The US Supreme Court on Tuesday appeared likely to uphold a federal law that bans gun ownership by anyone subject to a domestic violence court order. If so, the decision would be a small retreat from the court’s sweeping ruling on gun rights last year.
From the outset Tuesday, the justices wrestled with the consequences of their far-reaching 2022 decision, which declared that for a gun law to be constitutional, it must be analogous to a law that existed at the nation’s founding in the late 1700s. The question on Tuesday was how precise that analogue had to be.
Dangerous versus responsible
Solicitor General Elizabeth Prelogar, representing the government, told the justices that under the court’s recent rulings, including last year’s, Congress can disarm those who are not law-abiding, responsible citizens.
“There is no historical evidence” that the Second Amendment “was originally understood to prevent legislatures from disarming dangerous individuals,” she said.
But, as several justices noted, people do all sorts of irresponsible things – drive faster than the speed limit, put out the garbage on the wrong day – but no one would suggest that they lose their constitutional rights for doing so. Pressed by Chief Justice John Roberts, Prelogar agreed that the word “responsible” was “something of a placeholder for dangerousness”.
“So there’s no daylight at all between not responsible and dangerous?” Judge Brett Kavanaugh asked. No daylight, Prelogar agreed, adding that “our understanding of what history and tradition reflect … is those whose possession of firearms presents an unusual danger beyond the ordinary citizen.”
“Why did you use the term ‘responsible’ if what you meant was dangerous?” Roberts asked.
“Well, we were relying on the same language that the court itself used when it first articulated the principle of the right to bear arms” in 2008, she replied.
Most of the court’s conservatives seemed to accept that proposition, with only Justices Samuel Alito and Clarence Thomas remaining sceptical. Thomas was the author of last year’s sweeping decision – one so broad and unspecific that lower courts have interpreted it in dramatically different ways. As Justice Elena Kagan observed, “There seems to be quite a bit of disagreement and confusion about what Bruen [last year’s case] means and what Bruen requires the lower courts to do.”
Background on the case
The man challenging the federal law in Tuesday’s case was Zackey Rahimi. A Texas judge stripped him of his gun licence when he granted a domestic violence court order after Rahimi allegedly assaulted his girlfriend in a car park and then fired a gun at a bystander who saw the attack. After he continued to fire guns in public following the court order, police searched his home and found guns, magazines and ammunition. He was sentenced to six years in prison for violating the federal law that prohibits domestic abusers under court order from possessing guns.
But Rahimi continued his challenge to the federal law, and the Fifth Circuit Court of Appeals, citing the Supreme Court’s 2022 ruling, declared the law unconstitutional.
Rahimi’s lawyer, federal public defender Matthew Wright, struggled to defend that decision on Tuesday, telling the justices there was no founding era law analogous to this one.
“There’s no history of [gun] bans. They don’t exist,” Wright told the court.
Justice Kagan asked whether the existence of a similar ban at the time of the Founding was essential after the Court’s decision last year in the Bruen case. If there’s no similar ban from the Founding, “are we saying the government has no right to do anything?” she asked incredulously.
“That’s essentially what Bruen says,” Wright replied.
Wright also claimed that those accused of domestic violence have few protections in court before being slapped with a gun ban.
Judge Amy Coney Barrett didn’t buy it, noting that Rahimi’s ex-girlfriend “filed an affidavit with a lot of detail about the various threats. It’s not like he just showed up and the judge said ‘credible fear of violence’.
Roberts was even more direct, asking, “You have no doubt that your client is a dangerous person, do you?”
Wright replied, “I’d like to know what dangerous person means.”
“Someone who shoots people,” Roberts shot back.
“That’s fair,” an embarrassed Wright conceded.
Kagan followed up: “Do you think Congress could disarm people who are mentally ill, who have been committed to mental institutions?”
“I think maybe,” Wright replied, prompting this from Kagan: “I’m going to tell you the honest truth, Mr Wright. I feel like you’re running away from your argument because the implications of your argument are just so untenable that you have to say, ‘No, that’s not really my argument.'”
Indeed, the court’s decision in the Rahimi case will have ripple effects. It may make lower courts more reluctant to strike down laws aimed at preventing dangerous people from having guns.
But as several justices said on Tuesday, this is the easy case. The harder ones lie ahead, including federal and state laws that bar convicted felons – even those convicted of non-violent crimes – from having guns.