Need a gun even though you have a domestic violence restraining order against you? No problem!

Literalism of recent federal appeals court decision threatens to upend reasonable gun control

February 9, 2023 7:34 am

Alex Wong/Getty Images.

The Serrano family returned home from a party in the misty early hours of Oct. 30, 2022. Beside Jesus, 51, were his son-in-law, his two adult daughters and two grandchildren. Their evening together was a cause for celebration: One of the Serrano daughters had recently escaped an abusive relationship with Joseph Castorena, who she alleged refused to let her see her family, threatening violence. She and Jesus had secured a restraining order against the man days before. 

Castorena, who had broken into the Serrano home, was hiding, armed with a loaded gun. 

In the onslaught that ensued, Castorena is alleged to have killed Jesus, his daughter Mariana, her husband, Ken Green, and a neighbor, Rodolfo Salgado, who left his RV to investigate the ruckus that awoke him. Castorena ran out of bullets, allowing the two orphaned girls and their aunt to survive.

In a case decided recently, United States v. Rahimi, the Fifth U.S. Circuit Court of Appeals held it unconstitutional for the government to ban those under domestic violence-related restraining orders — like Castorena — from possessing guns. 

The decision recklessly interpreted Supreme Court precedent, threatening to unravel vital protections against gun violence. 

Congress passed the now-overturned provision nearly 30 years ago to curtail the epidemic of domestic abuse that the criminal justice system had overlooked for centuries. Recent studies confirmed that the statute saves lives. American women are eight times as likely to be victims of intimate-partner homicide when their abusers can access firearms. And states with their own laws modeled after the prohibition — requiring subjects of abuse-related restraining orders to surrender weapons — have intimate-partner homicide rates 14% lower than their peers.  

In the Rahimi case, the court found that the U.S. Constitution guarantees Zackey Rahimi the right to possess a firearm, even after a court found him to be a credible threat to his ex-girlfriend. The Fifth Circuit relied on Bruen v. New York State Rifle & Pistol Association, an extreme decision that the Supreme Court issued last year. Bruen held that the government can only limit access to firearms in ways that are rooted in a “historical tradition.” 

The Fifth Circuit contends that this new standard required it to strike down any limitations on gun rights unless officials can point to strictly parallel laws enacted in the era of the nation’s founding. Nevermind that most states recognized a husband’s right to beat his wife until the late 1800s. 

The proper application of the historical tradition test must instead accommodate the revelations of progress. The U.S. Supreme Court has endorsed this approach in other contexts as recently as 2018, when it found that prohibitions against gender discrimination in the 1964 Civil Rights Act extend to those who are homosexual or transgender.

Applying the historical tradition test with a blind eye to social developments will restore an 18th century regime that is fatal to modern life: A nation that permits abusers to lawfully possess firearms because domestic violence was once not a crime; a society without internet-based background checks; or bans on bump stocks and ghost guns. It puts even basic gun protections, like those a Minnesota House committee approved Friday, into judges’ crosshairs. 

Moreover, the decision distorts the requirements of the legal test itself, which involves a search for laws that are merely “analogous.” The Supreme Court took pains to emphasize it was not “a regulatory straightjacket [that requires] a historical twin.” Indeed, laws dating back to America’s founding allowed individuals with reason to fear another’s violence to secure court protections that could compel the surrender of weapons. By fixating on operational differences between those laws and the domestic violence-related prohibition at issue, the court failed to grasp the essence of analogy.   

In the weeks after the Serrano family massacre, the two Fifth Circuit judges drafted their decision inside a courthouse insulated from America’s gun violence problem — a “sensitive place” that the Supreme Court has confirmed may ban weapons without being subject to the historical tradition test. 

For their absurd literalism, they asked the rest of us to pay the price. 

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David Lamb
David Lamb

A writer, book editor, and law student, David Lamb is a member of the University of Minnesota Law School’s Gun Violence Prevention Clinic.