Putting More Guns in the Wrong Hands

Title 18 U.S.C. 922(g) is a federal criminal statute that prohibits people in certain categories from possessing firearms. While it is most often used, and frequently referred to, as a prohibition against felons possessing firearms, it also prohibits fugitives, drug users, “mental defectives,” unlawfully present aliens, people dishonorably discharged from the military, and people who have renounced their U.S. citizenship from owning or possessing firearms. Its final two subsections also prohibit possession by a range of people who have been convicted of domestic violence or committed intimate-partner violence. Here’s the domestic violence provision:

(g) It shall be unlawful for any person—

…(8) who is subject to a court order that—

(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;

(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and

(C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or…

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

The provision seems like a reasonable restriction, designed to protect public safety. The statute has been around since the 1960s, and the domestic violence prohibition has been included since Congress amended the Gun Control Act in 1994. Who would think it would make sense to change it?

Here’s what has happened:

First the Supreme Court decided Heller, a case that extended the Second Amendment notion of well-armed militias to permit Americans to possess virtually any kind of firearm that wasn’t fully automatic or short-barreled in their home, under a self-defense rationale. Then came last term’s decision in Bruen, a New York case, that struck down what it decided were unreasonable limitations on public possession of firearms. So we knew it was only a matter of time until a court took it even further. After all, over the years the NRA has advocated for the right of blind people to carry firearms, and the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), the only federal agency tasked with oversight of the gun industry, is so notoriously underfunded by Congress that it cannot fully perform that role.

This week the 5th Circuit entered the fray, ruling that the domestic violence provision of 18 U.S.C. 922(g) contradicts the nation’s “historical tradition” of access to firearms even for people who aren’t “model citizens.” The three-judge panel (two Trump appointees and one Reagan appointee, for those who are counting) held that the statute is unconstitutional because it gives too much power to Congress to determine who qualifies as “law-abiding, responsible citizens” when it comes to gun ownership.

The court worried about who might lose their right to possess firearms if they permitted the prohibition against people with a demonstrated propensity towards violence against their partners to stay on the books: “Could speeders be stripped of their right to keep and bear arms? Political nonconformists? People who do not recycle or drive an electric vehicle?”

The court vacated the conviction of the Texan man Zackey Rahimi, who pleaded guilty to having a pistol in his home following the issuance of a civil domestic-violence restraining order for assaulting his former girlfriend. Texas, which we know denies women abortion access to protect the lives of unborn fetuses, apparently thinks it’s acceptable to risk that same woman’s life at the hands of a man with a firearm who has already shown a willingness to do violence to her. The court wrote that “Rahimi, while hardly a model citizen, is nonetheless part of the political community entitled to the Second Amendment’s guarantees, all other things equal.”

The 5th Circuit contorted itself to ignore the use of language like “law-abiding citizen” that prior cases have used to determine the reach of Second Amendment rights. And while the decision is limited to the 8th subsection of the statute, which we started out with above, there is little reason to believe litigants won’t proceed to challenge other parts of the statute.

And none of this is theoretical. Prosecutions for possession of firearms by disqualified persons have risen steadily over the years. The most recent numbers available from the U.S. Sentencing Commission show that in 2021, there were 7,454 offenders convicted under 18 U.S.C. 922(g). That was an increase from 6,032 offenders in fiscal year 2017. Illegal firearms possession cases are also significant as a percentage of DOJ’s total criminal docket. For instance, in fiscal year 2016, there were 5,391 offenders convicted under 18 U.S.C. 922(g), accounting for 8% of all offenders sentenced in federal court.

DOJ has already announced it will appeal the Rahimi decision in a statement from Attorney General Garland: “Nearly 30 years ago, Congress determined that a person who is subject to a court order that restrains him or her from threatening an intimate partner or child cannot lawfully possess a firearm. Whether analyzed through the lens of Supreme Court precedent, or of the text, history, and tradition of the Second Amendment, that statute is constitutional. Accordingly, the Department will seek further review of the Fifth Circuit’s contrary decision.”

What should we expect the Supreme Court to do? In a 2019 case, Rehaif, the Court considered whether the government had to prove a defendant was aware they had the status that made it a crime for them to possess a firearm (in that case, that they were not legally in the United States). The Court ruled that the government did, without in any way suggesting that the statute itself was unconstitutional. However, this Court has been less mindful of precedent than the Court has been at any other point in our lifetimes. Given its recent trajectory on firearms and Second Amendment issues, it’s hard to feel optimistic that all of the public-safety-based restrictions on firearms ownership in 922(g) will survive.

We’re in this together,

Joyce