Supreme Court appears inclined to uphold gun ban for domestic abusers

A majority of Supreme Court justices leaned toward upholding a federal law criminalizing gun possession for people under domestic violence restraining orders during oral arguments Tuesday.

The case follows several landmark Supreme Court decisions that expanded gun rights over the past 15 years, with the dispute marking the justices’ first plenary Second Amendment case since they established a new legal test last year.

A Texas man’s challenge of his conviction under the domestic violence gun law has forced the justices to consider the limits of their recent expansion and perhaps clarify the test for lower courts that have voiced confusion.

Zackey Rahimi was placed under a restraining order after he dragged his girlfriend, with whom he has a child, in a parking lot and attempted to shoot a witness. Rahimi later participated in a series of five shootings, court filings show, and was indicted on the gun charge after police searched Rahimi’s home and found a rifle and a pistol.

Several justices during Tuesday’s argument directed fierce questions at Rahimi’s public defender, J. Matthew Wright, appearing hesitant to rule Congress had no authority to prohibit him from possessing a gun.

Although justices in both ideological camps expressed concerns with the Biden administration’s basic argument that the statute is constitutional because Congress can disarm people who are not “law-abiding, responsible citizens,” several justices instead suggested using a dangerousness standard to resolve the case.

“It’s a facial challenge, and I understand your answer to say that there will be circumstances where someone could be shown to be sufficiently dangerous, that the firearm can be taken from him. And why isn’t that the end of the case?” Chief Justice John Roberts asked Wright.

Justice Samuel Alito, one of the court’s leading conservatives, however, probed some legal groups’ arguments that domestic violence protective orders are sometimes granted quickly in a “he said, she said situation.”

“The person thinks that he or she is in danger and wants to have a firearm,” Alito said. “Is the person’s only recourse to possess the firearm and take their chances if they get prosecuted?”

Liberal Justice Sonia Sotomayor then chimed in to note Alito’s hypothetical was not the facts of the case at hand.

Justice Amy Coney Barrett, a conservative, repeatedly read directly from Rahimi’s protective order and noted the claims submitted by his girlfriend. Conservative Justice Clarence Thomas similarly asked questions about facts underlying Rahimi’s specific case.

“She did submit a sworn affidavit giving quite a lot of detail about the various threats, right?” Barrett asked. “So it’s not just like he showed up and the judge said, ‘Credible finding of violence.’”

Multiple justices also accused Wright of changing his argument to avoid facing how it could be leveraged to strike down other laws.

“I’m so confused,” Barrett told Wright at one point.

“I feel like you’re running away from your argument,” said liberal Justice Elena Kagan.

The case is the first in which the justices are applying their new Second Amendment test established last year in NYSRPA v. Bruen, in which the six conservative justices ruled gun laws must be consistent with the nation’s historical tradition of firearm regulation.

Under Bruen, lower courts have struck down a dizzying array of gun laws after finding the government had not shown sufficient historical analogues.

Some judges have expressed confusion with the new test, and the case before the justices could provide lower courts with additional guidance.

U.S. Solicitor General Elizabeth Prelogar urged the court to clarify three aspects of the Bruen test: More than just regulations can serve as historical analogues, judges should “not nitpick” each of the government’s proposed analogues, and courts should not place too much weight on the absence of a historical regulation.

The case also left the justices grappling with how to apply Bruen with changing attitudes on domestic violence since the country’s founding. 

“Two-hundred-some years ago, the problem of domestic violence was conceived very differently,” Kagan said. “People had a different understanding of the harm, people had a different understanding of the right of government to try to prevent the harm, people had in different understandings with respect to pretty much every aspect of the problem. So if you’re looking for a ban on domestic violence, it’s not going to be there.”

Rahimi — who had no prior criminal history — contends he was part of “the people” the Second Amendment was designed to protect.

“I’m looking for a ban that applies to a rights-holding American citizen,” Wright said.

As the argument took place, hundreds of protesters supporting gun control measures — including groups like Moms Demand Action and March For Our Lives — rallied outside the courthouse. It also included former Rep. Gabby Giffords (D-Ariz.) and Sens. Amy Klobuchar (D-Minn.) and Chris Murphy (D-Conn.).

A decision in the case, United States v. Rahimi, is expected by the end of June.

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