The 5th Circuit Court of Appeals in downtown New Orleans, widely considered the most right-wing in the land, has sent some doozies up to the U.S. Supreme Court, to varying effect.
Conservative as it is, the high court often takes a measured approach to 5th Circuit rulings on everything from the Affordable Care Act's constitutionality to immigration enforcement. Regardless of the ultimate outcome, though, advocates for a wide range of culture war priorities can usually count on a friendly reception down on Camp Street.
So it was pretty interesting when the 5th Circuit found that an undeniably bad dude named Zackey Rahimi did not have a right to possess guns while under a domestic violence restraining order. And it was even more interesting when the court later reversed itself and sent Rahimi’s case up to the Supreme Court, which heard it last week.
Rather than a change of heart, though, the court’s unusual move reflects a shift in the legal landscape of gun rights — one that could, depending on how the Supremes rule, invalidate hard-won advances on domestic violence in places like Louisiana, which consistently ranks as one of the states where abuse victims are most often killed by their partners.
That guns and domestic violence are a deadly mix is widely recognized even by many opponents of gun restrictions. That’s why a committed band of advocates and state lawmakers from both parties has been able to pass strong legislation over the last decade to keep firearms out of the hands of those served with restraining orders, laws that could become moot depending on how the Supreme Court rules.
What changed between the 5th Circuit’s first ruling and its second was a 2022 Supreme Court decision on a case out of New York.
The Bruen decision, authored by Justice Clarence Thomas, essentially reinvented the standard for when individual gun rights can be limited, declaring for the first time that restrictions must be “consistent with the nation's historical tradition of firearm regulation.”
That presents an obvious challenge for domestic violence victims and advocates: At the time of the founders, domestic violence wasn’t even acknowledged as a problem. It was generally considered a “private matter,” noted Kim Sport, a New Orleans attorney and chair of United Against Domestic Violence; even if there were murder charges, the penalties suggested a certain blame-the-victim mentality that lingers today, she said.
More broadly, there is a history of keeping firearms out of the hands of those deemed “dangerous,” and that argument seemed to move at least some of the conservative justices at the Tuesday hearing, even if Thomas and Samuel Alito chafed at the idea that a civil protective order could trump a constitutional right.
Dangerous is certainly a word that applies to Rahimi.
In 2020, a Texas court granted his then-girlfriend a restraining order, which prohibited him from possessing firearms, after he dragged her into his car and shot at a witness. But he not only kept his guns, but went on a slow-motion rampage over the course of several months, threatening another woman, shooting at a constable’s car and even firing outside a burger joint after a friend’s credit card was declined.
He was sentenced to six months in prison under federal law for violating the restraining order's terms, and initially the 5th Circuit upheld the punishment. After Bruen, though, it revisited the case and reversed itself.
“Rahimi, while hardly a model citizen, is nonetheless part of the political community entitled to the Second Amendment’s guarantees, all other things equal,” wrote Judge Cory T. Wilson, an appointee of former President Donald Trump. (All things being equal hardly seems to cover the threat he poses, but, hey, 5th Circuit, you do you.)
Given the ruling, notes of skepticism from Justice Amy Coney Barrett and Chief Justice John Roberts were welcome. Discussing whether the somewhat ill-defined “dangerousness” standard would apply, Roberts said: "I mean, someone who's shooting, you know, at people — that's a good start."
I'll take that as a sign that the middle could well hold.
That’s what’s happened in Louisiana. Here, despite some pushback from gun rights absolutists, meaningful restrictions on domestic abusers were signed by both Republican Gov. Bobby Jindal and Democratic Gov. John Bel Edwards. Gov.-elect Jeff Landry, who as attorney general has regularly sought support on hot-button issues to the 5th Circuit, is also on board, Sport noted, and has sponsored billboards publicizing the fact that “Louisiana law keeps firearms out of the hands of domestic abusers.”
The Supreme Court willing, may it ever be so.