A federal law that prohibits people subject to domestic violence restraining orders from possessing firearms is unconstitutional, a conservative-leaning appeals court ruled Thursday.
The ruling is the latest significant decision dismantling a gun restriction in the wake of the Supreme Court’s expansion of Second Amendment rights last year in the New York State Rifle & Pistol Association, Inc. v. Bruen decision.
The 5th US Circuit Court of Appeals said that the federal law targeting those believed to pose a domestic violence threat could not stand under the Bruen test, which requires that gun laws have a historical analogy to the firearm regulations in place at the time of the Constitution’s framing.
“Through that lens, we conclude that (the law’s) ban on possession of firearms is an ‘outlier’ that our ancestors would never have accepted,” the 5th Circuit said.
The Justice Department signaled Thursday night that it plans to appeal the ruling. Attorney General Merrick Garland said in a statement that Congress had determined the statute “nearly 30 years ago.”
“Whether analyzed through the lens of Supreme Court precedent, or of the text, history, and tradition of the Second Amendment, that statute is constitutional. Accordingly, the Department will seek further review of the Fifth Circuit’s contrary decision,” he said.
The Justice Department did not specify its next step in seeking review of the ruling, which could include asking the 5th US Circuit Court of Appeals for an en banc rehearing by all the judges on the court, or asking the US Supreme Court to take up an appeal.
The court’s opinion was written by Judge Cory Todd Wilson, who was appointed by former President Donald Trump. He was joined by Reagan-appointee Judge Edith Jones and Judge James Ho, another Trump appointee who also wrote a concurrence.
The 5th Circuit panel was not persuaded by the historical parallels put forward by the US Justice Department, which was defending the conviction of a person who possessed a firearm while under a domestic violence restraining order that had been imposed after he was accused of assaulting his ex-girlfriend. The Justice Department argued that the domestic violence law was analogous to 17th-and 18th century regulations that disarmed “dangerous” persons.
“The purpose of these ‘dangerousness’ laws was the preservation of political and social order, not the protection of an identified person from the specific threat posed by another,” the 5th Circuit opinion read. “Therefore, laws disarming ‘dangerous’ classes of people are not ‘relevantly similar’” to “serve as historical analogues.”
A spokesperson for the Justice Department did not immediately respond to a CNN inquiry. If the 5th Circuit’s ruling is appealed, it could set up another showdown over gun rights at the Supreme Court.
Steve Vladeck, a CNN Supreme Court analyst and professor at the University of Texas School of Law, said clarity from the court is necessary.
“One of two things is true: Either this kind of blind, rigid, context-free, and common-sense-defying assessment of history is exactly what the Supreme Court intended in its landmark ruling last June in Bruen, or it isn’t,” Vladeck said.
“Either way, it’s incumbent upon the justices in the Bruen majority to clarify which one they meant – and to either endorse or reject the rather terrifying idea that individuals under an active domestic violence-related restraining order are nevertheless constitutionally entitled to possess firearms,” he added.
The defendant challenging his conviction, Zackey Rahimi, had lost in an earlier round before the 5th Circuit, before the Supreme Court issued its Bruen ruling last year. The previous 5th Circuit opinion was withdrawn after the Bruen decision was handed down, and the appeals court did another round of briefing directed at the new test.
This story has been updated with additional developments.