Should domestic abusers have gun rights?

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Editor's Note: If you or someone you know is experiencing domestic abuse, use a safe computer and contact help. Call the National Domestic Violence Hotline at 800.799.SAFE (7233), or visit https://www.thehotline.org. Find more information on the 'boyfriend loophole' from the Giffords Law Center here.

On Point's Paige Sutherland reports on a Supreme Court case that has the potential to grant firearms access to hundreds of thousands of domestic abusers who are currently prohibited.

MEGHNA CHAKRABARTI: I'm Meghna Chakrabarti. This is On Point.

On June 25, 2022, advocates against domestic violence won a decades-long fight when President Joe Biden announced that the so-called ‘boyfriend loophole’ had been closed.

PRESIDENT JOE BIDEN: While this Bill doesn’t do everything I want, it does include actions that I’ve long called for that are going to save lives.

CHAKRABARTI: The president there when he signed the Bipartisan Safer Communities Act. The act now prohibits convicted domestic violence abusers from owning or buying a gun if they dated the victim.

The prohibition used to apply only if the abuser was married, shared a home or had a child with the victim.

This is a change that advocates had been pushing for since 1996 — given that at least 600 women in America are shot and killed by an intimate partner every year, and half of the shooters had dated, but didn’t marry, their victims.

But there was little to celebrate for advocates. Because just two days earlier — on June 23, 2022 — the U.S. Supreme Court made a ruling that could dismantle many of our country’s firearms restrictions, including those meant to protect domestic violence victims.

And on this coming Tuesday, November 7th, the Supreme Court is set to hear another case that has the potential to grant firearms access to hundreds of thousands of domestic abusers who are currently prohibited.

For this special podcast extra, On Point’s Paige Sutherland is here to tell that story.

PAIGE SUTHERLAND: At the center of this case is Zackey Rahimi. He’s 23 years old and from Kennedale, Texas.

In April of 2017, Rahimi started dating Cintia Medina Garcia. They went out for about two and a half years and had a child together, who’s now 5 years old.

According to Garcia, verbal and physical abuse was a part of their relationship from the start. And it never stopped.

On January 16, 2020, Garcia petitioned for a protective order against Rahimi. In that petition she details the abuse she says she suffered, paragraph after paragraph.

Garcia refers to Rahimi as Zack. Her words are read here by a colleague:

“Zack’s violence towards me has sent me to the emergency room. Zack has broken my cell phone so that I could not seek help or call the police. Zack has taken my keys to prevent me from seeking help or calling the police. Zack has pulled a gun on me. Zack has fired a gun in my direction. Zack has threatened to kill me.”

SUTHERLAND: And then she goes on to say:

 “I need a protective order because I am afraid that Zack will kill me and my son.”

SUTHERLAND: The protective order was granted. Under federal law, it barred Rahimi from buying and possessing firearms. It also required him to turn in guns already in his possession. Something he never did.

NEWS CLIP: Suspect Zackey Rahimi, NIBIN, the National Integrated Ballistic Information Network, linked him to a string of shootings that occurred over a stretch of months.

SUTHERLAND: This string of shootings took place in and around Arlington, Texas between December 2020 and January 2021.

That’s almost a year after Garcia’s protective order was granted.

The shooting spree includes the time Rahimi allegedly sold drugs to someone and then fired multiple shots into their home. Another time, Rahimi got into a car accident, and then allegedly shot at the other driver. Then there was the time he allegedly fired multiple shots in the air after his friend’s credit card was declined at a Whataburger restaurant.

Given that most of these incidents were in public with witnesses present, police identified Rahimi pretty quickly.

On January 14, 2021, an Arlington Police Detective obtained a warrant to search Rahimi’s home. There, officers found a loaded pistol along with a loaded rifle. And — in the top drawer of Rahimi’s dresser — they found the domestic violence protective order, signed by Rahimi, stating that he was prohibited from having firearms.

Rahimi was arrested. And on September 23rd, he pleaded guilty to violating his firearms ban and was sentenced to 73 months in federal prison.

Shortly after sentencing, Rahimi’s lawyers appealed, arguing that the federal firearms ban Rahimi was subject to is unconstitutional.

Rahimi's lawyers were not the first to make such a claim. Most recently, in 2020, the 5th Circuit Court of Appeals heard a similar argument in U.S. v. McGinnis. In that case, the court ruled under the long-established two-part test for Second Amendment cases, which was created under the Supreme Court’s decision in D.C. vs. Heller back in 2008.

Kelly Roskam is the director of law and policy at the Johns Hopkins Center for Gun Violence Solutions, a research organization seeking to reduce gun violence. She explains how that two-part test has long worked.

ROSKAM: So first, the court asks, does the regulation on firearm possession and usage burden conduct protected by the Second Amendment?

