United States v. Rahimi in a Human Rights Lense: The Supreme Court’s Opportunity to Remedy Its Stance on Gender-Based Violence

I. Introduction

The case of United States v Rahmi is a case that is at the intersection of constitutional interpretation and the imperative to address domestic violence. At the center of this case is the question of whether restrictions on firearm ownership for individuals subject to civil restraining order violate the Second Amendment. With alarming statistics linking gun violence to domestic abuse looming in the background, Rahimi’s legal journey emphasizes the need to balance individual rights with public safety concerns. As the Supreme Court gears up to render its decision, Rahimi has vast implications for legal precedent and the protection of domestic abuse victims.

II. Background
A. United States v. Rahimi

One of the cases being closely watched at the Supreme Court this year is United States v. Rahimi, which asks the Court to decide the constitutionality of federal legislation under their new expansive interpretation of the Second Amendment established in N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022) (“Bruen”).[1] While Rahimi is being argued under the Second Amendment, the case is inseparable from domestic violence issues.

Statistics clearly show the correlation between gun violence and domestic violence. More than half of female homicide victims are killed by a current or former male intimate partner, and 96% of murder-suicide victims are female.[2] Guns are used in more than 50% of domestic violence related homicides.[3]  A victim or survivor of domestic violence is five times more likely to die when an abusive partner has access to a gun.[4] These shocking statistics clearly evidence how important it is to address the impacts of expansive gun rights on domestic violence victims and incidents.

Over the span of two months, Zackey Rahimi was the perpetrator of five shootings in Arlington, Texas.[5] Arlington police executed a search warrant on Rahimi, obtained in connection with the shootings, and discovered a rifle and a pistol.[6] While police were executing the warrant, Rahimi admitted that the guns were his and that he was subject to a civil protection order which was issued after he assaulted his ex-girlfriend.[7]

Rahimi’s restraining order prohibited him from “… “[c]ommitting family violence, [g]oing to or within 200 yards of the residence or place of employment” of his ex-girlfriend, and “[e]ngaging in conduct . . . including following the person, that is reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass” either his ex-girlfriend or a member of her family or household.”[8] The protection order further prohibited him from owning or possessing a firearm.[9]

Following the discovery of this information, the evidence was presented to a federal grand jury, which indicted Rahimi under 18 U.S.C. §922(g)(8).[10] Under this statute, it is unlawful for any person who is subject to a court order that “restrains such persons from harassing, stalking, or threatening an intimate partner” and includes a finding that the person represents a credible threat to the physical safety of such partner or “by its terms explicitly prohibits the use, attempted use, or threatened use of physical force” against the partner.[11] Under the statute, it is clear by the nature and language of Rahimi’s restraining order that he would be in violation of §922(g)(8), and his conviction would stand.[12]

Rahimi challenged his indictment on the basis that §922(g)(8) was unconstitutional under the Second Amendment. The trial court dismissed his challenge.[13] On appeal, the Fifth Circuit also dismissed his constitutional claim.[14] Rahimi subsequently filed a petition for rehearing en banc.[15]

While the petition was pending, the Supreme Court decided Breun.[16] Prior to Bruen, the inquiry into whether a restriction on the right to bear arms was constitutional was a two-prong test that looked at history and if the restriction was well-tailored to achieve an important government interest.[17] Bruen removed the second prong and said the only permissible restrictions are those rooted in history, and thus for a law to be constitutional there must be a historically analogous law.[18] Due to this change in precedent, the 5th Circuit granted the hearing and decided that under Bruen’s holding, §922(g)(8) was unconstitutional and the Court ruled in favor of Rahimi.[19]

The Supreme Court granted the United States petition for a writ of certiorari in June of 2023 and heard oral arguments in November of that year.[20] The Court is expected to release its ruling in June or July of 2024.[21]

