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DOJ asks Supreme Court to review domestic violence gun ruling

A lower court found the restriction unconstitutional based on a Supreme Court ruling from last year

The Supreme Court in 2022.
The Supreme Court in 2022. (Tom Williams/CQ Roll Call)

The Justice Department has asked the Supreme Court to overturn a lower court decision that struck down a federal law that prohibits gun possession for individuals under domestic violence restraining orders.

The U.S. Court of Appeals for the 5th Circuit in February based its decision on a Supreme Court case from last year that expanded Second Amendment rights and has led other courts to strike down other gun restrictions.

In a petition sent to the court that urged quick action, the Justice Department argued that governments have “long disarmed” people who present a threat to other people’s safety.

“And if allowed to stand, it would thwart Congress’s considered judgment that persons who have been found to be a threat to their intimate partners or children should not be permitted to acquire or possess firearms,” the Justice Department brief states.

Millions of Americans will be victims of intimate-partner abuse and the risk of homicide rises when there’s a gun in a house that has a domestic abuser, the government wrote.

“The Fifth Circuit’s contrary decision misapplies this Court’s precedents, conflicts with the decisions of other courts of appeals, and threatens grave harms for victims of domestic violence,” the government’s petition states.

The government said it filed the petition on an expedited schedule to allow the court to determine, before the court recesses for the summer at the end of June, whether it will take up the case.

The federal law prohibits a person from possessing a firearm if they are subject to a court order that restrains them from harassing or threatening an intimate partner.

The 5th Circuit pointed to the Supreme Court’s decision in New York State Rifle & Pistol Association Inc. v. Bruen, which laid out a legal test of sorts for gun rules that looks to the tradition and history of the Constitution’s Second Amendment.

The appeals court found the government failed to show that the statute’s “restriction of the Second Amendment right fits within our Nation’s historical tradition of firearm regulation.”

The 5th Circuit also wrote that it previously found that the “societal benefits” of the provision outweighed its burden on the Second Amendment rights of a defendant in the case.

“But Bruen forecloses any such analysis in favor of a historical analogical inquiry into the scope of the allowable burden on the Second Amendment right,” the court said in the ruling.

The government wrote in its petition that the 5th Circuit “overlooked the strong historical evidence supporting the general principle that the government may disarm dangerous individuals. The court instead analyzed each historical statute in isolation.”

The appellate court ruling caught the attention of the Justice Department early on as well.

“Whether analyzed through the lens of Supreme Court precedent, or of the text, history, and tradition of the Second Amendment, that statute is constitutional,” Attorney General Merrick B. Garland said the same day the appellate opinion ruling came out.

In a hearing before the Senate Judiciary Committee last week, witnesses said the Supreme Court decision in Bruen has wreaked havoc on the country’s gun control laws.

At the committee hearing, Ruth M. Glenn with the National Coalition Against Domestic Violence called attention to the 5th Circuit’s appellate ruling, which applies to Texas, Louisiana and Mississippi.

“The lack of historical laws restricting firearms access by domestic abusers is not evidence that such laws are unconstitutional,” Glenn said. “Rather it is a reflection of the legally subordinate status and general disregard for the rights and needs of women in early America.”

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