California Family Code section 6389 says that a person who has been served with a domestic violence restraining order is prohibited from owning, possessing, purchasing, receiving, or attempting to purchase or receive, a firearm or ammunition while the restraining order remains in effect. The question is whether such a prohibition is legal. In other words, does the prohibition violate a person’s Second Amendment right to bear arms?
According to a recent decision by the United States Supreme Court, the answer is possibly no. The case, United States v. Rahimi (2024) 602 U.S. ________, held that a federal statute that prohibited an individual subject to a domestic violence restraining order from possessing a firearm if that order includes a finding that the restrained person “represents a credible threat to the physical safety of [an] intimate partner or a child of the partner or individual”.
Some thought the high court, which has expanded the scope of Second Amendment protections in its recent decisions, would strike this type of firearm restriction down, but it did not. Speaking for an 8-1 majority, Chief Justice John Roberts stated “[w]hen a restraining order contains a finding that an individual poses a credible threat to the physical safety of an intimate partner, that individual may—consistent with the Second Amendment—be banned from possessing firearms while the order is in effect”. In part, the Court’s rationale was based on the fact that “the right secured by the Second Amendment is not unlimited.” Moreover, “the Second Amendment permits more than just those regulations identical to ones that could be found in 1791”, when the amendment was enacted. Even more pleasing for those happy with the outcome in Rahimi, the opinion reads, “when a challenged regulation does not precisely match its historical precursors, ‘it still may be analogous enough to pass constitutional muster.’ The law must comport with the principles underlying the Second Amendment, but it need not be a ‘dead ringer’ or a ‘historical twin’”.
The Court also noted that the punishment Rahimi faced – disarmament—was less severe than what historical gun crimes provided for – actual imprisonment.
Accordingly, the Court reversed the judgment of the United States Court of Appeals for the Fifth Circuit, which had reversed a lower court’s ruling that the federal law at question was consistent the Second Amendment.
The case –like any Supreme Court case—was significant. It was significant because just two years earlier, the high court had ruled in New York State Rifle & Pistol Assn., Inc. v. Bruen (2022) 597 U.S. 1 that “when a firearm regulation is challenged under the Second Amendment, the Government must show that the restriction ‘is consistent with the Nation’s historical tradition of firearm regulation’”.
However, for those who champion a person’s right to bear arms, there is an argument that California’s Judicial Council’s forms used for domestic violence restraining orders do not contain a place for a finding that the restrained person “represents a credible threat to the physical safety of an intimate partner or the child of the partner or individual.” That is certainly the case with form DV-130, entitled “Restraining Order After Hearing”. (This form was updated this year, before Rahimi but after Bruen.) Yes, the granting of the restraining order may imply such a finding, but the forms do not contain the exact language that made the federal statute pass muster in the Rahimi case.
One thing is sure: the battle over guns is not over.
And another thing: the facts of Rahimi were so severe that maybe the Second Amendment was not designed to be a defense in this matter. According to the facts, in December, 2019, Rahimi met his girlfriend, C.M., for lunch and got into an argument with her that ended up with her being grabbed, dragged, and shoved into a car. C.M. escaped, but Rahimi fired a weapon as she left.
C.M. went to court to seek a restraining order. Rahimi did not file any papers to oppose it. The order was granted and Rahimi was ordered not to possess a gun for at least two years. Months later, Rahimi violated the restraining order by approaching C.M.’s home at night.
Then, in November, Rahimi threated a different woman with a gun, resulting in a charge for aggravated assault with a deadly weapon. While under arrest, Rahimi was identified as the suspect in at least five additional shootings.
If you want even more details, you will have to read the Rahimi opinion for yourself.