The U.S. Supreme Court on Tuesday seemed likely to uphold a federal law that bans gun possession for anyone subject to a domestic violence court order. If so, the decision would be a small retreat from the court's sweeping decision on gun rights last year.
From the outset Tuesday, the justices wrestled with the consequences of their far-reaching 2022 decision, declaring that in order for a gun law to be constitutional, it has to be analogous to a law that existed at the nation's founding in the late 1700s. The question Tuesday was how precise that analog has to be.
Dangerous vs. responsible
Solicitor General Elizabeth Prelogar, representing the government, told the justices that under the court's most recent decisions, including last year's, Congress may 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 kinds of irresponsible things — driving over the speed limit, putting the trash out on the wrong day — but nobody would suggest they lose their constitutional rights for that. Pressed by Chief Justice John Roberts, Prelogar agreed that the word responsible is "something of a placeholder for dangerousness."
"There's no daylight at all then between not responsible and dangerous?" Justice 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 relied on the same phrasing the court itself used when it first articulated" the right to bear arms principle in 2008, she replied.
Most of the court's conservatives seemed to accept that proposition, with only Justices Samuel Alito and Clarence Thomas remaining skeptical. Thomas was the author of last year's broad decision — a decision so expansive and unspecific that the lower courts have interpreted it in dramatically different ways. As Justice Elena Kagan observed, "There seems to be a fair bit of division, and a fair bit of confusion about what Bruen [last year's case] means and what Bruen requires of the lower courts."
Background to the case
Challenging the federal law in Tuesday's case was Zackey Rahimi. A Texas judge stripped him of his license to have guns when it granted a domestic violence court order after Rahimi allegedly assaulted his girlfriend in a parking lot, and then fired a gun at a bystander who saw the assault. After he continued firing guns in public, even after the court order, police searched his residence and found guns, magazines and ammunition. He was sentenced to six years in prison for violating the federal law that bans domestic abusers under court order from possessing guns.
Rahimi, however, continued to press 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 Tuesday, telling the justices there is no law from the founding era that is analogous to this one.
"There's no history of [gun] bans. They don't exist," Wright told the court.
Justice Kagan asked if the presence of a similar ban at the time of the founding is essential after the court's decision last year in the Bruen case. If there isn't a similar ban from the founding era, "we say that the government has no right to do anything?" she asked incredulously.
"That's largely what Bruen says," Wright replied.
Wright also maintained that those accused of domestic violence have few protections in court prior to being slapped with a ban on guns.
Justice Amy Coney Barrett wasn't buying that, noting that Rahimi's ex-girlfriend "did submit a sworn affidavit giving quite a lot of detail about the various threats. It's not like he just showed up and the judge said 'credible finding of violence.'"
Roberts was even more direct, asking, "You don't have any doubt that your client is a dangerous person, do you?"
Wright replied, "I would want to know what dangerous person means."
"Someone who is shooting at people," Roberts shot back.
"That's fair," a sheepish Wright conceded.
Kagan followed up: "Do you think the Congress could disarm people who are mentally ill, who've been committed to mental institutions?"
"I think maybe," Wright answered, prompting this from Kagan: "I will tell you the honest truth, Mr. Wright. I feel like you are running away from your argument because the implications of your argument are just so untenable that you have to say 'no, that is not really my argument.'"
Indeed, the court's decision in the Rahimi case will have ripple effects. It may make lower courts more hesitant to strike down laws aimed at preventing dangerous people from having guns.
But as several justices said Tuesday, this is the easy case. The harder ones lie ahead, among them: federal and state laws that bar convicted felons — even those convicted of non-violent crimes — from having guns.