B. Gender-Based Violence as a Human Rights Issue

Gender-based violence is a serious human rights issue.[22] Nearly one out of every three women worldwide has been subjected to physical or sexual violence by an intimate partner.[23] Further, 38% of all murders of women are committed by their partner.[24] In the United States, about one out of every four women will at some point be victims of domestic violence.[25] A person subject to domestic violence is twice as likely to suffer from depression and substance abuse.[26] Domestic violence also has substantial effects of those not directly experiencing the violence, as children who are exposed to domestic violence are a higher risk of both experiencing emotional and behavioral issues and becoming perpetrators and/or victims of domestic violence themselves.[27]

Gender-based violence implicates a multitude of human rights safeguarded by the Universal Declaration of Human Rights (UDHR) and other international human rights instruments.[28] UDHR Articles 1, 2, 3, 5, 7, and 25 respectively address the equality of all human being in dignity and rights; equality to all right an freedoms of the Declaration free from any distinction based on status; the right to life, liberty, and security of person; security against cruel, inhuman, or degrading treatment; the right to equal protection before the law; the right to a standard of living adequate for health and well-being.[29] These are all implicated by gender-based violence.[30]

In 1979, the UN adopted the Convention on the Elimination of All Forms of Discrimination Against Women Committee (CEDAW).[31]  In 1992, the CEDAW committee asserted that violence against women is a form of discrimination which seriously inhibits women’s ability to enjoy rights and freedoms the same as their male counterparts.[32] A year later,  in an effort to strengthen the “effective implementation” of CEDAW, the Declaration on the Elimination of Violence Against Women (DEVAW) was adopted.[33] DEVAW aimed to eliminate violence against women recognizing that it violates women’s fundamental freedoms.[34]

C. Gun Violence and Gender-Based Violence

The Fifth Circuit, and supporters of an expansive interpretation of gun rights, argue that a favorable ruling for Rahimi would not be the severe slight to domestic violence victims that it is purported to be.[35] Such proponents argue that because constitutional restrictions on gun ownership already apply to those convicted of misdemeanor and felony domestic abuse, expanding such restrictions would be in violation of the Second Amendment.[36]

Adopting this line of reasoning is very troubling. Often, abusers are not criminally convicted of domestic violence crimes.[37] Instead, they are usually restrained by civil protective orders, so many abusers would be allowed to keep their firearms, despite the judicial determination that they pose a threat worthy of restraining.[38] This is precisely what civil protection orders purport to do. Victims of domestic violence have a myriad of reasons why they may prefer their abuser to be civilly restrained instead of criminally charged and put in jail.[39] For instance, victims of abuse may rely on their abuser for fiscal support, they may not want their children to lose a parent, and they may fear testifying against their abuser in court.[40]

D. The Supreme Courts Jurisprudence on Gender-Based Violence

Rahimi presents the Supreme Court with an opportunity to correct its pattern of diminishing legislation aimed at remedying gender-based violence. The Supreme Court has attacked and diminished gender-based violence legislation in two other significant instances – United States v. Morrison (2000) and Town of Castle Rock v. Gonzales (2005).

United States v. Morrison

In United States v. Morrison (2000), the Supreme Court was asked to examine the constitutionality of a provision of the Violence Against Women Act, 42 U.S.C. § 13981, which provided a federal civil remedy for the victims of gender-motivated violence.[41] Despite the plethora of congressional findings that violence against women had a substantial impact on economic activity, the Supreme Court found that this statute was an unconstitutional use of Congress’s Commerce Clause power.[42]

Town of Castle Rock v. Gonzales

Just a few years later, the Supreme Court once again gutted legislation aimed at protecting domestic violence victims in Town of Castle Rock v. Gonzales (2005). The Supreme Court considered whether Jessica Gonzales’ due process rights had been violated by the police of Castle Rock failing to enforce a court-ordered restraining order.[43] The Court ultimately held that the police did not have to mandatorily enforce the restraining orders, and that Gonzales had no substantive property interest recognized under the Due Process Clause of the Fourteenth Amendment.[44] This holding essentially ignored the Colorado legislation which ensured that such enforcement was mandatory.[45]

III. Discussion

Similar to the pieces of legislation assessed in Morrison and Town of Castle Rock, the statute at issue in Rahimi, §922(g)(8), is legislation aimed at protecting domestic violence victims. Under §922(g)(8), individuals subject to domestic violence restraining orders can not own a firearm.[46] The Court has an opportunity to remedy the rights of domestic violence victims over their abusers’ rights to own firearms by finding that people subject to a domestic-violence order are not “law-abiding” citizens, and thus under Bruen, 18 U.S.C §922(g)(8) is still a constitutional restriction on citizens right to bear arms.

