Biden DOJ Asks Supreme Court to Fast-Track Case That Could Reinstate Federal Gun Ban

The U.S. Department of Justice (DOJ) is asking the Supreme Court to overturn an appeals court ruling that struck down a federal law preventing people under domestic violence-related restraining orders from having guns.

The Biden administration asked in its new petition (pdf) for the high court to hear the case on a “highly expedited schedule” because of the “significant disruptive consequences” of the lower court’s ruling. The petition was reportedly filed with the court on March 17 but had not been docketed as of press time.

The case comes as courts nationwide are playing catchup regarding the Supreme Court’s landmark June 2022 ruling in New York State Rifle and Pistol Association v. Bruen that held firearms restrictions must be deeply rooted in American history if they are to survive constitutional scrutiny.

Senate Judiciary Committee chairman Dick Durbin (D-Ill.) said on March 15 that the Bruen ruling offers little guidance to lower courts on interpreting the decision, as Courthouse News Service reported.

“The gun lobby saw Bruen as a landmark win, but it is a significant challenge for police, law enforcement, and the population of America when it comes to public safety,” Durbin said.

The case involves Zackey Rahimi of Texas, who pled guilty to violating a 1994 federal law –Section 922(g)(8) of Title 18 of the U.S. Code— that prohibits a person who is subject to a domestic-violence restraining order from possessing a firearm. Rahimi was involved in five shooting incidents after the restraining order was entered against him in February 2020.

But when the U.S. Court of Appeals for the 5th Circuit took up Rahimi’s case earlier this year, it overturned the law, finding it was no longer constitutional according to the principles laid down in Bruen.

The government failed “to demonstrate that § 922(g)(8)’s restriction of the Second Amendment right fits within our Nation’s historical tradition of firearm regulation,” the panel stated. The ban on the possession of firearms by someone under a domestic violence-related restraining order “is an outlier that our ancestors would never have accepted.”

U.S. Attorney General Merrick Garland said last month the DOJ would appeal the ruling but did not provide a timeline for doing so.

“Nearly 30 years ago, Congress determined that a person who is subject to a court order that restrains him or her from threatening an intimate partner or child cannot lawfully possess a firearm,” Garland said in a Feb. 2 statement.

“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.”

In the new petition, U.S. Solicitor General Elizabeth Prelogar argues that the appeals court erred.

“In concluding that Section 922(g)(8) lacks adequate historical support, the Fifth Circuit missed the forest for the trees. The court overlooked the strong historical evidence supporting the general principle that the government may disarm dangerous individuals,” the document states.

The court also “analyzed each historical statute in isolation and dismissed each one on the ground that it differed from Section 922(g)(8) in some way.”

The 5th Circuit’s “mode of analysis was flawed.” Courts interpreting the Second Amendment have to “consider text, history, and tradition, [but] they should not focus on whether the law at issue has ‘a historical twin,’” the petition states, quoting from the Bruen decision.

“This Court’s review is warranted because the Fifth Circuit held an important federal statute unconstitutional on its face,” the petition states.