I need a protective order because I am afraid that Zack will kill me and my son.

SUTHERLAND: The court then moves on to the second part of the test. Is this regulation in line with an important government interest?

ROSKAM: Think of it like a sliding scale of how important a government interest is and how closely the law is tailored to achieve that government interest. Strict scrutiny being extremely exacting requiring a close fit for an extremely important government interest and intermediate scrutiny, requiring a less close fit, but still for an important government objective.

Most cases after Heller applied intermediate scrutiny, this middle level of scrutiny and upheld the vast majority of gun violence prevention laws by finding that the law was sufficiently related to the compelling government interest of public safety.

SUTHERLAND: For both McGinnis and Rahimi, the court applied intermediate scrutiny. Stating quote “reducing domestic gun abuse is a compelling government interest.”

The court determined the firearm regulation passed the two-part test. So, it’s constitutional. Thus, Rahimi lost his appeal.

But something momentous happened that very same month. On June 23 last year, the grounds on which the courts have based their Second Amendment opinions on for decades shifted, in a big way.

NEWS CLIP: The Supreme Court here significantly expanding gun rights and really expanding the scope of the Second Amendment for the first time since 2008.

SUTHERLAND: The case referenced in that clip from CNN was New York State Rifle & Pistol Association Inc. v. Bruen in which the Supreme Court set a precedent that gun laws should be consistent with the nation’s historical tradition of firearm regulation. The two-part test was no more.

So, Rahimi went back to court.

This time Rahimi’s legal team only had to prove that the firearm ban for those with domestic protective orders against them was a restriction the founding fathers would not have seen as legitimate.

Here’s Rahimi’s lawyer James Matthew Wright during oral arguments in August last year.

JAMES MATTHEW WRIGHT: The founding generation was intimately familiar with the scourge of domestic violence. They never addressed that problem through any sort of firearms restriction. They did address the problem through other means, typically societal pressure, but also shaming punishments, etc. No disarmament, no bans. 

The founding generation was intimately familiar with the scourge of domestic violence. They never addressed that problem through any sort of firearms restriction.

SUTHERLAND: On February 2nd this year the 5th Circuit Court of Appeals ruled that because there was no historical tradition of firearm restrictions for domestic abusers, the federal firearms ban was unconstitutional. Here’s Kelly Roskam again.

ROSKAM: The court says at the time of the founding it was considered a private matter: domestic violence. It was not something that they considered a danger to public safety. Therefore, there is no national historical tradition of firearm regulation of persons subject to domestic violence protective orders. And therefore, it is unconstitutional.

APRIL ZEOLI: I think this absolutely places the ability to have a gun over domestic violence victims.

SUTHERLAND: That’s April Zeoli, an associate professor at the Institute for Firearm Injury and Prevention at the University of Michigan, where she focuses on domestic violence related firearm restrictions.

She says that the Fifth Circuit ruling has the potential to unravel decades of advocacy work for domestic abuse survivors.

ZEOLI: People who are victimized by their intimate partners rely on these firearm restrictions to help keep them safe. This is not abstract. This is not, you know, an esoteric legal question. This is people's lives. Literally, their lives, their level of fear, their ability to feel safe.

SUTHERLAND: Zeoli also points out, at the time of the founding, most of the victims of domestic violence who need such protections didn’t have a say on what laws did or didn’t get passed because they were women.

For now, the Fifth Circuit ruling only applies to Texas, Louisiana and Mississippi, where its jurisdiction lies. But in the coming days, the Supreme Court will hear this case. And if they uphold this ruling, anyone in the country with a domestic violence protective order against them could potentially own and buy a gun.

Rahimi, however, won't be able to exercise his 2nd Amendment right quite yet. He’s currently in jail awaiting his other state charges.

I reached out to the lawyers of both Cintia Medina Garcia and Zackey Rahimi, and they both declined to talk to me or connect me with their clients.

Immediately after the Fifth Circuit ruling advocates against domestic violence started ringing alarm bells. Their message: Without this firearm regulation, people will die.

Ruth Glenn is the President of Public Affairs at the National Coalition Against Domestic Violence. Here she is speaking at a Senate hearing back in March.

RUTH GLENN: Some abusive intimate partners will legally access firearms they were previously forbidden from possessing, and some will use those firearms to terrorize or even kill their victims or others.

Some abusive intimate partners will legally access firearms they were previously forbidden from possessing, and some will use those firearms to terrorize or even kill their victims or others.

SUTHERLAND: In a 49-page amicus brief filed in August - dozens of domestic violence advocacy organizations laid out their main arguments for why they believe this ruling should be overturned and the firearm ban reinstated nationwide.

