ACLU Submits Amicus Brief Supporting Constitutionality of Restrictions on Gun Possession by Individuals Subject to Domestic Violence Restraining Orders

August 21, 2023 6:06 pm

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NEW YORK — Today, the American Civil Liberties Union submitted an amicus brief to the U.S. Supreme Court in United States v. Rahimi, a Second Amendment challenge to the federal law that prohibits possession of firearms by those subject to domestic violence restraining orders.

The U.S. Court of Appeals for the Fifth Circuit invalidated the federal law because it found no analogues in the 1700s or 1800s that restricted gun possession for those who commit domestic violence, at a time when domestic violence was not considered a serious problem, and women were legally subjugated to men. The Fifth Circuit’s rationale would deny governments any ability to prohibit gun possession by persons subject to restraining orders — including pre-acquisition background checks, which have stopped more than 77,000 purchases of weapons by individuals subject to domestic violence orders in the 25 years that the law has been in place.

The Fifth Circuit's analysis is a misapplication of the Supreme Court’s decision in New York State Rifle & Pistol Association, Inc. v. Bruen, which requires courts to analyze gun regulations under an “originalist” framework. As applied by the Fifth Circuit, this approach risks freezing government’s ability to protect people from newly recognized threats and tethers the authority to regulate gun possession to periods when governments disregarded and often drove many forms of violence directed against women, Black people, Indigenous people, and others.

The ACLU’s amicus brief urges the Supreme Court to reject the Fifth Circuit’s reasoning, but also urges the court to do so on narrower grounds than those advanced by the United States, which maintains that Second Amendment rights are limited to “law-abiding, responsible citizens.”

“We cannot stand by as federal courts rely on the historical subordination of women to strike down legal protections extended to survivors of domestic violence,” said Sandra Park, senior staff attorney in the ACLU Women’s Rights Project. “Domestic violence is a pervasive and grave issue that the government for too long condoned. The Second Amendment does not prevent legislatures from adopting tailored gun restrictions that bar gun possession by persons subject to restraining orders because they are found to pose a threat to intimate partners or family members.”

The ACLU’s brief argues that imposing time-limited firearms restrictions based on civil restraining orders is a critical tool for protecting those who have experienced domestic violence and face a threat of further violence, and affords them the opportunity to do so without seeking criminal prosecution.

While arguing for reversal of the lower court, the ACLU’s amicus brief urges the court to do so on the basis of a narrow holding that there is historical support for disarming persons who are adjudicated as threats of violence to others, rather than the United States’ overbroad assertion of authority to deny gun rights to anyone not deemed a “law-abiding, responsible citizen.”

The ACLU’s amicus brief also underscores important policy and constitutional concerns with gun laws more generally. Criminal enforcement of overbroad gun laws fuels mass incarceration and the disproportionate imprisonment of Black people and other people of color. Moreover, gun laws can raise due process, equal protection, and excessive punishment concerns — none of which is addressed by this case. The brief also observes that other parts of the statute at issue in Rahimi impose categorical prohibitions, such as on all persons with a felony conviction, persons who use drugs, persons who are deemed mentally unfit, and certain noncitizens. These overbroad prohibitions raise distinct concerns under the Second Amendment.

The amicus brief is available here.

United States v. Rahimi is a part of the ACLU’s Joan and Irwin Jacobs Supreme Court Docket.

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