A three judge panel of the United States Court of Appeals for the Fifth Circuit struck down a law requiring objects of domestic violence restraining orders to surrender their guns. Good.

The law is a Federal statute. The plaintiff, Zackey Rahimi, was convicted of possessing a firearm while he was subject to a domestic violence restraining order. His convictionhad been upheld by the district court and a prior Fifth Circuit panel. Following the Supreme Court of the United States’ Bruen (2022) decision, the Fifth Circuit panel “withdrew its opinion and requested supplemental briefing on the impact of that case on this one.” After reconsidering Rahimi’s case in light of Bruen, the Fifth Circuit panel reversed itself and vacated Rahimi’s conviction.

The statute makes it unlawful…

“for any person[] who is subject to a court order that: 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 . . . to . . . possess in or affecting commerce, any firearm or ammunition . . . .

The panel consisted of Judges Edith Jones, James Ho, and Cory T. Wilson. Judge Wilson wrote:

Distilled to its essence, the provision operates to deprive an individual of his right to keep and bear arms once a court finds, after notice and a hearing, that the individual poses a “credible threat” to an intimate partner or her child and enters a restraining order to that effect. The covered individual forfeits his Second Amendment right for the duration of the court’s order. This is so even when the individual has not been criminally convicted of any offense and when the underlying proceeding is merely civil in nature….The Government fails to demonstrate that § 922(g)(8)’s restriction of the Second Amendment right fits within our Nation’s historical tradition of firearm regulation. The Government’s proffered analogues falter under one or both of the metrics the Supreme Court articulated in Bruen as the baseline for measuring “relevantly similar” analogues: “how and why the regulations burden a law-abiding citizen’s right to armed self-defense.”

Essentially the laws struck down is a pre-crime law, and a slippery slope to so called “red flag” laws, much in vogue with anti-gun advocates, in which the constitutional right to be armed can be removed because of a threat or suspicion that the individual will abuse that right. Many of the advocates of such laws would love to remove citizens’ First Amendment rights using the same reasoning, especially since they regard words as “harmful” making others “unsafe.”

The concurring opinion by Judge Ho noted,

… the Second Amendment has too often been denigrated as “a second-class right.”…In response, the Supreme Court has called on judges to be more faithful guardians of the text and original meaning of the Second Amendment. See N.Y. State Rifle & Pistol Association, Inc. v. Bruen, 142 S. Ct. 2111 (2022). Our court today dutifully follows the framework recently set forth in N.Y. State Rifle. I write separately to point out that our Founders firmly believed in the fundamental role of government in protecting citizens against violence, as well as the individual right to keep and bear arms—and that these two principles are not inconsistent but entirely compatible with one another. Our Founders understood that those who commit or threaten violence against innocent law-abiding citizens may be arrested, convicted, and incarcerated. They knew that arrest and incarceration naturally entails the loss of a wide range of liberties—including the loss of access to arms…So when the government detains—and thereby disarms—a member of our community, it must do so consistent with the fundamental protections that our Constitution affords to those accused of a crime. For example, the government may detain dangerous criminals, not just after conviction, but also before trial. Our laws also contemplate the incarceration of those who criminally threaten, but have not (yet) committed, violence. After all, to the victim, such actions are not only life-threatening—they’re life-altering. In sum, our Founders envisioned a nation in which both citizen and sovereign alike play important roles in protecting the innocent against violent criminals. Our decision today is consistent with that vision.

The government, in short, may not remove a primary right in the absence of due process and a criminal charge and conviction. That should not have been a difficult challenge: Between December 2020 and January 2021, Rahimi was involved in five shootings in and around Arlington, Texas.After selling narcotics to an individual, he fired multiple shots into that individual’s residence. When he was involved in a car accident following day, Rahimi exited his vehicle, shot at the other driver, and fled the scene. He returned to the scene in a different vehicle and shot at the other driver’s car. Later that month, Rahimi shot at a constable’s vehicle. The next month, Rahimi fired multiple shots in the air after his friend’s credit card was declined at a restaurant. Authorities didn’t need to use the restraining order to take Rahimi’s guns away, but they used instead a pre-crime measure that would be a precedent for removing a citizen’s right to bear arms despite the absence of an arrest or conviction.