One, those with protective orders against them are dangerous and shouldn’t be able to have guns. According to a 2003 study by the American Journal of Public Health, when a male domestic abuser has access to a gun there is a five times greater chance their female partner will be killed.

And Kelly Roskam of Johns Hopkins says, contrary to the Fifth Circuit’s ruling, this is not just a private matter, it’s also a public safety issue. And she says that’s something the founding fathers would have paid attention to.

ROSKAM: So my colleague at the Center for Gun Violence Solutions, Lisa Geller, found that 68% of mass shooters have a history of domestic violence or killed an intimate partner in the mass shooting. So this is not something that only happens within the privacy of private homes. This is something that affects all of us directly.

68% of mass shooters have a history of domestic violence or killed an intimate partner in the mass shooting.

SUTHERLAND: And ultimately, advocates say, this firearm ban works. Here’s Professor Zeoli again.

ZEOLI: studies have found that these laws are associated with reductions in intimate partner homicide consistently. You know, multiple different studies done in multiple different ways have found these results. And that's why I'm comfortable saying it looks like they work. It's not just one study, you know, it's many at this point.

SUTHERLAND: According to federal data, since 1998 more than 76,000 gun sales were denied to domestic abusers after they failed the background-check system because of a restraining order. In 2021 alone, 3,800 gun sales were denied.

But advocates could have an uphill climb in convincing the conservative leaning Supreme Court that such domestic violence protections are compatible with the Second Amendment under the new Bruen test.

In his written opinion in the Rahimi case, Fifth Circuit judge Cory Wilson writes that the government’s reasoning for taking away a domestic abuser’s right to buy and own a gun would be like justifying taking that right away from speeders, political nonconformists, people who don’t recycle or people who don't drive an electric car.

Another hurdle advocates say they need to counter is an argument that domestic violence protective orders are too consequential to be decided in civil court.

As judge Cory Wilson wrote in his ruling, the resulting prohibition disarms people who have quote “merely been civilly adjudicated.”

Attorney John Davis echoed this point in an amicus brief on behalf of the Center for Prosecutor Integrity. That’s a nonprofit focused on improving due process. He told us that because civil proceedings have a lower bar and move more quickly, they can potentially prejudice criminal proceedings.

JOHN DAVIS: We are not at all sympathetic to the accusations made against Mr. Rahimi, but in fact, none of them were proven. And it's quite common for those accusations to get out as gossip, just to try to prejudice a court in advance that he's a bad person. Therefore, he does not deserve due process. And we don't have a civilization if we follow that.

SUTHERLAND: Davis points out that besides losing one’s Second Amendment right, once a protection order is granted that person may lose access to their home, their children, incur lawyer fees as well as reputational harm before the accusations are fully vetted.

DAVIS: And one of the difficulties is the political perception that we don't need the Constitution where we're addressing a worthwhile social problem like domestic violence.

It's not just the Second Amendment rights, this just happens to be the right we're addressing in this case. It applies to many, many other First, Second Amendment rights, Sixth Amendment rights, Fifth, Fourth Amendment rights because this involves seizure of a person's property, the whole panoply of the Constitution and the Bill of Rights was designed to prevent the easy forfeit of all of those rights based upon a very lax proceeding such as a restraining order proceeding. 

SUTHERLAND: That’s why Davis argues that if domestic abusers are to be disarmed, it should be through the criminal justice system.

But advocates like Professor April Zeoli say that system does not move quickly enough to protect potential victims.

ZEOLI: If I am in danger, I call the police. And then I have to wait to see what happens. Were there charges made? And if charges are made when is there going to be a trial or is there a guilty plea and will there be a verdict of guilty. And all of that if you get through the entire process, through to, you know, a guilty verdict that takes months and months and sometimes longer than that. So this restraining order is a flexible and quick tool to use to increase your safety right now.

SUTHERLAND: Professor Zeoli also adds that although protective orders are granted through civil proceedings, there still is due process.

ZEOLI: Many people think that a restraining order is an incredibly easy thing to get. All you really have to do is fill out your name and the name of the person you want it against, and voila, you have a restraining order. It is, in fact, not that easy. In fact, in Michigan, you know where I am. Just about half of restraining order petitions are denied. So these are not being rubber stamped. A judge does evaluate them.

SUTHERLAND: Judge Cory Wilson writes in his opinion that the ban quote “embodies salutary policy goals meant to protect vulnerable people in our society,” but that it does not outweigh the burden it puts on one’s Second Amendment rights.

With the Supreme Court’s conservative tilt and its recent ruling in Bruen, they may reach that same conclusion. And given Rahimi’s lengthy police record, legal experts ask: If the firearm ban can’t be upheld for him, who could it be upheld for? For On Point, I’m Paige Sutherland.