How The Supreme Court's Next Gun Ruling Could Impact Mass Shootings

The Supreme Court will hear oral arguments in a landmark case next month that will have huge implications for more than domestic violence.
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On June 8, 2016, Phoukeo Dej-Oudom asked a family violence commissioner at Clark County Family Court in Las Vegas to grant a restraining order against her soon-to-be-ex-husband, Jason.

“Throughout the marriage, the children’s lives as well as mine have been threatened,” the 35-year-old woman wrote. “Guns have been pulled out and pointed to our heads multiple times.”

Commissioner Amy Mastin denied the application. The court later issued a statement saying that the threats Dej-Oudom described didn’t meet statutory requirements for a restraining order because they took place years before, outside the state of Nevada — despite the fact that the application also described recent threatening phone calls and text messages, storming into her place of work and vows to abscond with their three children.

Semi-automatic rifles and and hand guns are seen for sale at Capitol City Arms Supply on Jan. 16, 2013, in Springfield, Illinois.
Semi-automatic rifles and and hand guns are seen for sale at Capitol City Arms Supply on Jan. 16, 2013, in Springfield, Illinois.
via Associated Press

Three weeks later, police found Dej-Oudom’s dead body near a pharmacy parking lot with a gunshot wound to the head. Several hours later, police entered an apartment where they found the bodies of their three children, age 9, 14, and 15, along with that of Jason Dej-Oudom, the shooter.

Next month, the Supreme Court will hear oral arguments in United States v. Zackey Rahimia landmark case that will decide whether it’s constitutional to strip gun rights from people under protection orders for domestic violence.

But the conservative court’s decision in that closely watched case will also impact the country’s ability to prevent mass shootings, potentially upending both federal and state laws designed to keep firearms out of the hands of people like Jason Dej-Oudom at moments when their intimate partners and families are at their most vulnerable.

While high-casualty shootings at public places attract major media attention and notoriety, researchers say most mass shootings look much more like Dej-Oudom’s — crimes of passion carried out against family members, after a long history of non-fatal violence.

The perpetrator is almost always a man. The primary victim is usually an intimate partner and almost always a woman. The other victims are generally family members, typically children, who may be either targets of the violence or just bystanders. Researchers sometimes refer to the phenomenon as “familicide.”

At least 54% of mass shootings in the decade between 2009 and 2018 involved domestic violence, according to data collected by the Gun Violence Archive and analyzed by Everytown for Gun Safety, a reform group.

“They tell them, ‘you can’t have a gun’ — but nobody checks. They really get to keep the gun by default. It’s like the honor system.”

- April Zeoli, University of Michigan School of Public Health

“Many people equate mass shootings with random acts of violence, but our analysis shows that most mass shootings aren’t at all random,” said Everytown’s senior director of research, Sarah Burd-Sharps. “Nearly half of mass shooters shoot a current or former intimate partner or family member as part of their rampage.”

About half of all domestic violence victims don’t report the incidents they experience to police, according to the National Crime Victimization Survey. Those who do seek legal help to protect themselves, however, find that the rules for disarming a suspected domestic abuser are complex, vary widely across jurisdictions and have historically allowed some perpetrators to slip through glaring loopholes.

Possessing a firearm after a conviction for a domestic violence offense or while subject to a protective order for domestic violence are both felonies under federal law. But although federal law currently bars people subject to protection orders for domestic abuse from possessing guns, the state courts that issue those orders don’t always confiscate firearms from abusers.

“They tell them, ‘you can’t have a gun’ — but nobody checks,” said April Zeoli, a scholar at the University of Michigan who studies the impact of state laws on gun safety. “They really get to keep the gun by default. It’s like the honor system.”

And for decades, federal law limited its definition of domestic violence to include people who were married, cohabiting or had children together. Offenses committed by dating partners didn’t count as “domestic violence” for the purposes of stripping gun rights — an outdated definition now widely known as the “boyfriend loophole.” LGBTQ+ relationships have often fallen outside the scope of the federal government’s definition of domestic violence as well.

Last year’s bipartisan Safer Communities Act revised the federal government’s definition of domestic violence to include dating partners.

But some of the biggest research-backed progress in limiting domestic-violence-related firearm deaths has come at the state level, according to Zeoli. And many states have yet to pass aggressive laws limiting firearm access to domestic abusers, let alone expand the legal definition of domestic violence to include dating partners.