The Inter-American Court of Human Rights (IACHR) previously held that the United States was in violation of international human rights treatise because of its failure to adequately protect domestic violence victims.[47] The IACHR ordered that legislation be enacted and regulations be implemented to further protect victims of gender-based violence.[48] The United States and its actors – the Supreme Court being one – have a duty to ensure human rights protections for its citizens.[49]

While the Unted States has yet to adequately respond to this ruling issued over a decade ago, Rahimi is a prime opportunity for the Supreme Court to correct its failures.[50] To do this, the Supreme Court must find that §922(g)(8) is constitutional. Restricting people subject to domestic violence restraining orders from possessing firearms is the only logical ruling and the only ruling that will protect the human rights of domestic violence victims. When gun violence undoubtedly plays a substantial role in the perpetration and continuation of domestic violence, the Supreme Court would further be violating internationally respected human rights instruments and treatise.[51]

IV. Conclusion

If the Supreme Court upholds the Fifth Circuit’s decision in Rahimi and allows individuals subject to domestic violence restraining orders to own firearms, then it is cementing its stance on the human rights of domestic violence victims and will be furthering its violation of human rights. Restraining orders would essentially become useless instruments to protect victims of domestic abuse. There is no federal guarantee that protected parties are entitled to enforcement and, if the Supreme Court does not reverse the Fifth Circuit’s holding in Rahimi, individuals subject to domestic violence orders would be constitutionally protected in their right to own firearms.[52] The lack of reversal would not only leave abusers more protected, but could potentially lead to a rise in firearms being used in domestic violence disputes which could increase rates of injuries and deaths for victims of domestic violence. Thus, the Supreme Court must redirect its jurisprudence toward domestic violence legislation.

[1] Rachel Reed, Do people subject to restraining orders retain Second Amendment rights to own guns?, Oct. 31, 2023, https://hls.harvard.edu/today/supreme-court-preview-united-states-v-rahimi-to-test-second-amendment-and-gun-control/.

[2] Elizabeth Tobin-Tyler, Intimate Partner Violence, Firearm Injuries and Homicides: A Health Justice Approach to Two Intersecting Public Health Crises, Spring 2023, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC10209983/.

[3] Id.

[4] Kelly Roskam, Questions and Answers on U.S. v. Rahimi, the Major Gun Case Before the Supreme Court During its 2023–2024 Term, Oct. 10, 2023, https://publichealth.jhu.edu/2023/questions-and-answers-on-us-v-rahimi-the-major-gun-case-before-the-supreme-court-during-its-2023-2024-term.

[5] United States v. Rahimi, 61 F.4th 443, 448-49 (2023).

[6] Id. at 449.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] 18 U.S.C. §922(g)(8).

[12] Rahimi, 61 F.4th at 449.

[13] Id.

[14] Id.

[15] Id. at 448.

[16] Id. at 450.

[17] Roskam, supra note 4.

[18] Bruen, 597 U.S. at 19. “[T]he government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.”

[19] Rahimi, 61 F.4th at 450.

[20] SCOTUSblog, United States v. Rahimi, Nov. 7, 2023. https://www.scotusblog.com/case-files/cases/united-states-v-rahimi/.

[21] Roskam, supra note 4.

[22] UNCHR, Gender-based violence, https://www.unhcr.org/us/what-we-do/protect-human-rights/protection/gender-based-violence (last visited Feb. 30, 2024).

[23] World Health Org., Violence Against Women, Mar. 9, 2021. https://www.who.int/news-room/fact-sheets/detail/violence-against-women.

[24] Id.

