OPINION|
The U.S. Supreme Court on Tuesday for 90 minutes weighed the actions of Zackey Rahimi, 23, of Texas, not solely in the context of his threatening behavior with a gun in recent years, but in the context of how Founding Fathers would view his right to possess that gun.
At stake is a 1994 federal law that tries to keep guns out of the hands of those facing a restraining order because they have been accused of domestic violence.
It could be devastating for victims if the U.S. Supreme Court rules the law unconstitutional.
Victims’ advocates point to estimates that the risk of homicide in domestic violence increases by as much as 500 percent with the presence of a gun.
It was former Minnesota U.S. Senator Paul Wellstone, who died in 2002, who said in a 1996 debate about a similar federal statute: “All too often, the only difference between a battered woman and a dead woman is the presence of a gun.”
What was meant 232 years ago?
The Supremes are reviewing a March ruling by the U.S. Court of Appeals for the Fifth Circuit, in New Orleans, that declared the law unconstitutional.
That court focused on what the intent of the Second Amendment was when passed in 1791.
Many of us are familiar with its wording: “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”
First of all Founding Fathers, active voice!
I find it odd and disappointing that our best legal minds are trying discern what the Second Amendment means today by looking at what it likely meant 232 years ago.
You can't do that without also asking: What did the Founding Fathers think about domestic violence?
I think the answer to that is, clearly, not much.
Would Paul Revere, say, have been stripped of his right to possess a firearm had he beaten his wife and threatened to shoot her?
I doubt it.
One source: to go back in time to interpret federal gun law is ‘offensive' to women
Justice Elena Kagan on Tuesday addressed this modern-day push to turn back time in trying to interpret the Second Amendment.
According to a Tuesday story in the Texas Tribune, Kagan said:
“Two hundred some years ago, the problem of domestic violence was conceived very differently. People had a different understanding of the harm. People had a different understanding of the right of government to try to prevent the harm. People had different understandings with respect to pretty much every aspect of the problem. So if you're looking for a ban on domestic violence, it's not going to be there.”
Enslaved people and Native Americans were not allowed to possess firearms when the Second Amendment was approved.
According to the same story, Krista Del Gallo, legislative director of the Texas Council on Family Violence said:
“If we’re just going to go back to the time in which the Second Amendment was written, that’s terrifying if that's the frame. It’s also — I’ll use this term — offensive. It’s offensive to women and children, who were the property of their husbands at the time; it’s offensive to Black people, [who] were not fully citizens at the time.”
Adhering to what was thought in 1791 regarding muskets is like adhering to ancient Biblical texts that, read literally, say the world was created in seven days.
In my view, the law should evolve as society evolves.
He's no poster child for 2nd Amendment rights
Rahimi is not a guy you'd want as a Second Amendment poster boy
One prosecuting attorney has said it's miraculous Rahimi hasn't killed anyone yet, especially his former girlfriend, with whom he shares a child.
He not only has insisted on possessing guns when he shouldn't, but he has a history of shooting them at people again and again.
Rahimi has had little or no respect for the law or court orders. A reasonable person would conclude that if had continued access to a gun, his former girlfriend would be dead by now.
In December 2019, he beat her up. When he realized a bystander was watching, Rahimi pulled out a gun and fired a shot at the witness. This was in Arlington, Texas.
Rahimi's girlfriend escaped, but he made sure to tell her that if she told anyone he'd shoot her.
In February, 2020, a Texas judge issued a civil — not criminal — restraining order. Rahimi was ordered to not contact the woman or to possess guns. Of course, he contacted her and possessed guns.
In fact, Rahimi fired a gun five different times in five different instances in the weeks after the restraining order was issued. In one case it was because a truck driver flashed his headlights at him, and in another it was because a friend's credit card was declined at a Whataburger.
Law enforcement agents found a pistol and a rifle during a search of Rahimi's residence in January 2021. Since then, he was charged under the federal law and he sits in a county jail in Texas.
Federal court in New Orleans reversed itself; what changed?
The U.S. Court of Appeals for the Fifth Circuit, in New Orleans, had previously upheld the law.
What changed?
Well, the Supremes in 2022 ruled 6-3 that a New York gun law was unconstitutional. They declared that carrying a pistol in public was guaranteed by the Second Amendment. It's called the Bruen decision.
The Supremes said that the closer you can get to what the Founding Fathers were thinking the closer you get to what the law should mean today.
In that decision, the High Court talked much about looking at the Second Amendment through the lens of “historical tradition.”
If a governmental body of today wants to restrict in some way the right to bear arms, it should be able to point to a law that existed early in our nation's history that had a similar restriction.
Well, as Justice Kagan says, good luck finding an early-American law barring domestic abusers from possessing a firearm.
In response to the 2022 U.S. Supreme Court Bruen decision, the court in New Orleans said, collectively: Let's take another look. It did and reversed itself.
I've read that New Orleans decision, which spends much time talking about the history of militias and what the gun laws were in 1791. They even probed the words “the people,” as in “the right of the people to keep and bear arms.”
In looking at the New Orleans decision, it appears that “the people” does not include convicted felons — but Rahimi was not a convicted felon.
It appears “the people” does include people just like Rahimi — charged but not convicted.
Really? A slippery slope leading to gunless speeders?
Judge Cory T. Wilson in New Orleans wrote that people should not lose a fundamental right because they have been charged with a crime or convicted of a lesser crime.
“Could speeders be stripped of their right to keep and bear arms?” Wilson wrote for the court. “Political nonconformists? People who do not recycle or drive an electric vehicle?”
My response to the esteemed jurist would be, “Gimme a break!”
You're comparing speeders to people with violent histories who have told intimate partners that if they testify they're as good as dead?
Let me back up for a minute. You should know that the main reason I'm writing about this case is because my colleague, Jackie Rehwald, and I spent much of the first six months of this year working on a 29-story series on domestic violence in Greene County.
It was published in June and July and called “Living in Fear.”
I am a man forever changed by reading close to 150 domestic-violence probable cause statements, where police officers detail why they believe a crime was committed. Those stories provided a shocking insight into the depth of the problem here in Greene County.
National reporting speculates law likely won't be overturned
Some of the national reporting on Tuesday's oral arguments speculates that the questions asked by Supreme Court justices indicate the court will be hesitant to overturn the law.
I, on the other hand, suspect the Supreme Court will make a decision that gives greater weight to the right to own a gun than to trying to keep victims safe. That seems to be the direction this court is headed.
I hope I'm wrong. Victims should not have have to dread a day when their ex comes knocking with gun in hand — not even having to break the law to have the weapon with them.
This is Pokin Around column No. 142.
