The Supreme Court appeared ready to uphold a federal law that bars anyone subject to a domestic-violence restraining order from possessing a gun. During just over 90 minutes of oral argument on Tuesday, a majority of the justices seemed wary of the consequences of allowing a ruling by a federal appeals court that struck down the law to stand.
The challenge to the law came to the court in the case of Zackey Rahimi, who was the subject of a Feb. 2020 protective order in a Texas state court after an incident in which he assaulted his then-girlfriend, who is also the mother of his child, and fired a gun at a witness to the incident. The protective order barred Rahimi from going near his former girlfriend’s home and workplace, and it also prohibited him from having a gun.
In 2021, police searched Rahimi’s home because he was a suspect in a series of shootings. After they found a rifle and a pistol, he was charged with violating 18 U.S.C. § 922(g)(8), the law at the center of this case.
Rahimi sought to have the charge against him dismissed, arguing that the law is unconstitutional. In the wake of the Supreme Court’s 2022 decision in New York State Rifle and Pistol Association v. Bruen, in which the justices explained that courts should uphold gun restrictions only if there is a tradition of such regulations in U.S. history, the U.S. Court of Appeals for the 5th Circuit agreed and threw out Rahimi’s conviction. Although the government is not required to identify a “historical twin” to Section 922(g)(8), the court of appeals explained, it had not offered the kind of “well-established and representative analogue” required to uphold the law.
Representing the federal government, U.S. Solicitor General Elizabeth Prelogar emphasized what she described as the “destabilizing consequences” of the 5th Circuit’s ruling. Relying on a similar test, she noted, other federal courts have relied on the lack of a historical analogue to strike down other gun restrictions, including the federal ban on the possession of guns by felons and the possession of guns that have had their serial numbers removed. But the Supreme Court in Bruen, Prelogar contended, recognized that Congress can take guns away from individuals who are not responsible, law-abiding citizens – for example, people who had been loyal to the British government during the Revolutionary War, felons, and drug addicts.
Some justices pressed Prelogar on what it meant for someone to be a “responsible” or “law-abiding” citizen. “Responsibility,” Chief Justice John Roberts observed, is “a very broad concept.” Would someone who doesn’t take his recycling out to the curb on the proper day, Roberts asked, be irresponsible?
Prelogar defined “responsibility” as “intrinsically tied to the danger you would present if you have access to firearms.”
Justice Amy Coney Barrett acknowledged that there is “little dispute” that domestic violence is dangerous. But in more marginal cases, she asked, how does the government show that other kinds of behavior are dangerous?
Justice Ketanji Brown Jackson pressed Prelogar to explain what lens courts should use in a case like this, when “men who engaged in domestic violence historically were actually not perceived” as dangerous at the time. If “we’re still applying modern sensibilities,” Jackson queried, “what’s the point of going to the founding era” to look for an analogy?
Prelogar explained that the “work that history and tradition are doing is helping to discern” the constitutional principles that can limit the Second Amendment. Section 922(g)(8), she continued, is a “clear application” of the principle “that you can disarm dangerous people.”
Jackson, who was not yet on the court when it issued its decision in Bruen, was more broadly critical of the “history and tradition” test outlined in that case. She noted that in defending the law, the federal government had previously pointed to laws disarming people who were regarded at the time as being outside the political community, such as enslaved persons and Native Americans, but it had not relied on those laws in the Supreme Court. She described herself as “a little troubled by having a history and traditions test that also requires some sort of culling of the history so that only certain people’s history counts.” “Isn’t that a flaw,” she asked, “with respect to the test?”
Representing Rahimi, J. Matthew Wright faced a tougher reception from the justices. Roberts made clear that, in his view, Rahimi was not someone who should have a gun. “You don’t have any doubt that your client’s a dangerous person, do you?” he said to Wright.
Other justices appeared skeptical of Wright’s position, which Justice Elena Kagan interpreted as requiring the government to show a historical regulation “essentially targeting the same kind of conduct as the regulation under review.”
Justice Samuel Alito chimed in, asking Wright whether his position was that, “except for someone who has been convicted of a felony, a person may not be prohibited from possessing a firearm in his home?”
Wright later hedged on that position, prompting Barrett to say that she was “so confused.” And when Wright answered “maybe” to a question about whether a legislature could ban the possession of guns by people with mental illnesses, Kagan told Wright that she believed he was “running away from [his] argument” because its implications were “just so untenable.” “I mean, it just seems to me,” Kagan continued, “that your argument applies to a wide variety” of gun restrictions “that we take for granted now because it’s so obvious that people who have guns pose a great danger to others.”
Justice Brett Kavanaugh asked Wright about another possible effect of a ruling in Rahimi’s favor. In its reply brief, Kavanaugh noted, the Biden administration indicated that the federal background check system used for the sale of firearms incorporates information from domestic-violence protection orders. But if Rahimi prevails, Kavanaugh said, the system “could no longer stop persons subject to those domestic-violence protective orders from buying firearms.”
This article is also published on SCOTUSblog.