DOJ seeks fast-track Supreme Court review of ruling against gun ban for people under domestic violence restraining orders

The Justice Department on Friday asked the Supreme Court to fast-track its consideration of a recent appeals court ruling that deemed unconstitutional a federal law barring gun possession by those under domestic violence restraining orders.

“The presence of a gun in a house with a domestic abuser increases the risk of homicide sixfold,” US Solicitor General Elizabeth Prelogar wrote in her petition Friday, urging the high court to decide before its summer recess whether to take up the case.

The 5th US Circuit Court of Appeals said in February that the 1996 law was unconstitutional, and while the ruling applies only to Texas, Louisiana and Mississippi, advocates worry it will have wide implications, including that it will discourage victims from coming forward.

The circuit court cited the major Second Amendment ruling handed down by the Supreme Court’s conservative majority last year that laid out a new test for lower courts to use to analyze a gun regulation’s constitutionality.

Prelogar told the Supreme Court on Friday that the 5th Circuit’s reasoning was wrong and the high court should take up the case so “that it can correct the Fifth Circuit’s misinterpretation of Bruen,” referring to last summer’s Supreme Court opinion.

The high court’s majority opinion in June said that part of the test was whether a gun restriction had a parallel to the regulations in place at the time of the Constitution’s framing.

The 5th Circuit said, with its opinion regarding the domestic violence gun restriction earlier this year, that the prohibition on alleged abusers lacked that kind of historical parallel and therefore was unconstitutional.

If the 5th Circuit’s “approach were applied across the board,” Prelogar wrote, “few modern statutes would survive judicial review; most modern gun regulations, after all, differ from their historical forbears in at least some ways.”

At the time of the circuit court ruling, Attorney General Merrick Garland said in a statement that Congress had determined the gun ban statute “nearly 30 years ago” and signaled the department’s plan to appeal the ruling.

“Whether analyzed through the lens of Supreme Court precedent, or of the text, history, and tradition of the Second Amendment, that statute is constitutional. Accordingly, the Department will seek further review of the Fifth Circuit’s contrary decision,” he said.

Guns are used to commit nearly two-thirds of intimate partner homicides, the Centers for Disease Control and Prevention has said. A 2021 study found that the majority of mass shootings are also linked to domestic violence.

Though some of the states covered by the appeals court have similar state law restrictions, the new ruling undermines a crucial tool that survivors have to protect themselves from their abusers. If the 5th Circuit’s logic were adopted nationwide by the US Supreme Court, the consequences would be devastating, advocates say.

“People are going to know that their abuser still has their gun. They’re going to continue to live in absolute, abject fear,” said Heather Bellino, the CEO of the Texas Advocacy Project, which works with victims of domestic violence. “They are going to be afraid to get a protective order, because now that gun’s not going away.”