Today, Explained - Should domestic abusers lose gun rights?

Episode Date: November 6, 2023

The Supreme Court will decide if Zackey Rahimi, a man accused of domestic violence and involved in at least five shootings, still has a constitutional right to bear arms. KERA reporter Caroline Love and law professor Eric Ruben explain. This episode was produced by Haleema Shah, edited by Amina Al-Sadi, fact-checked by Serena Solin and Laura Bullard, engineered by Rob Byers, and hosted by Noel King. Transcript at vox.com/todayexplained Support Today, Explained by making a financial contribution to Vox! bit.ly/givepodcasts Learn more about your ad choices. Visit podcastchoices.com/adchoices

The Supreme Court will hear opening arguments tomorrow in a Second Amendment case with a perfectly imperfect plaintiff. 23-year-old Zeki Rahimi is currently in jail facing gun-related charges, and the Supreme Court is going to know these facts about him from jump. Rahimi assaulted his now ex-girlfriend, then shot at a bystander who witnessed it. He threatened another woman with a gun, shot at a man's house, alleging the man trash-talked him, had a car accident, and shot at the other driver. Three days later, he shot into the air, this time with kids present, then shot at a car after a truck driver flashed his lights, then shot in the air at a Whataburger after his friend's credit card was declined.

A man who shoots at things after even the mildest of setbacks maybe shouldn't have a gun. A Texas judge citing a restraining order because of Rahimi's domestic abuse agreed. His lawyer argues that violated his Second Amendment rights. And now it's before the Supreme Court. Coming up on Today Explained. The all-new FanDuel Sportsbook and Casino is bringing you more action than ever. Want more ways to follow your faves? Check out our new player prop tracking with real-time notifications. Or how about more ways to customize your casino page

with our new favorite and recently played games tabs. And to top it all off, quick and secure withdrawals. Get more everything with FanDuel Sportsbook and Casino. Gambling problem? Call 1-866-531-2600. Visit connexontario.ca. I reached Caroline Love in Dallas. Caroline's a reporter for KERA, an NPR member station. She's been following this story, and so I asked her to start at the beginning. This goes all the way back to 2019.

Zaghi Rahimi is an alleged drug dealer. Rahimi and his girlfriend got into an argument, and during that argument, he knocked her down and her head hit the car dashboard, and there was a witness. When Rahimi saw there was a witness, he shot into the air and he fled. In February 2020, his girlfriend got a family violence protective order against Rahimi through a civil court. What is a protective order and what is it supposed to do in the case where somebody is accused of domestic violence? We're talking specifically about family violence protective orders. And they order the alleged abuser to not hurt or threaten their victim, stay away, and to not carry a gun even if they have a firearm license. And in order to get one of these protective orders in Texas, you have to show that violence has occurred and is likely to continue. And that protective order

says that Rahimi cannot have firearms while that protective order is in effect, which is usually about two years. There are two laws in Texas that say that Zachy Rahimi cannot have a firearm. There's a federal law and there's an equivalent state law as well. But in December 2020 and January 2021, Rahimi is involved in five shootings in and around Arlington, Texas. That's between Dallas and Fort Worth, including an incident where he shot into the air after his friend's credit card was declined at a Whataburger, very popular fast food chain in Texas. He also fired multiple shots at someone's house

after he sold them narcotics. And so Arlington police officers got a warrant to search Rahimi's home, and they found firearms. Police say they found him with a pistol and a rifle in violation of a restraining order issued after he was accused of assaulting and threatening to shoot an ex-girlfriend. And they also found a copy of that domestic violence protective order from February 2020. And so Rahimi was arrested in October 2021 by U.S. Marshals and was later indicted by a federal grand jury in Tarrant County.

He is charged with three counts of aggravated assault with a deadly weapon, and then he was also charged with deadly conduct discharge of a firearm as well. How often are people's guns in the state of Texas taken away as a result of this type of protective order? Unfortunately, they're not taken away very often. So Texas doesn't have a standardized statewide system to collect and store firearms when someone is subject to a protective order. So more often than not, people end up keeping their firearms when they're not supposed to. There's only a few of these programs that exist in the entire state, and they're connected to specific district courts.

