The intersection of domestic violence and firearm possession has become a focal point in both federal and state law. In Texas, where gun ownership is deeply ingrained in the state’s culture, questions about whether individuals accused of family violence can be prohibited from possessing firearms are particularly complex. The Supreme Court’s recent ruling in United States v. Rahimi (2024) has shed light on the federal government’s ability to impose firearm restrictions, but Texas law also plays a significant role in regulating firearm possession for individuals facing family violence accusations.

Federal Law: Disarming Individuals Subject to Domestic Violence Restraining Orders

Under federal law, 18 U.S.C. §922(g)(8) prohibits individuals who are subject to a domestic violence restraining order from possessing firearms. For this prohibition to apply, certain criteria must be met:

  • The restraining order must have been issued after a hearing where the accused had an opportunity to participate.
  • The order must specifically prohibit the individual from harassing, stalking, or threatening an intimate partner or child, or include a finding that the individual represents a credible threat to their physical safety.

In United States v. Rahimi (2024), the U.S. Supreme Court examined whether this federal prohibition was consistent with the Second Amendment. Rahimi, who was subject to a restraining order due to domestic violence, challenged the constitutionality of §922(g)(8). The Court ultimately upheld the federal law, ruling that individuals found to pose a credible threat to another’s physical safety can be temporarily disarmed without violating their Second Amendment rights.

The Court pointed to historical precedents, such as surety and going-armed laws, which allowed for the disarmament of individuals who posed a threat of violence. The ruling clarified that §922(g)(8) aligns with the Nation’s historical tradition of firearm regulation, providing a legal foundation for federal restrictions on firearm possession in domestic violence situations.

Texas Law: Family Violence and Firearm Restrictions

Texas law also contains provisions that restrict firearm possession for individuals involved in family violence cases. The key statute governing firearm possession by individuals accused or convicted of family violence is found in Texas Penal Code §46.04(b). This law states that a person who has been convicted of a family violence misdemeanor, or who is subject to a protective order related to family violence, is prohibited from possessing a firearm.

  • Protective Orders: Under Texas Family Code §85.022, a court issuing a protective order in a family violence case can specifically prohibit the respondent from possessing a firearm. Protective orders are issued when the court finds that family violence has occurred or is likely to occur in the future, which can include physical harm, bodily injury, or assault against a family member or household member.
  • Misdemeanor Convictions: If an individual is convicted of a family violence offense, Texas Penal Code §46.04 prohibits them from possessing a firearm for five years following their release from confinement, community supervision, or probation. After this period, the individual can only possess a firearm in their home.

Texas law is consistent with federal law in its approach to disarming individuals involved in family violence cases, but there are distinctions. While federal law automatically applies to individuals subject to protective orders meeting the statutory criteria, Texas law requires a specific finding by the court that family violence has occurred or is likely to occur. Additionally, Texas provides for a time-limited firearm prohibition for individuals convicted of family violence misdemeanors, whereas federal law imposes a broader, more permanent restriction on individuals convicted of certain domestic violence crimes.

Analyzing the Constitutional and Legal Framework

At the federal level, the constitutionality of disarming individuals subject to domestic violence restraining orders was affirmed in Rahimi. The Court ruled that such restrictions align with the historical tradition of regulating firearm possession by individuals who pose a threat to public safety. The Rahimi decision is significant for states like Texas, which have similar restrictions in place, because it reinforces the legality of disarming individuals accused of family violence.

However, Texas must also navigate its own constitutional protections for firearm possession under Article I, Section 23 of the Texas Constitution, which states that “every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State.” While Texas courts have upheld the state’s ability to restrict firearm possession in cases of domestic violence, they must ensure that these restrictions are narrowly tailored to meet public safety concerns without infringing on broader Second Amendment rights.

Federal vs. Texas Law: Key Distinctions

While both federal and Texas laws seek to protect victims of family violence by restricting firearm possession, they differ in important ways:

  1. Scope of Restriction: Federal law under §922(g)(8) applies to any individual subject to a restraining order that includes specific findings about a credible threat or prohibition against harassment or violence. Texas law requires a family violence finding or a conviction before firearm restrictions are imposed.
  2. Duration of Restriction: Texas Penal Code §46.04(b) limits the prohibition on firearm possession for individuals convicted of family violence misdemeanors to five years, whereas federal law may impose more permanent restrictions for domestic violence convictions under §922(g)(9).
  3. Procedural Requirements: Federal law does not require an explicit firearm prohibition in a restraining order, as long as the order meets the statutory criteria. Texas Family Code §85.022 requires the court to include specific language prohibiting firearm possession in the protective order.

Practical Implications for Texans

Individuals accused of family violence in Texas should be aware that both state and federal law may impact their right to possess firearms. Protective orders and misdemeanor convictions related to family violence can result in a temporary or, in some cases, permanent loss of firearm rights.

Given the complexities of state and federal law, individuals facing family violence accusations should seek legal counsel to navigate the potential consequences, particularly when it comes to firearm possession. Texas courts, while adhering to constitutional protections, have clear statutory authority to restrict firearms for the protection of victims of family violence, and the Rahimi decision provides strong legal support for those restrictions under federal law.

Conclusion

The ability to prohibit individuals accused of family violence from possessing firearms is well-supported under both federal and Texas law. Federal law, affirmed by the Supreme Court in United States v. Rahimi, allows for the temporary disarmament of individuals who pose a threat to the physical safety of others. Texas law similarly imposes firearm restrictions on individuals subject to protective orders or convicted of family violence offenses, though there are distinctions in the scope and duration of these restrictions. Together, these legal frameworks work to protect victims while balancing the constitutional right to bear arms.