Is it Illegal to Have a Gun While Subject to a California Domestic Violence Restraining Order?
California law provides that a person subject to a California domestic violence restraining order “shall not own, possess, purchase, or receive a firearm or ammunition” while the restraining order is in effect. If a person violates this law, known as Family Code section 6389, it is a crime punishable by Penal Code section 29825. A California domestic violence restraining order can be issued against anyone if there is proof of past acts of abuse.
But a recent decision by the United States Supreme Court may affect whether section 6389 is deemed unconstitutional based on Second Amendment grounds. The decision by the Court was made last month. In the decision, entitled United States v. Rahimi, the justices decided to hear next term, whether the United States Court of Appeal for the Fifth Circuit was correct in holding that bans on having a gun while subject to a restraining order violates the Supreme Court’s most recent Second Amendment decision, N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen (2022) 142 S.Ct. 2111. In that decision, the justices held that to determine the constitutionality of a law limiting gun use, it is necessary to look at the nation’s history of gun control laws.
The Fifth Circuit issued its decision on February 2, 2023, after the Supreme Court ruled in its blockbuster Bruen case. Relying on Bruen, the Fifth Circuit said 3-0 that 18 U.S.C. section 922, subd. (g)(8), which bars people from possessing any firearm or ammunition while subject to a restraining order, is unconstitutional.
Defendant Rahimi pled guilty to possessing a firearm while under a domestic violence restraining order but appealed the guilty judgment that resulted after the Supreme Court’s Bruen case. Rahimi had been involved in five shootings in and around Arlington, Texas between December 2020 and January 2021. This was after a restraining order had been entered against him in Texas state court after his alleged assault of his ex-girlfriend.
People who are subject to domestic violence restraining orders have not, necessarily, committed a crime, although defendant Rahimi’s shooting spree probably constituted a series of crimes and his possession of a gun was independently another crime. Yet he won at the Fifth Circuit. Yet Californians still cannot have guns while a restraining order is in place. But if the justices affirm the Fifth Circuit’s decision, the constitutionality of California’s Family Code section 6389 will come into question. That would result in the overturning of a California Court of Appeal case, Altafulla v. Ervin (2015) 238 Cal.App.4th, that states that “courts have found that ‘reducing domestic violence is a compelling government interest . . . and [a] temporary prohibition, while the [restraining] order is outstanding, is narrowly tailored to that compelling interest’”.
The Supreme Court is now in recess and will not reconvene until the first Monday in October. The verdict on the Fifth Circuit’s decision might not come down until June of next year. Until the decision on the case, therefore, possessing or using a gun while subject to a California domestic violence restraining order remains a crime, regardless of whether the restraining order is temporary or is issued following a contested hearing.
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