Okay, so Zeki Rahimi ends up in court, and what are the charges? After the host of shootings that Rahimi was involved in, he had multiple charges. But the one that we're here to focus on today is the fact that he was charged with being in possession of firearms while subject to a domestic violence protective order. And the district court found him guilty. And he said during appeals that that particular charge violated his Second Amendment rights. But the Fifth Circuit upheld the district court's ruling at first. But then things changed. The Supreme Court released its ruling in another gun rights case, New York State Rifle and Pistol Association

v. Brun. For the first time in American history, the Supreme Court ruled that when the Second Amendment says there's a right to keep and bear arms, that means a right to carry a handgun outside the home for self-defense. And in that decision, Justice Clarence Thomas said that modern gun laws need to be justified with a similar law from when the country was founded. After that opinion was released in June 2022, the Fifth Circuit wrote a new opinion in the Rahimi case and reversed its prior ruling. A panel of Republican appointed judges in the Fifth Circuit Court of Appeals acknowledged that Rahimi was, quote, hardly a model citizen, but they ruled the gun restrictions imposed on him were unconstitutional.

That's interesting. So Zeki Rahimi, domestic abuser, gentleman who repeatedly shot a gun into the air around the state of Texas, he could be entitled to carry a gun because of a Supreme Court decision on concealed carry laws in New York state. What is the reaction in Texas to all of this? A lot of the opinions are coming from the people who are very plugged into issues about guns and issues about domestic violence. Those groups fighting to keep women and children safe, appalled at the appeals court ruling. It's the reaction of the entire domestic violence community nationwide. We are really offended. We are frightened. This was a very, very dangerous thing to do. You know, they've said that the presence of a firearm in any domestic violence situation increases a victim's risk of homicide by 500%. And in fact, in Texas in particular, in the past decade, the number of women killed by a

male partner with a firearm has nearly doubled. All right, so the people who have expertise in domestic and intimate partner violence, they're saying this is a very bad move. There is a big pro-gun rights lobby in Texas, and I imagine they're looking at Zeki Rahimi like, oh my God, this guy? But I wonder, do they have to come out and say, yes, we think Zeki Rahimi, famed shooter up of Whataburgers, should have the right to carry a gun around the state of Texas? Several pro-gun groups have filed amicus briefs, and they argue that disarming somebody in a civil court is not due process. So there are multiple types of family violence protective orders, and the one in particular that Rahimi's girlfriend had is a civil protective order. The only criminal court protective order is an emergency protective order that a magistrate judge will issue after

somebody has been arrested for committing an act of family violence. So those are usually issued when the accused is in jail. I think we understand where each side is on this. If you understand domestic violence, you think this is terrible. If you're pro-gun rights, you're like, well, Zaki Rahimi's a mess, but you know, the law should apply to all. How does this end up in the Supreme Court? And what exactly is the case going before the Supreme Court here? Right. So the U.S. Department of Justice got involved. They filed a petition asking the Supreme Court to review the Fifth Circuit's ruling and overturn it so they can uphold the federal law. And the Department of Justice argues that the Fifth Circuit was profoundly mistaken in its ruling and pointed to the fact that governments have long disarmed

people who pose a threat to public safety. And they point specifically to rulings from the Third and Eighth Circuits that applied a similar framework the judge in the Fifth Circuit used and found historic laws that, in their view, upheld the domestic violence gun law. Where is Zaki Rahimi now, and is he still armed? So, Zaki Rahimi is in the Tarrant County Jail. You know, this isn't the only thing he's been charged with. He was also charged with three counts of aggravated assault with a deadly weapon, deadly conduct discharge of a firearm, and possession of a controlled substance.

Okay, so Zekirahimi will go to court on other things, but right now, if he were to be acquitted of all of those things, Zekirahimi could walk around the state of Texas carrying a gun. Potentialer. Caroline Love. She's a reporter at KERA in Dallas, Texas. Coming up, the case that set the precedent for Zaki Rahimi's Supreme Court appearance this week. Support for Today Explained comes from Aura. Aura believes that sharing pictures is a great way to keep up with family, and Aura says it's never been easier thanks to their digital picture frames. They were named the number one digital photo frame by Wirecutter.

