Is it now legal for people with domestic violence restraining orders to own firearms?

AUSTIN (KXAN) -- A federal appeals court knocked down Thursday a federal law that bars people with domestic violence restraining orders from owning firearms. The 5th U.S. Circuit Court of Appeals said that the ban on weapons in this context “is an outlier that our ancestors would have never accepted,” the court wrote. 

Texas police found a rifle and a pistol at the home of a man who was suspected to have participated in a series of shootings between Dec. 2020 to Jan. 2021. At his home, police found a rifle and handgun, according to court documents. 

The man, Zackey Rahimi, had a domestic violence restraining order. Rahimi also had three pending state charges against him, one for physically assaulting his girlfriend with a firearm and another charge of aggravated assault with a deadly weapon on a different woman, according to court documents. Police arrested Rahimi for having the weapons in violation of federal law, and a federal grand jury indicted him. 

The 5th Circuit Court said Thursday that their decision is not about whether people with domestic violence restraining orders not being allowed to own firearms is a sound policy choice, but whether it is constitutional under the Second Amendment of the United States Constitution. 

Last year, The U.S. Supreme Court issued a ruling in the case known as New York State Rifle & Pistol Association v. Bruen which expanded Americans’ right to carry firearms in public for self-defense. 

“The basic argument is that if it was not illegal in 1791, then it can't be made illegal today. It's a notion that we are bound by tradition… the original understandings of 1791,” said Sanford Levinson, a government professor at the University of Texas at Austin.

He said that the law in 1791 was not concerned with domestic violence and that the ruling on Thursday is an extension of the Supreme Court decision last year. 

“Domestic violence was simply not on the radar screen in 1791. So one way of reading this decision of the Supreme Court is that if it is not on the radar screen in 1791, then it doesn't matter if it's on our radar screen today,” he said. 

Levinson said it is likely that the U.S. Supreme court will take up an appeal on this decision at some point. 

“This throws the gauntlet down in front of the U.S. Supreme Court,” he said. “Are there really five votes for the proposition that in 2023, it is illegal for the United States to say that if there is good reason to believe that if you have engaged in domestic violence, you can't have access to a gun?”

“Your guess is as good as mine.” 

Levinson said the decision to consider what our ancestors would think about modern laws is a cause for concern. 

“Our ancestors did not care about domestic violence. Most of our ancestors did not care about human slavery. Most of our ancestors had all sorts of beliefs that we have diverged from. So to say that in 2023 we are chained by these views of our ancestors is crazy.”

Further, this line of logic could be extended to laws on subjects not related to firearms.

The 13th Amendment abolished slavery, so the U.S. Supreme court has to agree that slavery is no longer possible under the amendment to the constitution, he said. 

“On the other hand, the reason that restaurants no longer can put up ‘We Serve Whites Only’ at their entrance is because of a federal statute called the Civil Rights Bill of 1964.”

“Why shouldn't these traditionalists on the Supreme Court say, ‘Well, you know, Congress in 1964, thought that something really should be done about racial discrimination. And, you know, most people agreed, but our ancestors did not see anything wrong with racial discrimination. And until we amend the Constitution to say that restaurant owners lose their traditional property right, to say who is welcomed and who is not, then they have a constitutional right to continue discriminating. And the Civil Rights Bill of 1964 is unconstitutional.’,” he said. 

“Now, that sounds crazy. But frankly, so does this Supreme Court decision last year about guns in New York,” Levinson said.