Media reports of the Supreme Court’s decision this June in United States v. Rahimi have stated that the Court upheld the federal ban on gun possession by individuals subject to domestic violence restraining orders (DVROs), but this is only half true. The federal statute creating that ban on firearms possession has two parts, and the second half is at risk, with potentially deadly consequences. Access to a firearm increases the likelihood of domestic abuse turning deadly by five-fold, with an average of 70 women shot and killed each month. Thankfully, there are a few simple steps states can take to preempt future Second Amendment challenges.
Under the first part of the federal statute, known as the “credible threat” prong, a DVRO prohibits gun possession if a judge has found that the restrained individual “represents a credible threat to the physical safety of [an] intimate partner or child.” Zackey Rahimi’s DVRO included a “credible threat” finding based on a long history of violent abuse. The Court rejected Rahimi’s Second Amendment challenge to the DVRO. Chief Justice Roberts’ majority opinion definitively held: “An individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.” But the Court emphatically (and repeatedly) limited its holding to this type of DVRO.
That leaves the second half of the statute vulnerable to Constitutional challenge. By its terms, this second category of DVRO does not require a judicial finding of dangerousness. If a DVRO “explicitly prohibits” certain types of “physical force” –– even without a finding of a credible threat of violence –– that is enough to trigger the federal prohibition on gun possession. The Supreme Court has left open the possibility that people who lose their right to bear arms based solely on the order’s prohibition of physical force may not pose a sufficient risk of violence to justify suspending their right to bear arms.
However, in most cases, there is a strong argument that even those falling solely within the second part of the statute have implicitly been found to be dangerous. In general, court orders are employed to prohibit people from doing something they would otherwise be legally allowed to do or to require them to do something that, absent the order, they would not be required to do. In other words, court orders either add or subtract legal duties, not restate existing ones.
DVROs that prohibit certain types of physical force remind individuals to refrain from acts they never had a legal right to commit. Why would a court enter such a seemingly gratuitous order? Because the court must believe a real risk exists that the order is necessary to change the status quo –– that absent the order, such acts of violence are likely to occur. But there is a real chance that the Supreme Court will require express judicial findings of dangerousness, ignoring caselaw to the contrary.
This is an important problem. Several states do not require an explicit “credible threat” finding for a DVRO to issue (California, for example). The constitutional validity of DVROs in these states, and the lives they protect, are in real peril. In fact, a federal case presenting this exact question is already on appeal, perhaps on its way to the Supreme Court.
Thankfully, there are simple solutions that do not require overturning the Court’s illogical Second Amendment jurisprudence. The easiest way for a judge to protect a DVRO is to include an express “credible threat” finding. Adding a single sentence would bring the DVRO squarely within the first part of the federal ban, which Rahimi held did not violate the Second Amendment. No new legislation is needed to implement this solution; judges can and should exercise their discretion to do it right now.
A stronger fix would be for states to amend their DVRO laws to require an express “credible threat” finding. This would make mandatory what is currently a matter of discretion. To be clear, this mandate would apply only to the prohibition on gun possession. States that have a lower standard for the issuance of a DVRO could impose other aspects of the order, like not coming within a certain distance of the protected individual, without a finding of credible threat.
To bulletproof DVROs, states could also include a statutory exception for self-defense. Such an exception would allow anyone subject to a protective order who can demonstrate a particularized need for a gun for self-defense to regain the right to bear arms. The Court has not expressly required such an exception, but there are a few concerning hints. To support its holding in Rahimi, the Court relied heavily on the historical precedent of “surety” laws, noting that these laws often included self-defense exceptions. In the landmark Heller case, the Court declared that the Second Amendment protects “the core lawful purpose of self-defense.” And Justice Gorsuch’s concurrence in Rahimi raised the possibility that the lack of a self-defense carveout might violate the Second Amendment.
Lower federal courts have not read Heller to require a self-defense exception. To the contrary, courts have rejected this argument, stating, “the fact that [the defendant] may have possessed the handgun for purposes of self-defense . . . is irrelevant.” But the current Supreme Court majority does not consider itself bound by even its own precedents, let alone the precedents of lower federal courts. In such uncharted and unpredictable territory, it would be prudent for states to consider adding a self-defense exception –– especially since few domestic abusers will be able to convince judges that their need for self-defense is greater than the risk of killing or seriously injuring their intimate partner with a firearm.
It is remarkable that Chief Justice Roberts wrote an opinion in Rahimi that garnered eight votes. That consensus was possible only by focusing on an extremely narrow question. One byproduct is that the Court’s reasoning in favor of one type of DVRO casts doubt on another significant category. But with a few simple changes, judges and states can eliminate any doubts. Countless lives are at stake.
The post <strong>A Simple Way to Protect Domestic Violence Orders Against the Next Constitutional Challenge</strong> appeared first on Harvard Law Review.