The decision in United States v. Rahimi, which the court announced June 21, is notable for what it could have done but did not do — namely, strike down laws aimed at protecting abuse victims from gun violence.
Had that happened, North Carolina‘s laws requiring people with domestic violence protective orders against them to surrender their firearms to law enforcement could have been deemed unconstitutional.
Because the court upheld the federal law on the same principle, the state’s laws appear to be here to stay, and any local authorities who cited concerns about constitutionality when exercising not to enforce such gun seizure court orders fully no longer have that rationale.
Federal law prohibits people convicted in any court of a “misdemeanor crime of domestic violence” to possess or purchase firearms and ammunition. People subject to certain domestic violence protective orders are similarly denied access to guns and ammo.
Lindsay Nichols, policy director at Giffords Law Center to Prevent Gun Violence in California, told Carolina Public Press that many states have created laws echoing federal statutes and filling in gaps to better protect victims of domestic violence from gun deaths.
While North Carolina has some provisions of this type, gun control advocacy groups like Giffords say that undertaking that has not been adequately addressed by North Carolina.
While the state does have a process for removing firearms from people with DVPOs against them, it isn’t illegal under state law for domestic violence misdemeanants to own or purchase guns. Additionally, state and local police are not authorized to remove firearms from the scene of a domestic violence incident immediately, instead requiring a later court order to do that.
The federal ruling leaves the door open for North Carolina and other states to provide additional protection to those threatened by domestic violence by enacting stricter gun control measures against people who are already a violent threat to those in their own families.
Key test of 2nd Amendment
The United States v. Rahimi centered around a federal law that prevented people subject to domestic violence protective orders from possessing or purchasing firearms.
The respondent in the case, Zackey Rahimi, was convicted under that law in federal court after officers searched his home and found a rifle, a pistol and a copy of a restraining order that prohibited him possessing firearms.
Rahimi challenged that conviction, arguing that the law violated the Second Amendment on its face. An appellate court agreed, citing the 2022 landmark Bruen decision that said laws regulating firearms must have “historical analogues” to the country’s older firearms laws.
The Supreme Court reversed that decision this month, stating that the Fifth Circuit Court of Appeals incorrectly applied the Bruen rule and that the federal law in question is constitutional.
While Rahimi specifically focused on the aspect of the law surrounding protective orders, Nichols said, it can reasonably be assumed that other provisions in that same law – like the one prohibiting domestic violence misdemeanants from owning guns – would also stand up to a Second Amendment challenge.
NC law on DV and guns
Chapter 50B of North Carolina’s General Statutes addresses domestic violence, laying out a procedure for the required surrender of firearms by a person accused of domestic violence.
Under that law, a plaintiff may file for an ex parte protective order, a type of temporary protective order that does not require the defendant to be present at the hearing. If a judge grants this request, upon the issuance of an ex parte order, the court can require the defendant to surrender all firearms, ammunition and related permits to their sheriff as long as one of the following factors are met:
“(1) The use or threatened use of a deadly weapon by the defendant or a pattern of prior conduct involving the use or threatened use of violence with a firearm against persons
“(2) Threats to seriously injure or kill the aggrieved party or minor child by the defendant.
“(3) Threats to commit suicide by the defendant.
“(4) Serious injuries inflicted upon the aggrieved party or minor child by the defendant.”
Requiring one of those factors to be met before confiscating firearms from the defendant makes the law unnecessarily narrow, Nichols said.
“That is a very weak version of this law,” she said. “It’s, in fact, arguably weaker than federal law and makes it difficult for a victim of domestic abuse to obtain the protection he or she might need.”
If issued, an ex parte order will last up until the hearing for a more permanent domestic violence protective order, which can be renewed annually. If the court does not enter a DVPO when the ex parte order expires, defendants can retrieve their firearms surrendered to their sheriff unless the court finds that the defendant is otherwise prohibited by state or federal law from owning those weapons.
But it was up to local law enforcement to enact that order and sometimes sheriffs and deputies chose not to enact it fully.
The result of not confiscating guns from a suspect have been fatal at times. For instance, in 2016 a Candler man faced charges in Buncombe County that he had assaulted his wife and she obtained a protective order against him, with the court ordering that the sheriff remove his guns.
A short time afterward, the husband shot and killed the woman and himself with his own guns. Those familiar with the case at the time told CPP that some guns were taken, but when she told officers that her husband also owned long guns they had not taken, he denied having them and the officers did not search for those weapons.
When no court order is in place in North Carolina, it is not illegal under state law for people convicted of a domestic violence misdemeanor to own or purchase guns. In fact, such a term was nowhere to be found in the General Statutes until last year, when a law that went into effect December 1 created a new offense called “misdemeanor crime of domestic violence.”
People convicted of that state offense will be prohibited under federal law to own or purchase firearms, but people previously convicted in state court of assault on a female will still not be subject to that federal law as long as they don’t have any other disqualifiers.
Brittany Bromell, a professor in the UNC School of Government with expertise in domestic violence, said that while the “misdemeanor crime of domestic violence” offense was meant to prevent abusers from having access to firearms there are no real mechanisms for it to be enforced by state and local law enforcement.
“There is a form that people get after conviction that says, ‘Hey, you may not be able to have a gun,’ but as of right now, as the law stands, enforcement is probably going to be more in a federal court than in a state court,” Bromell said.
Efforts to strengthen NC domestic violence laws
The North Carolina Domestic Violence Commission, a state body made up of governor appointees, approved a legislative agenda ahead of the 2023 long session that outlined several legislative goals for the near future.
Among those goals was to enact extreme risk protective orders, a type of protective order that can be sought by family members or law enforcement to temporarily disarm people who pose a significant risk to harming themselves or others with a firearm.
A group of Democratic representatives filed a bill in 2021 to adopt ERPOs, but it died in the House Rules Committee and has not been picked back up since, despite the 2022 Bipartisan Safer Communities Act authorizing the use of federal grants to implement ERPO programs.
More recently, Sen. Jay Chaudhuri, D-Wake, introduced a bill on April 30 to make it illegal for people convicted by a state court of a misdemeanor crime of domestic violence from owning or purchasing firearms. Thirty-four other U.S. states and D.C. currently have such a law in place.
That bill hasn’t seen any movement since it was referred to the House Rules Committee on May 1. Chaudhuri did not respond to CPP prior to publication of this article.
Supporters of the bill will likely have to wait until at least the 2025 long session before the issue is revisited.
Frank Taylor also contributed to this report.
This article first appeared on Carolina Public Press and is republished here under a Creative Commons license.
Photo by Sora Shimazaki: https://www.pexels.com/photo/close-up-photo-of-wooden-gavel-5668473/
