The Supreme Court on Tuesday appeared inclined to uphold a federal statute that forbids people who are the subject of domestic-violence restraining orders from possessing firearms.
Justices on both sides of the court’s ideological divide seemed to think the Second Amendment does not keep legislatures from restricting firearm possession after some sort of court finding that a person is dangerous. During oral arguments Tuesday morning, some of the justices suggested they did not have to go much further than that to decide the case at hand.
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Solicitor General Elizabeth B. Prelogar, representing the Biden administration, said a lower court had “profoundly erred” in finding that a federal law meant to protect victims of domestic abuse was unconstitutional. It satisfies both the Constitution and “common sense,” Prelogar said, to say “you can disarm dangerous persons.”
The justices were taking their first extensive look at the fallout from their 2022 decision in New York State Rifle & Pistol Association v. Bruen, which requires the government to point to historical analogues when defending laws that limit Second Amendment rights.
The decision has created considerable churn in lower courts, with dozens of gun-control laws declared suspect as a result of the justices’ new test. Prelogar said the court should use the present case — involving a Texas man arrested for possessing guns while the subject of a domestic-violence restraining order — to give more guidance to lower courts. But it was unclear whether the justices had an appetite for that, or were simply looking for a narrow way to resolve the issue at hand.
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The challenge to the domestic-violence order restrictions was brought by Zackey Rahimi, a drug dealer in Arlington, Tex., who was placed under a restraining order after a 2019 argument with his girlfriend in a parking lot turned violent. According to court records, Rahimi knocked his ex-girlfriend her to the ground, dragged her back to his car, picked her up and pushed her inside and fired a shot at a bystander. The girlfriend escaped, but Rahimi later called her and threatened to shoot her if she told anyone about the assault.
A Texas court found that Rahimi had “committed family violence” and that such violence was “likely to occur again in the future.” It issued a protective order that suspended his gun license, prohibited him from possessing a firearm and warned him that possessing a firearm while the order remained in effect may be a federal felony.
In early 2021, Rahimi was arrested at his Texas home, and police found “a .45-caliber pistol, a .308-caliber rifle, magazines, ammunition, and a copy of the protective order,” the government said in its brief. He was charged with illegally possessing a weapon.
Rahimi said his right to a gun was protected by the Second Amendment. But after a judge ruled against him, he pleaded guilty and received a sentence of six years in prison. He continued to protest the charges, and the U.S. Court of Appeals for the 5th Circuit reheard his plea after Bruen was decided.
The unanimous 5th circuit panel conceded Rahimi was “hardly a model citizen,” although his criminal record at the time the protective order was issued was scant. At the same time, the judges found Rahimi was among those whose right to a weapon is protected by the Second Amendment. They rejected the historical comparisons advanced by the government to justify the law barring those with protective orders from possessing guns.
Federal public defender J. Matthew Wright, representing Rahimi, said the 5th Circuit got it right, and laws such as the federal statute written before the Supreme Court found a Second Amendment right to possess a firearm in the home for protection were suspect.
Referring to his client, Wright said “this is someone who’s keeping a gun in his home.”
But under questioning, especially from Justices Elena Kagan and Brett M. Kavanaugh, Wright acknowledged that other areas of federal law might be endangered if the court accepted his argument. For example, background checks that prevent those who are subject protective orders from buying firearms, a law that Kavanaugh said had resulted in 75,000 gun-purchasing denials in 25 years.
Kagan said Wright was “running away” from his brief in the case “because the implications of your argument are so untenable.”
In Bruen, the justices voted 6 to 3 to strike down a century-old New York state law requiring a special need to carry a firearm outside the home. Justice Clarence Thomas, writing for the majority, said government officials cannot justify restrictions on firearms based solely on “an important interest” such as public safety concerns. Instead, he wrote, officials must “demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.”
The analogy does not have to be a “twin,” the court ruled, but must be relevant. “Courts should not uphold every modern law that remotely resembles a historical analogue, because doing so risks endorsing outliers that our ancestors would never have accepted,” Thomas wrote.
If some justices on Tuesday suggested Wright’s argument was too broad, the same was true of Prelogar’s argument that the Second Amendment protected only “law-abiding, responsible citizens."
It can be “irresponsible” not to take out your recycling, said Chief Justice John G. Roberts Jr.
“Could I just say dangerous?” asked Justice Amy Coney Barrett.
The case is United States v. Rahimi.
