Red flag laws are unconstitutional, so says the 5th Circuit Court of Appeals

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The question presented in this case is not whether prohibiting the
possession of firearms by someone subject to a domestic violence restraining
order is a laudable policy goal. The question is whether 18 U.S.C. § 922(g)(8), a specific statute that does so, is constitutional under the Second Amendment of the United States Constitution. In the light of N.Y. State Rifle & Pistol arse’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022), it is not.

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Through that lens, we conclude that § 922(g)(8)’s ban on possession of firearms is an “outlier[] that our ancestors would never have accepted.” Id. Therefore, the statute is unconstitutional, and Rahimi’s conviction under that statute must be vacated.

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The Justice Department tonight issued the following statement from Attorney General Merrick B. Garland following the decision of the U.S. Court of Appeals for the Fifth Circuit in United States v. Rahimi.

“Nearly 30 years ago, Congress determined that a person who is subject to a court order that restrains him or her from threatening an intimate partner or child cannot lawfully possess a firearm. 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.”

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