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If you have any questions or concerns about your gambling or someone close to you, please contact Connex Ontario at 1-866-531-2600 to speak to an advisor free of charge. BetMGM operates pursuant to an operating agreement with iGaming Ontario. Today Explained, we're back with Eric Rubin. Eric's a professor at Southern Methodist University's Dedman School of Law. He's also a fellow at the Brennan Center, and he filed an amicus brief in United States v. Rahimi. He says this is a hugely important case. It's a hugely important case. It's a hugely important case both in terms of domestic violence prevention and also because of the Second Amendment. The policy goal of this federal law that's at issue in this case is to address this epidemic of domestic violence by removing guns from domestic abusers. If the Supreme Court were

to strike down this law, that would mean that people like Rahimi could not be disarmed. They'd have a constitutional right to keep the very weapon that makes domestic violence so much more lethal. And beyond the significance of this case for domestic violence prevention, it's also really important for the future of the Second Amendment. There's been a lot of confusion in the courts about how to decide Second Amendment cases after last year's decision in Bruin.

And this case is going to allow the Supreme Court to provide more explanation. Tell us in Bruin. And this case is going to allow the Supreme Court to provide more explanation. Tell us what Bruin was. Case 2843, New York State Rifle and Pistol Association versus Bruin. So Bruin was issued in June of 2022. It was a case that didn't involve domestic violence. Rather, it involved restrictive policy in the state of New York for carrying handguns in public. In particular, under New York law at the time, and this was the way that New York law had stood for

over a century, in order to carry a concealed handgun in public, a person needed to apply for a permit. And in order to get that permit, they had to show that they had proper cause. The requirement you need to show in order to carry concealed for self-defense, but not for hunting and target practice, is you have to show that you have a need for self-defense that distinguishes you from the generalized community, from the general community. Like the person could show that they had been stalked or they carried a lot of money for their jobs. And the plaintiffs in the Bruin case did not have any special need for self-defense, so they were denied permits to carry handguns in public, and they challenged the New York policy as unconstitutional under the Second

Amendment. And in that case, the Supreme Court split across ideological lines, 6-3, and struck down the New York policy. Writing for the 6-3 majority, Justice Clarence Thomas said concealed carry laws in New York and at least five other states prevent law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms. Now, that was a highly significant outcome just in terms of public carry because it meant that the policies that governed about 20 percent of the population were unconstitutional. But beyond that, the Supreme Court said that it doesn't matter what the Second Amendment issue is. Courts had been doing it wrong. And rather than weighing modern day costs and benefits, which is one of the things that courts were doing,

they had to make decisions in Second Amendment cases solely on the basis of our historical tradition. They had to see whether or not our modern laws, which address modern guns and modern-day problems, are similar enough to the laws that were enacted and the policies that were enforced back when the Second Amendment was enacted in 1791. Shocking. Absolutely shocking. That they have taken away our right to have reasonable restrictions. We can have restrictions on speech. You can't yell fire in a crowded theater.

But somehow there's no restrictions allowed on the second amendment this is an unusual way to do constitutional law it differs from the the methods and the standards that apply for other individual rights and it's different than the tests that had applied in more than 1 000 cases that were decided before Bruin came down. And on the ground, in a case like Rahimi, it's really important because every single court that decided the constitutionality of this law before Bruin found it perfectly constitutional. But what Bruin did is it said that those outcomes are irrelevant. And in effect, litigants got a do-over in contexts like Rahimi's, but also other contexts across weapons regulation to re-challenge laws that had previously been upheld. And courts have been trying to apply this historical analogical

approach. That has led to widespread confusion in the lower courts. This case is an example of that. So the Supreme Court says, to determine what to do here, let's look back to the year of our Lord, 1791. This seems to me to be the fight that we are consistently in this country having over guns and gun rights. What was going on in 1791 is not what is going on today. The weapons available in 1791 are not the weapons available today. What I'm curious about in this case, though, given the specifics of Rahimi, what were the laws in 1791 about domestic violence, about hitting your ex-girlfriend? Noelle, as you mentioned, things were very different back then. For one thing, this was the era of muzzle-loading firearms. And one of the things that historians have found is that guns weren't used in that many domestic violence situations just because they

weren't close at hand when domestic incidents propped up. But beyond that, policymakers during the framing era didn't view women as political or legal equals to men. And they didn't view domestic violence as a problem worthy of addressing through legislation. Back then, women didn't have the franchise, nor did non-white men. In other words, over half of this country was disenfranchised and didn't get to vote for the policies that we had in place. And that might be part of the reason why there weren't robust protections for domestic violence victims back then. Now, there were some restrictions that existed, and they were largely restrictions against homicide and provisions that allowed for the imposition of peace bonds, where somebody would have to put up money, and if they behaved unpeacefully, then they could forfeit that money.