Justices on both sides of the court’s ideological divide seemed to think the Second Amendment does not keep legislatures from restricting firearm possession after some sort of court finding that a person is dangerous. During oral arguments Tuesday morning, some of the justices suggested they did not have to go much further than that to decide the case at hand.
Keeping up with politics is easy with The 5-Minute Fix Newsletter, in your inbox weekdays.
Solicitor General Elizabeth B. Prelogar, representing the Biden administration, said a lower court had “profoundly erred” in finding that a federal law meant to protect victims of domestic abuse was unconstitutional. It satisfies both the Constitution and “common sense,” Prelogar said, to say “you can disarm dangerous persons.”
The justices were taking their first extensive look at the fallout from their 2022 decision in New York State Rifle & Pistol Association v. Bruen, which requires the government to point to historical analogues when defending laws that limit Second Amendment rights.
The decision has created considerable churn in lower courts, with dozens of gun-control laws declared suspect as a result of the justices’ new test. Prelogar said the court should use the present case — involving a Texas man arrested for possessing guns while the subject of a domestic-violence restraining order — to give more guidance to lower courts. But it was unclear whether the justices had an appetite for that, or were simply looking for a narrow way to resolve the issue at hand.
Press Enter to skip to end of carousel
The challenge to the domestic-violence order restrictions was brought by Zackey Rahimi, a drug dealer in Arlington, Tex., who was placed under a restraining order after a 2019 argument with his girlfriend in a parking lot turned violent. According to court records, Rahimi knocked his ex-girlfriend her to the ground, dragged her back to his car, picked her up and pushed her inside and fired a shot at a bystander. The girlfriend escaped, but Rahimi later called her and threatened to shoot her if she told anyone about the assault.
A Texas court found that Rahimi had “committed family violence” and that such violence was “likely to occur again in the future.” It issued a protective order that suspended his gun license, prohibited him from possessing a firearm and warned him that possessing a firearm while the order remained in effect may be a federal felony.
In early 2021, Rahimi was arrested at his Texas home, and police found “a .45-caliber pistol, a .308-caliber rifle, magazines, ammunition, and a copy of the protective order,” the government said in its brief. He was charged with illegally possessing a weapon.
Rahimi said his right to a gun was protected by the Second Amendment. But after a judge ruled against him, he pleaded guilty and received a sentence of six years in prison. He continued to protest the charges, and the U.S. Court of Appeals for the 5th Circuit reheard his plea after Bruen was decided.
The unanimous 5th circuit panel conceded Rahimi was “hardly a model citizen,” although his criminal record at the time the protective order was issued was scant. At the same time, the judges found Rahimi was among those whose right to a weapon is protected by the Second Amendment. They rejected the historical comparisons advanced by the government to justify the law barring those with protective orders from possessing guns.
Federal public defender J. Matthew Wright, representing Rahimi, said the 5th Circuit got it right, and laws such as the federal statute written before the Supreme Court found a Second Amendment right to possess a firearm in the home for protection were suspect.
Referring to his client, Wright said “this is someone who’s keeping a gun in his home.”
But under questioning, especially from Justices Elena Kagan and Brett M. Kavanaugh, Wright acknowledged that other areas of federal law might be endangered if the court accepted his argument. For example, background checks that prevent those who are subject protective orders from buying firearms, a law that Kavanaugh said had resulted in 75,000 gun-purchasing denials in 25 years.
Kagan said Wright was “running away” from his brief in the case “because the implications of your argument are so untenable.”
In Bruen, the justices voted 6 to 3 to strike down a century-old New York state law requiring a special need to carry a firearm outside the home. Justice Clarence Thomas, writing for the majority, said government officials cannot justify restrictions on firearms based solely on “an important interest” such as public safety concerns. Instead, he wrote, officials must “demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.”
The analogy does not have to be a “twin,” the court ruled, but must be relevant. “Courts should not uphold every modern law that remotely resembles a historical analogue, because doing so risks endorsing outliers that our ancestors would never have accepted,” Thomas wrote.
If some justices on Tuesday suggested Wright’s argument was too broad, the same was true of Prelogar’s argument that the Second Amendment protected only “law-abiding, responsible citizens."
It can be “irresponsible” not to take out your recycling, said Chief Justice John G. Roberts Jr.
“Could I just say dangerous?” asked Justice Amy Coney Barrett.
The case is United States v. Rahimi.
