A strike against the GCA of 1968 as amended – UPDATED

B.L.U.F. — Parts of the GCA of 1964 have been found unconstitutional

7. It shall be unlawful for any person—
   1. who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
   2. who is a fugitive from justice;
   3. who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));
   4. who has been adjudicated as a mental defective or who has been committed to a mental institution;
   5. who, being an alien—
      1. is illegally or unlawfully in the United States; or
      2. except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(26)));
   6. who has been discharged from the Armed Forces under dishonorable conditions;
   7. who, having been a citizen of the United States, has renounced his citizenship;
   8. who is subject to a court order that—
      1. was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
      2. restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
      3. 1. includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
         2. by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or
   9. who has been convicted in any court of a misdemeanor crime of domestic violence,

   to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

This is where the questions on the 4473 come from. This is part of 18 U.S. Code § 922 – Unlawful acts.

Zackey Rahimi is not a good person. He seems to be a pretty nasty piece of work from his pre-sentencing report. Regardless, he challenged his conviction as a prohibited person in possession of a firearm on constitutional grounds.

Between December 2020 and January 2021, Rahimi was involved in five shootings in and around Arlington, Texas.1 On December 1, after selling narcotics to an individual, he fired multiple shots into that individual’s residence. The following day, Rahimi was involved in a car accident. He exited his vehicle, shot at the other driver, and fled the scene. He returned
to the scene in a different vehicle and shot at the other driver’s car. On December 22, Rahimi shot at a constable’s vehicle. On January 7, Rahimi fired multiple shots in the air after his friend’s credit card was declined at a Whataburger restaurant.

Officers in the Arlington Police Department identified Rahimi as a suspect in the shootings and obtained a warrant to search his home. Officers executed the warrant and found a rifle and a pistol. Rahimi admitted that he possessed the firearms. He also admitted that he was subject to an agreed civil protective order entered February 5, 2020, by a Texas state court after Rahimi’s alleged assault of his ex-girlfriend. The protective order restrained him from harassing, stalking, or threatening his ex-girlfriend and their child. The order also expressly prohibited Rahimi from possessing a firearm.

A federal grand jury indicted Rahimi for possessing a firearm while under a domestic violence restraining order.

Rahimi claimed that 922(g)(8) was unconstitutional. The district court disagreed and found him guilty. Rahimi then appealed and the fifth circuit upheld his conviction.

After Bruen the fifth circuit court withdrew its opinion and ordered this case back with supplemental briefings and to expedite the case for oral arguments.

In the original appeal the government argued that United States v. Emerson, 270 F.3rd 203 (5th Cir. 2001) had already argued the constitutionality of 922(g)(8). In 2001 the fifth circuit applied a means-end scrutiny (not documented) and determined that 922(g)(8) was narrowly tailored to the goal of minimizing the threat of lawless violence.

Because the law was “narrowly tailored” and had an acceptable goal, the circuit court “balanced” Emerson’s rights away.

Bruen says that means-end is unacceptable when analyzing second amendment cases.

On February 2nd, 2023 the Fifth Circuit court of appeals issued this opinion on United States of America v. Zackey Rahimi

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 Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022), it is not.

This is another brick. The wall of gun control laws is being dismantled. Mr. Gun Control, tear down the wall!

And he isn’t going to be given a choice.

So far, the biggest loss we’ve suffered is in the second circuit where they have issued saysstays against injunctions against the CCIA.

A huge difference from even a few years ago.

Update: Changed it from GCA of 1964 to GCA of 1968

21-11001 5th Cir Court of Appeals, USA v Rahimi