And those sometimes were used in the domestic violence law that Rahimi was convicted for is inconsistent with our historical tradition, went too far and overlooked relevant history and didn't analogize correctly to the past. me so interesting is that this man seems like a bit of a fool. Dangerous, certainly, but also some of his actions, shooting at a constable's car, shooting in the air, shooting at the Whataburger. This is not a man that you want owning a gun, right? And even the people in Texas who've taken his side seem to sort of be like, oh, yeah, well, unfortunately, he's the guy we got. Who did the framers of the Constitution say could not own a gun? The historical restrictions on firearms possession were largely focused on people whose society deemed dangerous back then. So, for example, people who would not take loyalty oaths to the new government were disarmed. Those who stayed

neutral during the American Revolution were disarmed. And then there were groups of people who were disarmed based on their religion, their political view, their ethnicity, or some other category. So, for example, Quakers who refused to pay taxes were disarmed. And then there were groups of people who were viewed to be dangerous and were disarmed in ways that we would never do today. So for example, American Indians, slaves, and freed slaves. These policies reflect 18th century values that we'd agree are repugnant today. And one of the oddities of this Bruin test is that the Supreme Court is forcing us to look back to these laws that were racially or religiously motivated and try to analogize today's laws to them. Justice Clarence Thomas wrote the Bruin opinion.

How does that fit into his broader legal opinions around gun laws? Well, you know, even before Bruin, Justice Thomas had penned a series of opinions that signal that he has a pretty broad view of the Second Amendment. You know, the Supreme Court has a lot of discretion in whether to take cases. And before Bruin, they had rejected about 80 petitions to intervene in Second Amendment cases. And in some of those, Justice Thomas thought the Supreme Court should have taken the case. And he wrote an opinion that he then filed to explain his reasoning. And in those opinions, which ran the gum up from public carry restrictions to restrictions on certain types of weapons, he made very clear that he holds a very broad vision for what the Second Amendment protects. And so in that regard, his opinion in Bruin is consistent with what we knew from before.

Justice Thomas is an originalist. So are at least some of the other Republican appointed justices on the bench. Is this originalism at work? Is this originalism out in the wild? It's a complex question to answer because there is not just one originalism. There are as many flavors of originalism as there are flavors of ice cream at Ben & Jerry's. Some originalists look to the original intent of the drafters of the Second Amendment in the Constitution. Others look for what the words that are in the Second Amendment would have meant to the general public back then. Bruin, in my view, departed from these other versions of originalism. What it did was it made a narrow historical analogical inquiry, a narrow historical inquiry, the sole input for deciding the constitutionality of gun laws

when the Second Amendment applies. It said that the constitutionality of a modern weapons restriction turns primarily on whether or not that law is similar enough to things that we did back in 1791. And I know of no other area of constitutional rights adjudication that employs that sort of analysis

as the sole means of determining whether or not a law is consistent with the Constitution. How do you think, with all of your years of experience on this, how do you think the Supreme Court is going to rule in Rahimi? It's always impossible to predict which way cases like this will turn out. I think the Supreme Court can be unpredictable. And I'm going to be listening very closely during oral arguments to see if any of the justices tip their hands. As I'm out and about and talking to experts, I think that a lot of people think that the Supreme Court might be reversing the lower court and finding that this law is perfectly constitutional.

But I'm not willing to speculate. Fair play. Eric Rubin is a professor at Southern Methodist University's Dedman School of Law and a Brennan Center fellow. Now, throughout this episode, we've heard the argument that Zeki Rahimi maybe should not have a gun. And it turns out, Zeki Rahimi agrees. We learned today that back in July, in a handwritten letter from jail addressed to Dear Judge and DA, Zeki Rahimi apologized for his actions,

pinning his behavior on his impoverished upbringing and bullying he experienced as a child. In that letter, he vowed to get an education so he could work to support his family. He also promised, quote, to never break any laws again, to stay away from the wrong circle, and to stay away from all

firearms and weapons. Halima Shah produced today's episode and Amina El-Sadi edited it. Our engineer is Rob Byers, and our fact checkers are Serena Solon and Laura Bullard. I'm Noelle King. It's Today Explained. Thank you.