August 13, 2024
United States v. Rahimi, 602 U.S. ___, No. 22-915 (June 21, 2024)
Response by Professors Mary Anne Franks and Joan Meier
Geo. Wash. L. Rev. On the Docket (Oct. Term 2023)
Slip Opinion | SCOTUSblog
United States v. Rahimi: Resisting the “Suicide Pact” for Now
In 19491 and again in 1963,2 Supreme Court Justices cautioned against treating the Constitution as a “suicide pact.” The Fifth Circuit tossed this warning aside last year when it ruled that the Constitution forbids the federal government from disarming dangerous domestic abusers subject to civil protection orders.3 Fortunately, the Supreme Court reversed this decision in United States v. Rahimi,4 rejecting the view that firearms laws that did not exist in some form at the time the Second Amendment was ratified are necessarily prohibited by the Constitution. Had the Court affirmed the Fifth Circuit, it would have meant the end of virtually all modern firearms regulation—a deadly conclusion in a country where guns kill approximately 40,000 people each year5 and where gun violence has become the leading cause of death of children and teenagers.6 But while firearm fundamentalists may have lost this particular battle, the war on lifesaving gun regulations will continue to rage.7
Zackey Rahimi was extremely violent to his girlfriend. In one incident, Rahimi drew a gun after realizing his attack was being observed by a bystander. He fired the gun in the direction of the bystander and his girlfriend, who was attempting to flee with their child. This led to Rahimi being placed under a two-year protection order requiring him to stay away from both the mother and child. The order also suspended his gun license. Rahimi received notice but declined to contest the order.
Rahimi was prone to shooting his gun seemingly whenever he got mad, which was often, including at a drive-through restaurant which rejected his friend’s credit card, in road rage incidents, toward a drug buyer in his own home. He was also charged with aggravated assault of another woman, again involving use of the gun.
Rahimi’s profligate gun use is not unusual among domestic abusers: But while it is increasingly recognized that abused women’s chances of being killed increase five-fold if their abuser possesses a firearm,8 it is less widely understood that the home is also the most dangerous place for American children. As described in the DV LEAP & GW National Family Violence Law Center’s amicus brief, over 85% of firearm homicides of children 12 years and younger occur in the home.9 One study analyzing data from 2003-2013 found that 31% of children aged 12 or younger who were victims of a firearm-related homicide were killed in an intimate partner-related shooting.10
In addition to other family members, total strangers are also frequently murdered by known domestic abusers wielding firearms. For instance, the “DC sniper” John Muhammed shot several total strangers in a ploy to cover up his ultimate intended shooting of his true target, his ex-wife.11 More than 2/3 of mass shootings are committed by a man who was either murdering family members or had a history of domestic violence.12
It is therefore a good thing that federal law 18 U.S.C. § 922(g)(8) criminalizes possession of a firearm by a person subjected to certain kinds of domestic violence restraining orders. This “domestic violence gun ban” was part of the original 1994 Violence Against Women Act, responding logically to the extreme dangerousness of domestic abusers armed with firearms, and the high rates of domestic homicides by abusers with guns. The firearms prohibition applies only to protection orders that restrain individuals from abusing an intimate partner (defined as a current or former spouse or co-habitant),13 their child with that partner, or that partner’s child. To protect the rights of defendants in § 922(g)(8) prosecutions, the gun ban is triggered only after a defendant has a full and fair opportunity to contest the protection order in a court proceeding, and after a specific finding of dangerousness has been made by the court. Rahimi’s order met the requirements.
Although it had previously been upheld by multiple federal courts,14 after the Supreme Court issued Bruen in 2022,15 18 U.S.C. § 922(g)(8) was struck down by the Fifth Circuit. Bruen adopted a new rule that firearm regulations may be upheld under the Second Amendment only if they are found to be “analogous” to a regulation existing at or near the time of the Founding (1791) or when the Fourteenth Amendment was ratified (1868).16 Applying this newly stringent historical framework, the Fifth Circuit reversed Rahimi’s conviction, holding that the DV gun ban was unconstitutional on its face because it lacks a sufficiently analogous historical precedent. Particularly given Rahimi’s extraordinary dangerousness, this ruling provoked grave concern, representing, as it did, the worst possible implications of Bruen.
Thus, it was a relief to many that the Supreme Court’s Rahimi decision reversed the Fifth Circuit, holding that that court had used far too narrow a lens to determine the historical justification for the DV gun ban, requiring a gun restriction specifically for spouse abusers. The Court ruled that such a specific ancestor was not necessary; a broader history of restrictions on firearm possession by individuals and populations deemed dangerous was sufficient to protect 18 U.S.C. § 922(g)(8) from constitutional challenge.
But while this more flexible reading of history allowed the Court to avoid an outcome with deadly policy consequences, it also allowed the Court to pretend that it had not created the precedent that led directly to that outcome—the precedent that continues to invite broad challenges to a wide array of longstanding gun laws. Justice Thomas, who authored the Court’s decision in Bruen, maintained in his lone dissent that the Fifth Circuit had applied Bruen properly. And while Zackey Rahimi may have been too embarrassing a figure to serve as the poster boy of the Court’s brave new Second Amendment, the next challengers may present better.
The deeper problem is with the “history and tradition” approach to constitutional interpretation itself.17 That approach, as Justice Jackson trenchantly observed in her concurrence, “is not only limiting legislative solutions,” but is also “creating chaos.”18 If the Supreme Court cannot even agree among itself what the words of its recent decisions mean, what guidance can it provide to lower courts or the general public? Arbitrary readings of history and tradition are particularly ominous for the people who were not recognized as equal human beings when the Second Amendment was ratified, including women and children. If we want to ensure that the Constitution does not become a “suicide pact” for them, we cannot let its interpretation be dictated by the past.
Professor Meier is a Professor of Clinical Law and Director of the National Family Violence Law Center at the George Washington University Law School. Professor Meier has been a clinical law professor for 29 years at GW Law, where she founded three pioneering and nationally recognized interdisciplinary domestic violence clinical programs. She has published widely on domestic violence, custody, clinical teaching, criminal procedure, and various Supreme Court decisions.
Professor Franks is the Eugene L. and Barbara A. Bernard Professor in Intellectual Property, Technology, and Civil Rights Law at the George Washington University Law School. She is an internationally recognized expert on the intersection of civil rights, free speech, and technology. Her other areas of expertise include family law, criminal law, criminal procedure, First Amendment law, and Second Amendment law.
Recommended Citation
Joan Meier & Mary Anne Franks, United States v. Rahimi, Geo. Wash. L. Rev. On the Docket (Aug. 13, 2024), https://www.gwlr.org/united-states-v-rahimi-resisting-the-suicide-pact-for-now.
