Fifth Circuit rejects DOJ stance on prohibited persons: "lacks any true limiting principle"

Fifth Circuit rejects DOJ stance on prohibited persons: "lacks any true limiting principle"
AP Photo/Susan Walsh

Most of the headlines and coverage of the Fifth Circuit Court of Appeals’ decision that the federal prohibition on gun possession for those individuals under a domestic violence restraining order violates the Second Amendment have cast the opinion as the act of conservative activist judges hellbent on undoing any and all federal gun laws. The actual opinion, however, makes it clear that the the appellate court’s issue wasn’t just with this specific statute, but the underlying argument that the Department of Justice made in trying to defend the law.


From the outset of the opinion the three judge panel was careful to note that “[t]he question presented in this case is not whether prohibiting the possession of firearms by someone subject to a domestic violence restraining order is a laudable policy goal. The question is whether 18 U.S.C. § 922(g)(8), a specific statute that does so, is constitutional under the Second Amendment of the United States Constitution.” In other words, there may very well be a way for Congress to enact a statute that could address gun ownership by “dangerous” people that wouldn’t run afoul of the Constitution, but the current statute fails that test.

The Fifth Circuit panel dismissed the DOJ’s assertion that the Second Amendment only applies to “law-abiding citizens,” noting that while that phrase does appear in both the Heller and Bruen decisions, it was used by justices as shorthand “in explaining that its holding (that the amendment codifies an individual right to keep and bear arms) should not “be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings.” The text of the Second Amendment, on the other hand, specifically notes that the right to keep and bear arms is a right “of the people”; an important distinction given the government’s argument that virtually any criminal act, no matter how minor or severe, could result in a lifetime loss of Second Amendment rights.


Perhaps most importantly, the Government’s proffered interpretation lacks any true limiting principle. Under the Government’s reading, Congress could remove “unordinary” or “irresponsible” or “non-law abiding” people—however expediently defined—from the scope of the Second Amendment. Could speeders be stripped of their right to keep and bear arms? Political nonconformists? People who do not recycle or drive an electric vehicle? One easily gets the point: Neither Heller nor Bruen countenances such a malleable scope of the Second Amendment’s protections; to the contrary, the Supreme Court has made clear that “the Second Amendment right is exercised individually and belongs to all Americans.” Rahimi, while hardly a model citizen, is nonetheless part of the political community entitled to the Second Amendment’s guarantees, all other things equal….

At least as far as the federal charge he was facing goes. Rahimi was also prosecuted in Texas for several state-level offenses related to a number of shootings in the Dallas area, which also impact his ability to lawfully possess a firearm. But Rahimi was specifically challenging the federal charge levied against him when police found him in possession of a firearm during their investigation into the shootings, which resulted in a six-year federal prison sentence.

The Fifth Circuit correctly pointed out that, under the Bruen test laid out by the Supreme Court, it was up to DOJ to provide the historical analogues that would show the federal statute in question is part of a longstanding tradition. But the appellate panel concluded that none of the evidence provided by DOJ attorneys actually relates to the statute in question.


DOJ first pointed to the English Militia Act of 1662, under which officers of the Crown could “seize all arms in the custody or possession of any person” that they found to be dangerous “to the peace of the Kingdom.” The Fifth Circuit panel rejected that argument as not consistent with our own tradition of the right to keep and bear arms and pointing out that the Militia Act was abrogated by the 1689 English Bill of Rights, which “qualified the Militia Act by guaranteeing ‘[t]hat the subjects which are Protestants may have arms for their defence suitable to their Conditions and as allowed by Law.'”

The Government next points to laws in several colonies and states that disarmed classes of people considered to be dangerous, specifically including those unwilling to take an oath of allegiance, slaves, and Native Americans…. [But t]he 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. Therefore, laws disarming “dangerous” classes of people are not “relevantly similar” to § 922(g)(8) such that they can serve as historical analogues.

