Federal Appeals Court Affirms Firearm Ban for Domestic Abusers

A customer shops for a pistol at Illinois sporting goods store. Scott Olson/Getty Images

A federal appeals court has upheld a federal law prohibiting individuals subject to certain domestic violence orders from possessing firearms, marking a significant reversal from its earlier stance after the U.S. Supreme Court’s landmark decision in United States v. Rahimi on the constitutionality of disarming individuals deemed dangerous.

The U.S. Court of Appeals for the Fifth Circuit ruled on Dec. 31 that, because alleged domestic abusers pose a clear threat of violence, the law that bars such individuals from possessing a firearm does not violate the Second Amendment.

The case, United States v. Perez-Gallan, centers on a constitutional challenge to 18 U.S.C. § 922(g)(8)(C)(ii), a provision that bars firearm ownership for individuals under court orders that explicitly prohibit the use—or threatened use—of physical force against an intimate partner or child.

Previously, the Fifth Circuit declared the law unconstitutional in light of the Supreme Court’s 2022 New York State Rifle & Pistol Association v. Bruen decision, which emphasized historical analogs as the basis for firearms regulation.

“Considering the issue afresh, we conclude that Bruen requires us to re-evaluate our Second Amendment jurisprudence and that under Bruen, §922(g)(8) fails to pass constitutional muster,” Judge Cory T. Wilson wrote in a Feb. 2, 2023 opinion on behalf of the Fifth Circuit.

However, the Supreme Court’s more recent ruling in Rahimi redefined the application of this standard, leading to a remand and reconsideration that prompted the Fifth Circuit to reverse course. After reconsidering the provision in light of the Supreme Court’s ruling in Rahimi, the appellate court determined that the law aligns with the nation’s historical regulatory traditions, including surety and going-armed laws, which allowed disarmament to prevent imminent harm.

“The dispute is whether, post-Rahimi 2024, § 922(g)(8)(C)(ii) facially violates the Second Amendment. It does not,” Judge Jerry E. Smith wrote in the Dec. 31 opinion. “Because there are at least some circumstances in which the government could constitutionally apply (C)(ii) to a defendant’s conduct, we reverse and hold that (C)(ii) is not facially unconstitutional.”

Smith noted in the latest opinion that, when considered jointly post-Rahimi, the surety and going-armed laws “confirm what common sense suggests: [w]hen an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.”

The court concluded that § 922(g)(8)(C)(ii) does not facially violate the Second Amendment because: the provision applies only to individuals under judicial orders issued after notice and a hearing; it stipulates that the orders must restrain the individual from engaging in threatening conduct like harassing, stalking, or threatening; it requires that the terms of the order explicitly prohibit the use—or threatened use—of physical force.

While the court found that the provision is not unconstitutional, it did acknowledge potential concerns about its application in specific scenarios in which abuse victims could inadvertently be disarmed, namely when it comes to so-called “mutual” protective orders.

“If these court orders also meet the terms of §§ 922(g)(8)(A) and (B), an abused woman could lose her right to possess a gun just because her violent domestic partner is awarded a mutual protective order against her, even if there are no indications that the women herself is dangerous,” Smith wrote, calling the prospect of such an outcome “profoundly perverse.”

However, he noted that even though the law might have “some perverse and possibly unconstitutional applications [, it] does not mean that all its possible applications violate the Second Amendment.”

The Fifth Circuit decision remands the case to the district court to assess the law’s application to Litsson Perez-Gallan, who was found in possession of a firearm despite being subject to a Kentucky court order following a domestic violence incident.