The Washington PostDemocracy Dies in Darkness

Opinion Revised ruling on guns for domestic offenders just makes things worse

James C. Ho, a judge on the U.S. Court of Appeals for the Fifth Circuit, during a panel discussion hosted by the Federalist Society in Washington in November. (Shuran Huang for The Washington Post)
5 min

The Fifth Circuit could use a lesson in the first law of holes: When you’re in one, stop digging.

Last month, the federal appeals court issued a terrible Second Amendment ruling, striking down the federal law that prohibits people under domestic violence restraining orders from having guns. The Fifth Circuit had previously upheld the law, but said it was compelled to change course by a 2022 Supreme Court ruling that requires judges to search for historical analogues to modern gun restrictions.

Now, the appellate panel has given itself a do-over, releasing a decision that manages to make matters even worse. In particular, the ruling includes an expanded concurrence from Judge James C. Ho that questions the fairness and wisdom of the law, known as Section 922(g)(8).

“Scholars and judges have expressed alarm that civil protective orders are too often misused as a tactical device in divorce proceedings — and issued without any actual threat of danger,” wrote Ho, who was named to the bench by President Donald Trump.

Spouses can lie about being victims of domestic violence for tactical advantage, Ho observed; meanwhile, judges might not want to take the career risk of refusing to issue such orders. “That makes it difficult to justify § 922(g)(8) as a measure to disarm dangerous individuals,” he said.

His point was taken up in the revised panel opinion, by Judge Cory T. Wilson, another Trump appointee. (Judge Edith Jones, a Reagan appointee, was the third member.) Wilson noted that the law “works to disarm not only individuals who are threats to other individuals but also every party to a domestic proceeding (think: divorce court) who, with no history of violence whatever, becomes subject to a domestic violence restraining order that contains boilerplate language.” Therefore, the court said, the law can’t be compared to colonial-era “going armed” laws that allowed seizure of weapons from those terrorizing the populace.

Let’s review the facts in the case at hand. Zackey Rahimi went on a shooting rampage in Texas. At the time, he was subject to a protective order because he was accused of dragging his girlfriend into his car, shooting at an individual who witnessed the assault, and warning the girlfriend that he would shoot her if she squealed. A judge — at a hearing Rahimi chose not to attend — specifically found that Rahimi represented a “credible threat” to the girlfriend’s safety.

Sounds to me like a measure to disarm dangerous individuals.

Ho didn’t stop there. In fact, the law might make things less safe for women fearing domestic violence, he suggested, because judges frequently issue “mutual” protective orders that would leave women unable to use guns to defend themselves.

“The net result of all this is profoundly perverse, because it means that § 922(g)(8) effectively disarms victims of domestic violence,” Ho argued. “What’s worse, victims of domestic violence may even be put in greater danger than before. Abusers may know or assume that their victims are law-abiding citizens who will comply with their legal obligation not to arm themselves in self-defense. … Meanwhile, the abusers are criminals who have already demonstrated that they have zero propensity to obey the dictates of criminal statutes. As a result, § 922(g)(8) effectively empowers and enables abusers by guaranteeing that their victims will be unable to fight back.”

It is hard to imagine an argument that has things more backward. Congress passed § 922(g)(8) in 1994 precisely because it was concerned about the impact of domestic violence, and the grim reality that gun possession made it far more likely that a woman would be killed by her abuser.

How, exactly, does Ho know better? How is that his job?

Consider some facts he didn’t mention. As Everytown for Gun Safety reports: “70 women in America are shot and killed by an intimate partner in an average month — and the presence of a gun in a domestic violence situation makes it five times as likely that a woman will be killed.”

To be clear, Ho wasn’t trying to minimize the seriousness of domestic abuse — just, he said, to find ways to protect victims “without offending the Second Amendment framework set forth in Bruen,” the Supreme Court ruling. “I write separately to explain how respect for the Second Amendment is entirely compatible with respect for our profound societal interest in protecting citizens from violent criminals,” he noted.

Ho’s proposed solution isn’t to let domestic abusers off the hook — it’s prosecuting them to the max. “Those who commit or criminally threaten domestic violence have already demonstrated an utter lack of respect for the rights of others and the rule of law,” he wrote. “So merely enacting laws that tell them to disarm is a woefully inadequate solution. Abusers must be detained, prosecuted, and incarcerated.”

Certainly, some situations call for prosecution, and perhaps even pretrial detention. But Congress made an additional determination: that it is sometimes necessary to protect potential victims through civil proceedings. The Ho opinion, said Eric Tirschwell, director of litigation for Everytown, “just seems to be this judge stretching for anything he can find to try to suggest there are problems with using the civil justice system to protect victims of domestic violence. He seems to think the only proper remedy for dealing with threats of domestic violence is criminal prosecution, without any appreciation for the complexities that make that not a viable solution.”

The Supreme Court, with its decision in Bruen, imposed an uncomfortable historical straitjacket on policymakers. The Fifth Circuit, in Rahimi, tied the restraints even tighter. For better or worse, this won’t be the last word.