[25] Martin Huecker et al, Domestic Violence, Apr. 9, 2023. https://www.ncbi.nlm.nih.gov/books/NBK499891/.

[26] World Health Org., supra note 23.

[27] Id.

[28] G.A. Res. 48/104, Declaration on the Elimination of Violence Against Women (December 20, 1993).

[29] G.A. Res. 217 (III) A, Universal Declaration of Human Rights (Dec. 10, 1948).

[30] “Women are entitled to the equal enjoyment and protection of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. These rights include, inter alia:

  1. The right to life;
  2. The right to equality;
  3. The right to liberty and security of person;
  4. The right to equal protection under the law;
  5. The right to be free from all forms of discrimination;
  6. The right to the highest standard attainable of physical and mental health;
  7. The right to just and favourable conditions of work;
  8. The right not to be subjected to torture, or other cruel, inhuman or degrading treatment or punishment.” G.A. Res. 48/104,

The preamble of the Declaration further states: “Noting that those rights and principles are enshrined in international instruments, including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination against Women and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment…” G.A. Res. 48/104, supra.

[31] U.N. Women, Convention of the Elimination of Discrimination against Women: Overview of the Convention, https://www.un.org/womenwatch/daw/cedaw/ (last visited Feb. 25, 2024).

[32] U.N. Human Rights, Gender-based violence against women and girls: OHCHR and women’s human rights and gender equality, https://www.ohchr.org/en/women/gender-based-violence-against-women-and-girls (last visited Feb. 25, 2024).

[33]Recognizing that effective implementation of the Convention on the Elimination of All Forms of Discrimination against Women would contribute to the elimination of violence against women and that the Declaration on the Elimination of Violence against Women, set forth in the present resolution, will strengthen and complement that process…” G.A. Res. 48/104, supra.

[34] Id.

[35] Brief for The National Rifle Association Of America, Inc. As Amicus Curiae In Support Of The Respondent, United States v. Rahimi 61 F.4th 443, 448-49 (2023) (No. 22-915).

[36] Id.

[37] Roskam, supra note 4.   

[38] Id.

[39] Id.

[40] Id.

[41] United States v. Morrison, 529 U.S. 598, 601 (2000). Christy Brzonkala sued Morrison and Crawford under this statute after they repeatedly raped and assaulted her.

[42] Id. at 613-14. The dissent discusses the “mountain of data” assembled by Congress that shows the effects of violence against women on interstate commerce. Id. at 628-29.

[43] Town of Castle Rock v. Gonzales, 545 U.S. 748, 750 (2005). Town of Castle Rock police failed to enforce Gonzales’ restraining order against her ex-husband which led to the murder of her three daughters by her ex-husband. Id. at 753-54.

[44] Id. at 768.

[45] Id.

[46] 18 U.S.C. §922(g)(8).

[47] Legal Momentum, Amicus Brief, Jessica Lenaham (Gonzales) v. United States, https://www.legalmomentum.org/amicus-briefs/jessica-lenahan-gonzales-v-united-states.

[48] Id.

[49] “By accepting the Convention, States commit themselves to undertake a series of measures to end discrimination against women in all forms, including:

  • to incorporate the principle of equality of men and women in their legal system, abolish all discriminatory laws and adopt appropriate ones prohibiting discrimination against women;
  • to establish tribunals and other public institutions to ensure the effective protection of women against discrimination; and
  • to ensure elimination of all acts of discrimination against women by persons, organizations or enterprises.” U.N. Women,

[50] ACLU of Colorado, U.S. Fails to Adequately Comply with Domestic Violence Recommendations Issued by Inter-American Commission on Human Rights, Groups Seek Justice for Domestic Violence Survivor and Policy Reforms at Hearing, https://www.aclu.org/press-releases/us-fails-adequately-comply-domestic-violence-recommendations-issued-inter-american (last visited Feb. 28, 2024).

[51] UN Women, supra, note 24; Tobin-Tyler, supra, note 3.

[52] See Town of Castle Rock, 545 U.S. at 768.