Restricting Guns in Cases of Domestic Violence

Should someone under a domestic violence restraining order be allowed to keep a gun? Federal law says no. But after the Supreme Court reshaped Second Amendment analysis, that rule faced a direct constitutional challenge.

In this TalksOnLaw Brief, Jody Madeira, Professor of Law at the Indiana University Maurer School of Law and a Second Amendment scholar, explains how federal and state law restrict firearms in domestic violence cases, the gaps that remain, and the stakes of United States v. Rahimi, which was then awaiting decision.

The Federal Framework

Professor Madeira explains that 18 U.S.C. § 922(g)(8) bars people subject to certain domestic violence protective orders from possessing firearms. Zackey Rahimi, under a civil protective order for assaulting his girlfriend, was later involved in a series of shootings and challenged the law under New York State Rifle & Pistol Association v. Bruen (2022), arguing that no founding-era law disarmed someone in his position. She notes that in the 1700s husbands had legal authority to discipline their wives short of serious bodily injury, so modern domestic violence laws had no direct counterpart. Federal law also disarms people convicted of misdemeanor domestic violence. That ban originally did not reach dating partners, the so-called boyfriend loophole, which the Bipartisan Safer Communities Act of 2022 closed in part: dating partners convicted of misdemeanor domestic violence are now barred, though for five years rather than indefinitely.

Protective Orders and Due Process

Civil protective orders, she explains, are valuable because many victims will not pursue criminal charges, perhaps because they depend on the abuser for support or fear escalation. An emergency order can issue immediately and ex parte, but the federal ban applies only to orders issued after the respondent had notice and a chance to be heard, typically under a civil, more-likely-than-not standard that abuse occurred and that there is a risk of future violence. She also flags the "stalking gap": federal law does not disarm people convicted of misdemeanor stalking, even though stalking strongly predicts later violence.

Where States Go Further

States often go further, expanding who counts as a victim to include household members, roommates, or people with disabilities abused by personal assistants, and in some states covering any protective order. Some require removal of firearms at the scene of an incident, though seizure procedures vary. Professor Madeira stresses the stakes: over one in three women experience intimate partner violence, and women are five times more likely to die when an abuser has access to a gun.

What to Know Now

The Supreme Court decided United States v. Rahimi in June 2024, and the outcome matched Professor Madeira's prediction. In an 8-1 opinion by Chief Justice Roberts, the Court upheld § 922(g)(8), drawing on historical surety and "going armed" laws, the kind of analogues she discussed, and holding that when a court has found that an individual poses a credible threat to the physical safety of another, that person may be temporarily disarmed. The Court stressed that modern laws need not have a "historical twin," only fit the principles of the nation's regulatory tradition. Justice Thomas dissented. In 2026, the Court held in United States v. Hemani that a different federal prohibition could not be applied to a marijuana user not shown to be dangerous, underscoring the weight courts now give to findings of present danger. Advocates for survivors view Rahimi as securing a core protection, while gun-rights advocates continue to scrutinize orders issued without strong procedural safeguards.