statement on U.S. v. Rahimi

Following the February 2 decision in United States v. Rahimi, End Abuse condemns the ruling issued by the U.S. Court of Appeals for the 5th Circuit, which deemed federal law prohibiting individuals from possessing a firearm while under a domestic violence restraining order to be unconstitutional. Due to this ruling, federal prosecutors in Texas, Mississippi, and Louisiana will no longer be able to prosecute harm doers for firearm possession while subject to domestic violence protective orders, a change from the previous 30 years of federal law prohibiting firearm possession under these conditions. 

“This decision, said End Abuse Executive Director Monique Minkens, “fails to take seriously the elevated risk of death that survivors face when harm doers have access to firearms and the link between mass shootings and domestic violence. It sets precedent that could one day impact survivors nationwide, including here in Wisconsin. This decision, in short, will lead to even more people – especially women and children – dying at the hands of their abusers.” 

While the decision strikes down federal law prohibiting persons subject to civil domestic violence protective orders access to firearms, it does not strike down federal law prohibiting access to firearms from persons convicted of domestic violence. Any state laws prohibiting access to firearms from persons subject to domestic violence protective orders remain in place. End Abuse assures Wisconsin survivors that domestic violence restraining orders (RO’s) in Wisconsin are not impacted; WI domestic abuse ROs automatically include firearm prohibitions for those against whom the RO is issued. 

However, domestic violence advocates nationwide have outcried the danger of this decision, citing the data-backed relationship between firearms and domestic violence. According to the American Journal of Public Health, a woman is five times more likely to be murdered when her abuser has access to a gun. 

“We know when domestic violence and firearms combine, lives are lost,” said Minkens. “In Wisconsin, 80 people lost their lives to domestic violence in 2021, and over two-thirds (67%) of those deaths were by firearm. Since 2005, firearms killed more people in Wisconsin domestic violence homicides than all other methods combined. If we ignore these realities, we lose lives. End Abuse supports Attorney General Garland’s decision to pursue further review of this dangerous decision.” 

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Learn More & FAQ: U.S. v. Rahimi

What facts led up to the case? 

• Rahimi was under a civil protective order from a Texas court after assaulting his ex-girlfriend. The protective order restrained him from harassing, stalking, or threatening his ex-girlfriend and expressly prohibited Rahimi from possessing firearms. 
• After the protective order was entered, Rahimi was involved in several shootings. He was then indicted and convicted under 18 USC § 922(g)(8), a federal statute that makes it unlawful for a person under a civil protective order based on domestic violence to possess firearms. 
• Rahimi brought a case appealing his conviction, arguing that the statute was unconstitutional.  

What was the Fifth Circuit deciding? What did the Fifth Circuit decide? 

• The Fifth Circuit answered the question: Is 18 USC § 922(g)(8) constitutional under the Second Amendment of the US Constitution? They answered that the statute is unconstitutional. 

Who does this decision affect? 

• The law in question here was a federal law that prevents those under domestic abuse civil protective orders from possessing firearms. Now, in Texas, Mississippi, and Louisiana, federal prosecution for those possessing firearms in violation of a civil protective order is precluded. 
• The case did not address any state restraining order statutes that prohibit firearm possession. 
  • For example, the Mayor of Arlington, Texas has stated that police will continue to enforce firearm prohibitions under Texas restraining orders. 
• A Circuit Court’s decisions of federal law are binding on its District Courts. 
  • This means that now the District Courts in the Fifth Circuit will be bound by this decision. The Fifth Circuit consists of Texas, Mississippi, and Louisiana.  
• Circuit Court decisions are not binding on other Circuits. For example, this Fifth Circuit decision will not be binding on the Seventh Circuit, where Wisconsin is located.  

How was this decision made? Is it consistent with precedent? 

• In June of 2022, the U.S. Supreme Court issued its decision in New York State Rifle & Pistol Association, Inc. v. Bruen. 
• Bruen introduced a new two-step analysis for whether laws are constitutional under the Second Amendment: 
  • (1) Courts must determine whether the Second Amendment’s plain text covers an individual’s conduct, i.e., whether the conduct at hand – such as the possession of firearms – is covered under the Second Amendment. 
  • (2) If the individual’s conduct is covered under the Second Amendment, the government must show that its regulation of the person’s conduct (e.g., possession of firearms) is “consistent with the Nation’s historical tradition of firearm regulation.” Bruen at 2130. 
• The Fifth Circuit used the Supreme Court’s framework from the Bruen decision to analyze whether the federal statute, 18 USC § 922(g)(8), is constitutional and held that it is not. 

What are possible ramifications of this decision? Will Wisconsin respondents under domestic abuse restraining orders no longer be required to surrender their firearms?  

• This case does NOT have any direct impact on Wisconsin or Wisconsin’s domestic abuse restraining order firearm surrender. Respondents will still have to surrender firearms if a domestic abuse injunction is issued, and they will still be in violation of Wisconsin law if they do possess firearms while under a domestic abuse restraining order. 
  • The case also does not affect the firearm surrenders that may be ordered with other types of injunctions (e.g., child abuse, harassment, individual at risk). 
• Even though the case is not binding on other circuits, a Circuit Court decision may be considered persuasive authority for other Circuit Courts and their District Courts (such as the Seventh Circuit Court of Appeals and District Courts of the Seventh Circuit) and for state courts. 

Will the case go to the Supreme Court? 

• The Biden Administration has indicated they will seek review of the decision – they have two options: 
  • (1) Seek a rehearing from the full Fifth Circuit Court of Appeals; or 
  • (2) Appeal to the Supreme Court of the United States, and the Supreme Court has discretion whether to take the case.  

How can advocates in Wisconsin help? 

• You may want to familiarize yourself with Wisconsin’s legislation surrounding firearms: https://everytownresearch.org/rankings/state/wisconsin/. 
• Ensure that survivors understand that Wisconsin law still requires a firearm surrender for those under a domestic abuse restraining order, and possession of firearms while under a domestic abuse restraining order is still a violation of Wisconsin law. 

Where can I find more information about the case? 

• End Abuse’s statement – this statement also contains these FAQs 
• NNEDV’s statement 
• MSNBC’s Legal Blog 
• U.S. v. Rahimi (Fifth Circuit) 
• New York State Rifle and Pistol Assoc. v. Bruen (Supreme Court)