In an amicus brief filed Monday, the former jurists from Arizona, Connecticut, Delaware, New Hampshire, New York and Texas said the Fifth Circuit was wrong to find that the law was unconstitutional under the Supreme Court's recent precedent, as there are numerous historical analogs allowing the states to temporarily disarm lawbreakers and other dangerous people for the sake of others' safety.
The brief from the judges said laws disarming domestic abusers allow the courts to protect families who might otherwise be killed when an abuse victim seeks judicial assistance and quoted a sponsor of the law in saying, "All too often the only difference between a battered woman and a dead woman is the presence of a gun."
This is "common-sense reality," the judges wrote, saying the data has shown that domestic assaults with firearms are 12 times more likely to end in death than other assaults and that the period of time after an abuse victim seeks a way out — through divorce proceedings or otherwise — is full of intense emotions that could lead to more violence.
The judges also told the high court that such laws safeguard the integrity of judicial proceedings by preventing delays or other disruptions because of violence and said that under some laws, like Delaware's, an order disarming a domestic abuser speeds up the proceedings because the person being disarmed is entitled to a swift hearing on the matter.
"Provisions like this preserve the status quo pending a hearing and reduce the likelihood that an enraged abuser will harm or kill a victim for seeking relief," the former judges wrote. "At the same time, such provisions respect the due process rights of the alleged abuser by providing an expedited right to an adversary hearing on whether the restraint on firearm possession shall remain in place."
The case comes to the Supreme Court in the wake of its decision in New York State Rifle & Pistol Association v. Bruen
, in which justices by a 6-3 vote ruled that the government must prove a gun restriction is rooted in the historical record dating back to the 1791 ratification of the Second Amendment.In February, the Fifth Circuit withdrew its original decision in light of Bruen, ruling the Second Amendment did not allow the government to disarm Zackey Rahimi, a Texas man who was bound by a restraining order for knocking his girlfriend to the ground during a fight.
Last week, the government asked the high court to undo the Fifth Circuit's ruling, arguing that the Second Amendment's right to bear arms is not unlimited and that the government is allowed to disarm citizens who break the law.
In the former judges' amicus brief Monday, they argued that the country has historic precedent for disarming domestic abusers and others who break the law or are otherwise dangerous and present a credible threat to identified individuals.
The judges also urged the high court to limit itself only to the question briefed and presented by the parties — whether the law allowing for domestic abusers to be disarmed is constitutional. Going beyond that, the judges wrote, could disrupt state level courts and lawmakers who are still trying to digest and work with and around the high court's Bruen decision.
The former judges' brief was one of 36 briefs filed in the high court on Monday, including by the ACLU, California Gov. Gavin Newsom, U.S. senators and representatives.
"It's not rocket science: giving domestic violence abusers access to firearms will have deadly consequences for their partners, women, children, and the general public," Makennan McBryde, a legal associate at gun control nonprofit March For Our Lives, which filed another brief, said in a press release. "Bruen blew up centuries of Second Amendment jurisprudence, and Rahimi is the consequence; abusers carrying guns and hurting people is the consequence. If the Supreme Court doesn't overturn Rahimi, America's already horrific gun violence epidemic will only get worse, and that's exactly what our brief demonstrates for the court. The justices will have no choice but to face the survivors of domestic violence and gun violence, and every American, when they make their decision."
March For Our Lives' brief included stories from survivors of domestic violence involving firearms and of mass shootings committed by domestic violence perpetrators. Like the former judges' brief, it highlighted the country's history of disarming people who pose a danger to others.
Jonathan Diesenhaus of Hogan Lovells, who represents March For Our Lives, said in the press release, "The stories in this brief powerfully illustrate the devastating consequences brought about by gun violence at the hands of perpetrators of domestic violence."
Rahimi's attorney declined to comment Tuesday.
Am attorney for the former judges declined to comment Wednesday.
Representatives for the U.S. government could not immediately be reached for comment Tuesday.
Rahimi is represented by James Matthew Wright of the Office of the Federal Public Defender.
The government is represented by Elizabeth Prelogar of the U.S. Department of Justice.
The former judges are represented by Kathleen R. Hartnett, Julie M. Veroff, Patrick J. Haynden, Daniel Grooms, Adam M. Katz, Adam S. Gershenson, Rachel H. Alpert and Kimberley A. Scimeca of Cooley LLP.
The case is U.S. v. Rahimi, case number 22-915, before the Supreme Court of the United States.
--Additional reporting by Lilyanna D'Amato. Editing by Gemma Horowitz.
Update: This story has been updated with the former judges' response to a request for comment, and their counsel information.