By Andréa Vieira
In 2019, the Supreme Court of Nevada decided Andersen v. Eighth Judicial District Court, 135 Nev. 321 (Nev. 2019). Michael D. Pariente said this about the decision: “The Andersen decision has undeniably had the most significant impact on firearm laws in Nevada since 1864.” See The Impact of the Andersen Decision on Firearm Laws in Nevada, Nevada Lawyer, June 2022.
Andersen made first-offense domestic battery a serious offense that required a jury trial because the effect of NRS 202.360 meant that a person convicted of misdemeanor domestic violence could no longer possess firearms. See Id. The Supreme Court of Nevada reasoned that such a result implicated the United States and Nevada constitutional rights to bear arms for convicted persons. See Id.
Enter Rahimi, and Rahimi himself who between December 2020 and January 2021 was part of five different shootings in and near Arlington, Texas. United States v. Rahimi, 61 F.4th 443, 448 (5th Cir.), cert. granted, 143 S. Ct. 2688 (2023). These shootings included firing multiple shots into the residence of one of his narcotics customers, shooting up another vehicle after he was involved in a car accident, shooting at a constable’s vehicle, and firing shots into the air after his friend’s credit card was declined at Whataburger. Id. at 448-449.
Officers got a warrant to search Rahimi’s home where they found a rifle and a pistol. Id. at 449. Rahimi admitted the firearms were his and that he was the subject of a domestic violence related civil protective order preventing him from possessing a firearm. Id. A federal grand jury indicted Rahimi for possessing a firearm under a domestic violence restraining order, under 18 U.S.C.A. § 922(g)(8). Rahimi ultimately pled guilty, but later raised a facial constitutional challenge to § 922(g)(8).
In a “hold my beer” moment for the expansion of firearms rights, the United States Court of Appeals for the Fifth Circuit determined that the Second Amendment rendered § 922(g)(8) unconstitutional. Id. at 488. In plain terms, in Rahimi, the Fifth Circuit held that it was unconstitutional to prohibit firearm possession resulting from restraining orders that had been issued through civil proceedings. Id. at 454, 461.
The Rahimi court based its analysis on N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, ––– U.S. ––––, 142 S. Ct. 2111 (2022), which announced a new standard for determining the constitutionality of firearms regulations. Prior to Bruen, courts engaged in a two-step analysis, referred to as means-end testing, where courts first asked whether a law fell within the scope of a Second Amendment right, and if so, applied intermediate or strict scrutiny. Rahimi, 61 F.4th at 448. Bruen abandoned the means-end test requiring the government to “affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” to Id. at 450.
Viewing the case under Bruen, the Fifth Circuit court reversed its own decision upholding the constitutionality of § 922(g)(8) because its examination of the history and tradition of firearm law back through the 17th century revealed that the government failed to demonstrate that § 922(g)(8) fit within “our Nation’s historical tradition of firearm regulation.” Id. at 460. The court made much of the fact that Rahimi’s protective order stemmed from a limited civil proceeding, instead of a criminal conviction. Id. at 458-59.
The future of Rahimi rests with the Supreme Court of the United States.
The United States Supreme Court granted cert. in Rahimi and heard oral arguments on November 7, 2023. The United States Solicitor General argued that the history and tradition of firearms allowed for the government to regulate the possession of firearms by “dangerous” persons. The Court spent significant time exploring who should determine the definition of dangerous and how.
If the Supreme Court reverses Rahimi, Andersen will stand as the most significant decision on Nevada firearms law, but if Rahimi stands, any Nevada laws making it a crime to possess firearms because of a court order issued through civil proceedings, like domestic violence protective orders, could be in jeopardy.
About the author
Andréa Vieira is a civil rights and criminal defense attorney at The Vieira Firm, a law firm dedicated to civil rights and social justice.
About the article
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This article was originally published in the Communiqué (Feb. 2024), the official publication of the Clark County Bar Association. See https://clarkcountybar.org/about/member-benefits/communique-2024/communique-feb-2024/.
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