CNN
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Marking a rare combination of resources, supporters of gun regulations and anti-domestic violence groups joined Thursday to urge the Supreme Court to reverse a federal appeals court opinion they say will make it easier for domestic abusers to obtain firearms.
The groups say the high court needs to step in now because lower courts are relying on one of the Supreme Court’s decisions on the Second Amendment from last term to reconsider thousands of firearm rules, including a federal law that bars an individual subject to a domestic violence restraining order from possessing a firearm.
The Biden administration is appealing the ruling, and 11 groups are throwing their weight behind the government’s request.
The so called “friend of the court” brief will likely draw special attention from the justices because firearms and domestic violence are so inextricably linked. It’s an unprecedented alliance of groups, and the lawyer who penned the brief – Michael Dreeben – is deeply respected on the court for his vast knowledge of criminal law, having worked for some 24 years as deputy solicitor general in charge of the government’s criminal docket in the Supreme Court.
Under normal circumstances, once the high court issues a landmark opinion, it rejects follow-on cases so that the issues can percolate in the lower courts.
This Second Amendment case, however, might be different.
Last year’s New York State Rifle & Pistol Association v. Bruen was the broadest expansion of gun rights in a decade and changed how lower courts must look at Second Amendment cases going forward.
In the 6-3 opinion, penned by Justice Clarence Thomas, the majority said that a gun law could only be justified if it is “consistent with this Nation’s historical tradition of firearm regulations.”
Citing Bruen, the conservative-leaning 5th US Circuit Court of Appeals invalidated the federal law meant to disarm abusers.
The court said that while the law “embodies salutary policy goals meant to protect vulnerable people in our society,” it does not pass legal muster under the Second Amendment after Bruen. The law, the court said, “falls outside the class of firearm regulations countenanced by the Second Amendment.”
In Thursday’s amicus brief, Dreeben argues that the lower court failed to “appreciate the significance of modern efforts to grapple with domestic violence.”
In 2019, nearly two-thirds of domestic homicides in the United States were committed with a gun, according to Everytown for Gun Safety. On average, 70 women are shot and killed by an intimate partner and up to 20% of violent deaths of intimate partners also involve deaths of children or other family members, the court brief says. In addition, as things stand, nearly half the states extended similar laws to reach dating partners, and 12 states include temporary restraining orders.
“Only in the past 50 years have governments begun to adopt measures to address the distinctive and heightened risks of intimate-partner violence,” Dreeben wrote.
Douglas Letter, the chief legal officer of Brady United, one of the groups behind the legal filing, calls the case an issue of life or death.
“Thousands of victims – particularly women and children – are at very serious risk because of the Fifth Circuit’s ruling in this case as are potential victims of future mass shootings, often perpetrated by domestic abusers,” he said.
Other groups on the filing include Giffords Law Center, Battered Women’s Justice Project, DC Coalition Against Domestic Violence, Everytown for Gun Safety and the National Family Violence Law Center at GW Law.
Zackey Rahimi, a drug dealer, was issued a restraining order in 2020 after a violent altercation with his girlfriend in Arlington, Texas. A court found that he had “committed family violence” and that it was likely to occur again. Six months later he tried to communicate with her again, approaching her house in the dark of night.
Beginning in December 2020 Rahimi took part in five shootings in Texas that culminated on January 7, 2021, when he fired shots in the air at a Whataburger restaurant after his friend’s credit card was declined.
When the police ultimately obtained a search warrant for his home, they found a rifle and a pistol and Rahimi admitted that he was subject to the protective order that had been entered in the civil proceeding.
A federal grand jury indicted him, and Rahimi moved to dismiss the indictment arguing that the law was unconstitutional. He lost his court effort, but then the Supreme Court issued its Second Amendment decision in Bruen.
After reviewing the decision, the 5th Circuit ruled in favor of Rahimi, saying that Bruen “fundamentally changed our analysis of laws that implicate the Second Amendment, rendering our prior precedent obsolete.”
“The government bears the burden of justifying its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulations,” the appeals court said.
It rejected the government’s historical analogues in an opinion that delved deeply into a historical summary that included a look at the English Militia Act of 1662, the reign of Charles I, the Glorious Revolution, as well as colonial law at the founding.
Concurring in the decision, appeals court Judge James Ho explained his thinking.
“Those who commit violence, including domestic violence, shouldn’t just be disarmed – they should be detained, prosecuted, convicted and incarcerated,” he wrote. Ho stressed that the “government can impose various restrictions on the rights of dangerous convicted felons, consistent with our Nation’s history and traditions—and that includes the right to keep and bear arms.”
But he said the law at issue in Rahimi disarms individuals based on civil protective orders, and not criminal proceedings. And, he said, “scholars and judges” have expressed alarm that civil protective orders are too often misused and “issued without any actual threat of danger.”
“We must protect citizens against domestic violence,” Ho wrote, “and we can do so without offending the Second Amendment framework set forth in Bruen.”
Solicitor General Elizabeth Prelogar blasted the opinion, calling it “profoundly mistaken” and asked the justices to review it and hear arguments next term. “More than a million acts of domestic violence occur in the United States every year and the presence of a firearm increases the chance that violence will escalate to homicide,” she said.
A public defender representing Rahimi is set to respond to the court next month, urging the justices to allow the lower court opinion to stand. Any amicus briefs siding with him are also not yet due.
