The Biden administration is asking the Supreme Court to reverse a recent decision in which an appeals court concluded that the federal ban on gun possession by people subject to domestic-violence restraining orders violates the Second Amendment. In a petition filed this month, Solicitor General Elizabeth Prelogar portrays that law as a commonsensical precaution that is "consistent with the Nation's historical tradition of firearm regulation"—the constitutional test that the Court established last year in New York State Rifle & Pistol Association v. Bruen. But there are reasons to doubt that the "historical analogues" cited by the government are close enough and ample cause to worry about the threat that the policy it is defending poses to civil liberties.
Under 18 USC 922(g)(8), which Congress enacted in 1994, it is a felony, currently punishable by up to 15 years in prison, for someone to possess firearms when he is "subject to a court order" that restrains him from "harassing, stalking, or threatening an intimate partner" or "engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury." The provision requires that the order be issued after a hearing of which the respondent received notice. It also says the order must either include a finding that the respondent "represents a credible threat" to the intimate partner's "physical safety" or explicitly prohibit "the use, attempted use, or threatened use of physical force" that "would reasonably be expected to cause bodily injury."