Finally, the Government offers two proposals that emerged in state ratification conventions considering the proposed Constitution. A minority of Pennsylvania’s convention authored a report in which they contended that citizens have a right to bear arms “unless for crimes committed, or real danger of public injury.” And at the Massachusetts convention, Samuel Adams proposed a qualifier to the Second Amendment that limited the scope of the right to “peaceable citizens.”

But these proposed amendments are not reflective of the Nation’s early understanding of the scope of the Second Amendment right. While they were influential proposals, neither became part of the Second Amendment as ratified. Thus, the proposals might somewhat illuminate the scope of firearm rights at the time of ratification, but they cannot counter the Second Amendment’s text, or serve as an analogue for § 922(g)(8) ….


The closest DOJ came to finding an actual analogue, according to the court, was its reference to “surety laws” that required certain individuals believed to pose a heightened risk to public safety to post a bond before they could carry a firearm. Even that example failed the Bruen test, however, because:

As the Government acknowledges, historical surety laws did not prohibit public carry, much less possession of weapons, so long as the offender posted surety. See also Bruen (noting that there is “little evidence that authorities ever enforced surety laws”). Where the surety laws imposed a conditional, partial restriction on the Second Amendment right, § 922(g)(8) works an absolute deprivation of the right, not only publicly to carry, but to possess any firearm, upon entry of a sufficient protective order. At bottom, the historical surety laws did not impose “a comparable burden on the right of armed self-defense.”

In his concurring opinion, Judge James Ho added that there are two principles at play here; “the fundamental role of government in protecting citizens against violence, as well as the individual right to keep and bear arms.” Those two ideals are not incompatible with one another, wrote Ho, but that doesn’t mean that the government’s interest in public safety can trample on that individual right.

Our Founders understood that those who commit or threaten violence against innocent law-abiding citizens may be arrested, convicted, and incarcerated. They knew that arrest and incarceration naturally entails the loss of a wide range of liberties—including the loss of access to arms. {See, e.g., Chimel v. California (1969) (“When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape.”); State v. Buzzard (Ark. 1842) (Ringo, C.J.) (“Persons accused of crime, upon their arrest, have constantly been divested of their arms, without the legality of the act having ever been questioned.”).}

So when the government detains—and thereby disarms—a member of our community, it must do so consistent with the fundamental protections that our Constitution affords to those accused of a crime. For example, the government may detain dangerous criminals, not just after conviction, but also before trial. Pre-trial detention is expressly contemplated by the Excessive Bail Clause and the Speedy Trial Clause. And it no doubt plays a significant role in protecting innocent citizens against violence. See, e.g., United States v. Salerno (1987) (permitting “the detention prior to trial of arrestees charged with serious felonies who … pose a threat to the safety of individuals or to the community”).

Our laws also contemplate the incarceration of those who criminally threaten, but have not (yet) committed, violence. After all, to the victim, such actions are not only life-threatening—they’re life-altering.


Clearly, then, this isn’t a case of the Fifth Circuit sanctioning or downplaying domestic abuse. The decision simply says that this particular statute cannot be justified under the Constitution. Congress can still legislate in this arena if it chooses, but the end result must not only comport with the government’s desire to protect the public, but its duty to respect the individual rights of the people.

Merrick Garland is already vowing to appeal the Fifth Circuit’s decision, and it will be very interesting to see if SCOTUS is ready and willing to wade into this particular debate. The unanimous opinion from the Fifth Circuit judges cites Justice Amy Coney Barrett’s dissenting opinion in Kanter, in which she said wrote that “dangerousness” is the proper standard to judge whether someone should be prohibited from keeping and bearing arms, as opposed to a blanket prohibition for all felons, including those convicted of non-violent crimes. So far the Court has not been inclined to take up that argument, but the Fifth Circuit decision offers them perhaps their best opportunity to do so since the Bruen decision was handed down last June.

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