adminThe Supreme Court seemed poised Tuesday after oral arguments to rule in favor of a federal law that bars individuals subject to certain domestic violence restraining orders from possessing firearms.
The case – argued in the wake of a mass shooting in Maine that killed 18 last month – is the first substantive Second Amendment case to come before the justices since they issued a landmark opinion last year expanding gun rights nationwide that’s caused massive confusion in lower courts as dozens of firearms laws are reviewed.
For more than an hour, the justices referred to that case – New York State Rifle & Pistol Association, Inc. v. Bruen – with a majority indicating that the law being challenged falls comfortably within the nation’s historical tradition of limiting Second Amendment rights when it comes to individuals – like the plaintiff in the case at hand —who have been found to pose a danger to society.
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As she stepped up to the podium, Solicitor General Elizabeth Prelogar argued that “guns and domestic violence are a deadly combination.”
“All too often,” she said, “the only difference between a battered woman and a dead woman is the presence of a gun.”
“Throughout our nation’s history, legislatures have disarmed those who have committed serious criminal conduct or whose access to guns poses a danger,” she later added.
Some of the justices seemed inclined to agree on that point.
“You don’t have any doubt that your client’s a dangerous person, do you?” Chief Justice John Roberts asked the attorney for Zackey Rahimi—the respondent in the case who dragged the mother of his child through a parking lot in 2019, received a restraining order against him and went on a shooting spree that culminated with shots fired at a Whataburger restaurant in January 2021 after his credit card was declined.
When the court ultimately issues its opinion in several months, it likely will not resolve the confusion swirling in the lower courts concerning the framework judges should use as they consider a wide variety of gun laws.
Instead, the opinion could end up being closely tied to the facts in the case at hand, making clear, at the very least, that the Second Amendment does not protect those who have been found to be dangerous.
Prelogar insisted that Congress may disarm those “who are not law abiding, responsible citizens.”
But Justice Clarence Thomas, who authored last year’s Bruen decision and who in recent years asks the first question of every oral argument, challenged the government’s proposed test in the case, signaling that he thought it was too broad.
In his baritone voice Thomas asked Prelogar to define what she meant by “law abiding and responsible.”
Roberts jumped in as well. Would that include someone going 30 miles per hour in a 25 miles per hour zone? Would it matter if the person were guilty of a misdemeanor and not a felony? Roberts – thinking ahead to the next case – appeared to reject Prelogar’s test as “extremely broad.”
Roberts was not alone. The ACLU, a group always worried about mass incarceration, filed a friend-of-the-court brief in the case saying that it did not support the government’s test. The ACLU said the court could resolve the case on a much more narrow legal ground: whether it has been determined that the individual poses a specific threat to others. The ACLU’s brief might attract the attention of some conservatives who want to say the law at issue is okay for the case at hand, but go no further in other areas.
In her closing, Prelogar again emphasized the stakes.
“A woman who lives in a house with a domestic abuser is five times more likely to be murdered if he has access to a gun,” she said.
Long before she reached the high court, Justice Amy Coney Barrett issued an opinion that attracted the attention of gun rights supporters.
While sitting on the 7th US Circuit Court of Appeals, Barrett dissented when her colleagues rejected a Second Amendment challenge from a man with a felony for mail fraud who was prohibited from possessing a firearm under both federal and Wisconsin law.
“History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns,” Barrett wrote in 2019.
But she emphasized that the power extends only to people who are “dangerous.”
She said that the fact that the law included all felons “both violent and nonviolent” made it unconstitutional as applied to the plaintiff in the case – suggesting she is interested in developing some kind of standard based on “dangerousness.”
Tuesday, Barrett stressed the horrific circumstances surrounding Rahimi’s actions as outlined in the protective order. Barrett noted that domestic violence is “dangerous.” But looking to the next case she asked about “more marginal cases” that might not offend the constitution.
Justices Alito and Thomas express concerns about due process
Even the most ardent supporter of gun rights acknowledge that Rahimi provided the government with a good test case to revisit the court’s opinion from last year.
So his lawyers, the National Rifle Association and even Justices Thomas and Samuel Alito focused on due process rights.
J. Matthew Wright—a federal public defender, stressed more than once that that the civil proceeding that led to the issuance of the protective order had been “one-sided” and noted that Rahimi had not been provided with counsel at the time.
In court Tuesday, Alito asked procedural questions concerning whether a person subject to a protective order had any “recourse” if the person thought it had been wrongly issued. Thomas referred to the “thin record” in the case and wondered about the fact that the domestic violence allegations had been made in a civil – not a criminal – proceeding.
But their conservative colleague, Neil Gorsuch, noted that Rahimi hadn’t made a due process claim – suggesting that would be a different challenge.
Due process was central to a friend of the court brief filed by the NRA in the case. The group noted that Rahimi was not prosecuted for the initial aggravated assault. Instead, the prosecutors took “the easier route” and pursued a protective order.
Unlike the government and her liberal colleagues, Justice Ketanji Brown Jackson made crystal clear that she thought last year’s opinion – dependent on “historical tradition” – was confusing and wrongly decided. (She was not on the bench yet when that case was decided.)
“I’m just trying to understand how the Bruen test works in a situation in which there is at least some evidence that domestic violence was not considered to be subject to the kinds of regulation that it is today,” she said.
The founders, Jackson noted, were largely “White, Protestant men.”
Justice Elena Kagan, who dissented in Bruen, did not go as far as Jackson. But she did ask Prelogar what the justices could do to clarify the opinion.
“There seems to be a fair bit of division and a fair bit of confusion about what Bruen means and what Bruen requires in the lower courts,” Kagan said.
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