Do people subject to domestic violence orders have the right to be armed?

Zackey Rahimi, a Texas drug dealer with a history of gun violence, is “barely a model citizen,” a federal appeals court judge wrote in March, with quite an understatement. But the court overturned Mr Rahimi’s conviction under a federal law that criminalizes gun ownership for people subject to domestic violence, ruling that the law violated the Second Amendment.

Next week, the Supreme Court will consider whether to appeal that decision, which applied a past-based test to rule that the government was powerless to disarm Mr Rahimi under the domestic violence law. There is a good chance that the judges will agree to hear the case.

The case started in 2019, when Mr. Rahimi attacked his girlfriend and threatened to shoot her if she told anyone, resulting in a restraining order against her. The order suspended Mr. Rahimi’s gun license and prohibited him from owning firearms.

Mr. Rahimi blatantly defied the order, according to court records.

He threatened another woman with a gun, leading to charges of assault with a deadly weapon. He then opened fire five times in public in two months.

Angry about a social media post from someone he sold drugs to, for example, he shot an AR-15 rifle into his former client’s home. When a fast food restaurant declined a friend’s credit card, he fired several bullets into the air.

The shootings led to a search warrant of Mr. Rahimi’s home, uncovering weapons, and accusing him of violating federal law.

After a judge dismissed his challenge to the Second Amendment law, he pleaded guilty and was sentenced to more than six years in prison. The United States Court of Appeals for the Fifth Circuit initially affirmed his conviction in a short decisiondismissing the argument that the law violated the Second Amendment in a footnote.

But the objections reverse course after the Supreme Court issued a decision last June establishing a new test to decide whether gun control laws are constitutional, one focused on history.

Under that test, a unanimous panel of three Fifth Circuit judges ruled that the law prohibiting people subject to domestic violence warrants from owning firearms violated the Second Amendment because it lacked historical support.

Next week, on the day almost a year after the Supreme Court announced the new approach New York State Rifle & Pistol Association v. Bruen, the judges will meet to discuss whether to hear the Biden administration’s appeal. The court often hears appeals against decisions where federal laws are unconstitutional.

The case, United States v RahimiNo. 22-915, would give the court a chance to examine the scope of its new test, which requires the government to identify historical analogs to justify laws limiting Second Amendment rights.

In general, Judge Clarence Thomas wrote in his majority opinion in Bruen that the Second Amendment protects the rights of “an ordinary, law-abiding citizen.” And there is the Biden administration told the judges in the new case, “strong historical evidence in support of the general principle that the government may disarm dangerous persons.”

But the Fifth Circuit rejected a variety of old laws identified by the government as possible analogues, saying they were not sufficiently similar to those related to domestic violence. Many of them, Judge Cory T. Wilson wrote for the panel, “disarmed classes of people considered dangerous, especially those unwilling to take an oath of allegiance, slaves and Native Americans.” That was different, he wrote, from warrants to domestic violence, which judge on a case-by-case basis the dangerousness of a particular individual.

Administration lawyers questioned that distinction. “It would be bizarre,” they wrote, “if lawmakers could disarm dangerous individuals based on categorical presumptions, but not individual court findings after notice and a hearing.”

Judge Wilson, who was appointed by President Donald J. Trump, wrote that the administration’s insistence on being able to disarm those who break the law “allows no real restrictive principle.”

“Can speeders be deprived of their right to keep and bear arms?” he asked. “Political Nonconformists? People who don’t recycle or drive electrically?”

Judge Wilson admitted that the challenged law “embodies beneficial policy goals designed to protect vulnerable people in our society.” But he said the approach required by the Bruen decision did not allow courts to weigh the benefits of the law against its burdens. What was important, he wrote, citing that decision, was that “our ancestors would never have accepted” the domestic violence law.

Judge James C. Howho was also appointed by Mr. Trump, issued a concurring opinion saying there were better ways to protect victims of domestic violence.

“Those who perpetrate violence, including domestic violence,” he wrote, “should not simply be disarmed – they should be detained, prosecuted, convicted and imprisoned. And that is precisely why we have a criminal justice system – to punish criminals and from committing further crimes.”

But Judge Ho said domestic violence orders were products of the civil justice system and subject to abuse.

“Scientists and judges have expressed alarm that civil protection orders are too often misused as a tactical tool in divorce proceedings — and are issued without any real threat of danger,” he wrote. “That makes it difficult to justify” the law Mr. Rahimi challenged “as a measure to disarm dangerous individuals.”

In a brief request to the Supreme Court to deny reviewRahimi’s lawyers said domestic violence was not a new phenomenon. “The founders could have introduced a complete ban on firearms to combat violence between intimate partners,” their brief said. “They didn’t.”