2nd Amendment Allows Disarming Abusers, Feds Tell Justices

By Lilyanna D'Amato | August 15, 2023, 4:43 PM EDT ·

The Fifth Circuit's decision to strike down a law forbidding domestic abusers from owning guns was "profoundly mistaken" and "endangers victims of domestic violence, their families, police officers, and the public," the federal government has told the U.S. Supreme Court.

In a Monday brief urging the high court to overturn the circuit decision, Solicitor General Elizabeth Prelogar and acting Assistant Attorney General Nicole Argentieri argued that the federal government has "long disarmed individuals whom they have found to be dangerous, irresponsible, or otherwise unfit to possess arms," citing the Continental Congress' adoption of laws disarming loyalists during the Revolutionary War and states' decision to disarm minors, intoxicated persons and vagrants in the 19th century.

Individuals subject to domestic-violence-related restraining orders "fall squarely within the category of irresponsible individuals whom the Second Amendment has always allowed Congress to disarm," the brief states.

But the government's brief comes a year after the Supreme Court's landmark decision in New York State Rifle & Pistol Association v. Bruen , in which justices by a 6-3 vote ruled that the government must prove a gun restriction is rooted in the historical record dating back to the 1791 ratification of the Second Amendment.

In the case before the court, the Fifth Circuit withdrew its own decision in light of Bruen, ruling in February the Second Amendment did not allow the government to disarm Zackey Rahimi, a Texas man who was bound by a restraining order for knocking his girlfriend to the ground during a fight.

Although Rahimi was "hardly a model citizen," the Fifth Circuit panel ruled, being subject to a restraining order did not invalidate his Second Amendment rights.

In rebuttal, the federal government argued that while the Second Amendment protects "an individual right to keep and bear arms, that right is not unlimited."

Quoting former New Jersey Congressman Robert Torricelli, the brief argued that "if you are not responsible enough to keep from doing harm to your spouse or your children, then society does not deem you responsible enough to own a gun."

Citing the Supreme Court's 2008 Heller decision, itself a drastic broadening of gun ownership rights, the government further contended that "the Second Amendment allows Congress to disarm persons who are not law-abiding, responsible citizens."

Those with restraining orders "pose an obvious danger to their intimate partners because guns often cause domestic violence to escalate to homicide and because abusers often use guns to threaten and injure their victims," the brief states. "Armed abusers additionally endanger people beyond their partners — such as children, bystanders, and police officers."

The "nation's history and tradition of firearms regulation give Congress and the states ample room to protect the public—including by disarming those who are not law-abiding, responsible citizens," Prelogar wrote, contending that "the Fifth Circuit could conclude otherwise only by transforming the analysis of the Second Amendment's original meaning into the very sort of 'regulatory straitjacket' the Court disapproved in Bruen."

None of the parties responded to requests for comment Tuesday.

Rahimi is represented by James Matthew Wright of the Office of the Federal Public Defender.

The government is represented by Elizabeth Prelogar of the U.S. Department of Justice.

The case is U.S. v. Rahimi, case number 22-915, before the Supreme Court of the United States.

--Editing by Adam LoBelia.

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