CNN
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Advocates for domestic violence survivors are worried that a controversial federal court ruling striking down a gun control measure will discourage victims from coming forward.
Earlier this month, the 5th US Circuit Court of Appeals said that those under domestic violence restraining orders have a Second Amendment right to bear arms, saying a federal law barring those alleged abusers from possessing guns is unconstitutional.
The risk of homicide in a domestic violence situation increases by 500% if a gun is present, according to research cited by the National Coalition Against Domestic Violence.
Though some of the states covered by the appeals court have similar state law restrictions, the new ruling undermines a crucial tool that survivors have in protecting themselves from their abusers. If the 5th Circuit’s logic was adopted nationwide by the US Supreme Court, the consequences would be devastating, advocates say.
“People are going to know that their abuser still has their gun. They’re going continue to live in absolute, abject fear,” said Heather Bellino, the CEO of the Texas Advocacy Project, which works with victims of domestic violence. “They are going to be afraid to get a protective order, because now that gun’s not going away, and now [the abuser is] real pissed. So, it’s going to have an absolute chilling effect on survivors.”
Guns are used to commit nearly two-thirds of intimate partner homicides, the Centers for Disease Control and Prevention has said. A 2021 study found that the majority of mass shootings are also linked to domestic violence.
“There’s a clear connection between intimate partner homicide and the accessibility of firearms,” said Kelly Roskam, director of law and policy at the Johns Hopkins Center for Gun Violence Solutions. “And not just to murder partners, but abusers use guns or even the mere presence of a gun to coerce, threaten and terrorize their victims of all genders.”
The ruling only applies in the circuit – which covers Texas, Louisiana and Mississippi – and, for now, doesn’t affect the similar state laws that two of those three states have on the books.
The 5th Circuit said the federal law is unconstitutional because it lacked an adequate parallel to the firearm regulations that were in place at the time of Constitution’s framing. That historical test was laid out in a blockbuster US Supreme Court opinion last year that has since led lower courts to knock down various kinds of state and federal gun restrictions across the country.
Attorney General Merrick Garland has signaled the Justice Department will appeal the 5th Circuit’s ruling.
The federal law in question was passed in 1996. Several states have similar prohibitions, though if the Supreme Court were to agree with the 5th Circuit’s reasoning, they, too, would be unconstitutional, according to Roskam.
Unlike some of the state laws that restrict the access those under domestic violence protective order have to firearms, the federal law does not lay out a specific process for forcing an alleged abuser to turn over his weapons once he is placed under a protective order. However, some local jurisdictions have used the federal law to implement such procedures, according to Julia Weber, director of the National Center on Gun Violence in Relationships at the Battered Women’s Justice Project.
That makes the federal law a critical tool for urging survivors to leave their abusive situations, advocates say, even if the law’s enforcement has been inconsistent across the country.
“In Texas, taking away somebody’s gun is not easy … it shouldn’t be super easy,” Bellino said. “But we were always able to say, ‘federal law trumps state law, so guess what? You’re going get rid of your gun.’ And in as many cases as possible, we made that happen.”
According to experts and advocates who have worked directly with survivors, abusers can use guns to make explicit threats of violence against their victims and also wield their weapons in lower-key ways that are implicit acts of intimidation.
Ruth Glenn, a domestic violence survivor who was shot by her estranged spouse, recalled to CNN how simply being aware that her abuser owned a firearm made her fearful – even when he wasn’t actively wielding it against her.
“The entire idea that there was always a threat and knowing that the firearm was there, was such a control mechanism,” said Glenn, who is now president of the National Coalition Against Domestic Violence.
When a victim decides to come forward and seek a court’s intervention, it is a particularly vulnerable time for her, advocates say, and victims feel safer when protective orders come with a two-prong effect of both keeping their abuser away and depriving of them of a lethal weapon.
“This timeframe when they’re accessing that order of protection is so critical,” said Monica McLaughlin, the senior director of public policy at the National Network to End Domestic Violence. “So, the ability to remove firearms at that time, we think, is one of the most critical components to a survivor’s safety.”
In the short term, the 5th Circuit’s ruling wiped away the conviction of a defendant who challenged his prosecution under the federal law. As long as that ruling is in effect, federal prosecutors will be unable to bring charges under the federal law within the circuit. Others who have been convicted under the federal law within the 5th Circuit may also ask that the courts throw out those convictions under the appeals court ruling that the law in question is unconstitutional.
The 5th Circuit ruling does not apply to states in other federal circuits. Nor does it block the enforcement of state laws in the 5th Circuit targeted at those accused of domestic abuse – though those laws might soon see court challenges citing the 5th Circuit’s opinion.
Texas law bars the those under a protective order from possessing firearms but has only limited mechanisms for forcing the surrender of a gun – and only once a permanent order is issued.
Louisiana’s prohibitions create a firearm removal process once a permanent injunction against an abuser is obtained.
The third state within the circuit, Mississippi, has no state law restricting firearm ownership by those under domestic violence protective orders, according to Disarm Domestic Violence, which tracks state and federal policy on the issue.
What happens next in the case could have broader consequences for domestic abuse victims. The case could potentially land in front of the Supreme Court and if the high court adopts the 5th Circuit’s reasoning, it will control nationwide.
“People have to make choices about whether they come forward and where they go for help,” said Weber, of the Battered Women’s Justice Project. “And they’re not going to go to our courts, or reach out to law enforcement, or even perhaps reach out to community-based organizations, if they don’t think the risks that they’re living with will be taken seriously.”
