Supreme Court justices on Tuesday appeared to side with the Biden administration‘s appeal of a lower court ruling that struck a federal statute barring people under a domestic violence restraining order from possessing a gun, teeing up a possible narrow ruling over the law in question.
United States v. Rahimi is the high court’s first major Second Amendment case since Justice Clarence Thomas and the Republican-appointed majority ruled 6-3 that firearms regulations must be consistent with the nation’s “historical tradition.” That case, New York State Rifle & Pistol Association v. Bruen, featured a successful challenge to the Empire State’s handgun licensing regime and established a new legal framework for evaluating gun laws.
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The U.S. Court of Appeals for the 5th Circuit sided with Texan Zackey Rahimi earlier this year, holding that 18 U.S.C. § 922(g)(8), a federal law blocking anyone subject to domestic violence restraining orders from possessing a gun, violates the Second Amendment right to keep and bear arms. That prompted a strict rebuke from Attorney General Merrick Garland, who appealed the case to the nation’s highest court.
“The only difference between a battered woman and a dead woman is the presence of a gun,” Justice Department Solicitor General Elizabeth Prelogar told the justices on Tuesday at the start of nearly 100 minutes of arguments.
Chief Justice John Roberts asked Prelogar what test the high court should adopt to quell its concerns about the way the 5th Circuit ruled for Rahimi, who is facing separate charges for disorderly and violent use of a firearm in public, and whether that test should consider a person’s risk to society.
“Just to be clear, your argument today is that [the Second Amendment] doesn’t apply to people who present the threat of dangerousness, whether you want to characterize them as responsible or irresponsible, whatever the test that you’re asking us to adopt turns on dangerousness,” Roberts said.
“Correct. For those who are not responsible citizens,” Prelogar replied. “I do want to be clear that we think there are different principles that apply with those who are not law-abiding.”
Thomas asked Prelogar at one point whether it was her argument that “not responsible” and “dangerous” mean the same thing in the context of disarming some citizens.
“This case focuses on the ‘not responsible citizens’ principle and, in this context, we think that history and tradition show that it applies to those whose possession of firearms would pose an unusual danger beyond the ordinary citizen with respect to harm to themselves or harm to others,” Prelogar said.
Several Republican-appointed justices, including Amy Coney Barrett, Brett Kavanaugh, Neil Gorsuch, and Roberts, appeared reluctant to agree that the 5th Circuit’s interpretation of Bruen aligned with their view of what that landmark case means, a point that became clear once public defender J. Matthew Wright, who represents Rahimi, presented his case.
Kavanaugh and Barrett wrote concurring statements in Bruen. In his concurrence, Kavanaugh wrote, “Properly interpreted, the Second Amendment allows a variety of gun regulations,” listing off examples such as the disarmament of the mentally ill, restrictions on qualifications of the commercial sale of guns, and some restrictions on bringing guns into sensitive places such as schools or government buildings.
Some justices seemed skeptical of the arguments in favor of allowing accused domestic abusers to have guns.
Justice Elena Kagan, who joined the minority in the Bruen decision, suggested Wright was “running away from [his] argument … because the implications of your argument are just so untenable that you have to say, ‘No, that’s not really my argument.’” That sentiment was compounded when Barrett admitted she was “so confused” over Wright’s argument.
Wright said he was departing from the legal test courts had long embraced before Bruen, which balanced the government’s interest against the right to carry arms. Instead, Wright said, he was working within the new historic standard the Supreme Court set just one year ago.
The 5th Circuit ruling for Rahimi earlier this year came as lower courts have been grappling with the changes Bruen created for gun regulations. Since then, more than a dozen state and federal laws have been completely or partially invalidated, according to a 2023 study published in the Duke Law Journal.
Meanwhile, gun control and domestic violence advocates have seized on the case as a moment to raise awareness about domestic violence statistics across the nation, pointing to the 54% of domestic homicides that involve a firearm, according to a 2020 study published in the Journal of the American Academy of Psychiatry and the Law.
An eventual opinion could be narrowly tailored to the facts of the case and could simply make clear that the Second Amendment doesn’t apply to people who have been placed under a domestic violence restraining order, if the justices rule in favor of the government.
The Supreme Court will also hear two other firearms-related cases this term, although they won’t address the Second Amendment in the way that Rahimi does.
One case challenges the federal ban on bump stocks, which are attachments that make semiautomatic rifles fire more rapidly. The case asks whether the Trump-era Bureau of Alcohol, Tobacco, Firearms, and Explosives exceeded its authority when it reclassified bump stocks as “machine guns” under the National Firearms Act, banned the attachments in 2019, and told bump stock owners to destroy them or turn them in to the ATF.
The other case involves the First Amendment and was brought by the National Rifle Association over the group’s claims that the former head of New York’s Department of Financial Services tried to coerce banks and insurance companies to sever ties with the gun rights organization.
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The NRA alleges Maria Vullo, who served as superintendent of the state agency, violated the organization’s free speech rights by threatening regulatory retaliation if they did business with the group.
Both cases will be heard early next year, and decisions in all three gun-related cases are due by the end of June.