There are two broad categories of restraining orders to protect people from domestic violence ― temporary “ex parte” restraining orders that don’t require a judge to sign off, and longer-lasting protective orders issued by a court.

The federal law forbidding domestic abusers from possessing guns does not apply to ex parte orders. Many states do not strip gun rights based on those orders either.

“When women are in the most danger of domestic violence is when they’re trying to leave an abusive relationship,” said Liza Gold, a psychiatrist at Georgetown University School of Medicine and editor of the book “Gun Violence and Mental Illness. “And when they’re trying to do that, the first thing that happens is they try to get a restraining order, and it’s usually a temporary one. So it’s leaving out the most vulnerable group.”

States that have passed laws to strip gun rights from abusers based on ex parte orders saw a 13% drop in intimate partner homicides, according to a 2018 study co-authored by Zeoli. Including dating partners in those laws was associated with the same percentage decrease in intimate partner homicides.

Researchers also saw a drop of 12% when laws included a provision forcing the offender to give up their firearms. The biggest drop of all, at 23%, occurred after states passed laws barring gun access to people convicted of nonspecific violent misdemeanors.

Muddling The Path To Reform

Results like those point researchers and reform advocates toward an obvious path to reform: Make it easier to disarm abusers.

“The most important public policy implication of this research is we need laws that protect survivors of domestic abuse,” Burd-Sharps of Everytown said. “These laws that decrease access to guns for domestic abusers can also decrease mass shootings.”

But the movement to strengthen protections for victims and survivors of domestic violence is facing a challenge bordering on the existential following the Supreme Court’s bombshell gun rights ruling in New York State Pistol Assn v. Bruen last year.

Writing for the 6-3 conservative majority, Justice Clarence Thomas set a new standard for assessing the constitutionality of gun restrictions. Courts would no longer balance the individual Second Amendment right to bear arms against government interest in protecting public safety.

Instead, the only constitutional gun restrictions under the new standard are those that can trace their origins to a similar law that dates back to somewhere between 1791, when the Bill of Rights passed, and the end of the Civil War.

The ruling opened the door to challenges against dozens of longstanding gun regulations, including state-level assault weapons bans, age restrictions on handgun purchases and a ban on “ghost” guns.

Last year, the 5th U.S. Circuit Court of Appeals delivered one of the most surprising decisions, ruling that the federal law barring people subject to protection orders for domestic violence from possessing guns amounted to an unconstitutional violation of the Second Amendment. The Supreme Court agreed to review the decision this summer and will hold oral arguments on Nov. 7.

The decision outraged reformers partly because the defendant, Zackey Rahimi, so clearly exhibits the traits that make it dangerous to allow domestic abusers easy access to guns.

The protective order that barred him from contact with his former girlfriend or their young child informed him that it would be a federal crime to possess guns, but contained no forfeiture provision.

He went on to fire guns at people in public at least six times while under the order, according to court filings and police records obtained by HuffPost.

He allegedly fired repeatedly at a woman he lured into a parking lot, sprayed a house with bullets from an AR-15 over social media comments, shot at two drivers in separate road rage incidents, and fired into the air in a residential neighborhood in front of children and outside a Whataburger after it declined a friend’s credit card.

Unless the Supreme Court rules otherwise, Rahimi can now theoretically possess firearms. In practice, however, he’s locked up at Green Bay Jail in Fort Worth and faces a total of five indictments in the state of Texas: three for aggravated assault with a deadly weapon, one for recklessly discharging a firearm and one for possession of fentanyl.

A decision in his favor would confirm that Thomas’ at times vague ruling was just as radical as many champions hoped and most reformers feared. It would reverse decades of lawmaking to shield people from domestic violence that reformers still view as incomplete.

But some legal scholars say the Rahimi case is more likely to mark the first time that the Supreme Court sets limits on the Bruen ruling and its chaotic implementation by lower courts.

“Gun violence is preventable,” Zeoli said. “We have some laws that research suggests reduce intimate partner homicide, and potentially other types of gun violence. Hopefully we will continue to have those laws. We will see how the Supreme Court rules.”

Need help? In the U.S., call 1-800-799-SAFE (7233) for the National Domestic Violence Hotline.

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