Washington — When the Supreme Court convenes Tuesday, it will be confronted with a high-stakes case that pits the Second Amendment right to bear arms against a law that seeks to protect victims of domestic violence by keeping guns away from their alleged abusers.
Arguments in the dispute are the first the court will hear since its conservative majority imposed a new test for assessing whether a firearms restriction passes constitutional muster, which has sparked confusion and frustration among the nation’s federal judges as they navigate new challenges to longstanding laws.
But the proceedings are also set against the backdrop of the latest mass shooting to rattle an American community, coming less than two weeks afterin Lewiston, Maine, which has again prompted calls for federal action to combat gun violence.
The dispute before the justices involves a law enacted by Congress nearly 30 years ago that prohibits people under domestic violence restraining orders from having firearms. Zackey Rahimi, a Texas man, was subject to such a restraining order granted to a former girlfriend in February 2020 when he threatened another woman with a gun and fired guns in public on five separate occasions in December 2020 and January 2021.
Following the incidents and after police found two guns at his residence while executing a search warrant, Rahimi was indicted for unlawfully having a gun while under a domestic violence restraining order under the 1994 law. He pleaded guilty, but challenged the constitutionality of the near-30-year-old prohibition, arguing it is unconstitutional under the Second Amendment.
The 5th U.S. Circuit Court of Appeals ultimately tossed out Rahimi’s conviction and struck down the gun law under a new legal test for determining whether firearms restrictions comport with the Constitution.
Under that test, government must put forth laws that are analogous to the modern-day measure in question in order to show that it fits within the nation’s history and tradition of firearms regulation.in a landmark decision nearly 17 months ago, the
The 5th Circuit said the analogues offered by prosecutors during its historical inquiry “fall short,” and concluded that law “falls outside the class of firearm regulations countenanced by the Second Amendment.” The Justice Department appealed to the Supreme Court, whichto review the 5th Circuit’s decision.
“The court didn’t really have much choice about taking this case,” said Nelson Lund, a law professor at George Mason University. “After the 5th Circuit declared the statute unconstitutional, the solicitor general pretty much had to seek cert, and the court probably felt compelled to take the case because a federal statute had been declared unconstitutional.”
Lund said that he expects there will be “considerable discussion about exactly what Bruen requires the government to prove” during arguments, a reference to the Supreme Court’s decision last year in the case New York State Rifle and Pistol Association v. Bruen.
The Biden administration said in a filing that history and tradition establish that the Second Amendment allows Congress to disarm people who are not “law-abiding, responsible citizens,” and cited laws dating back to the founding that disarmed people found to be dangerous. Solicitor General Elizabeth Prelogar, who represents the government before the Supreme Court, also warned that the presence of a gun substantially increases the chance of domestic violence escalating to homicide.
“This Court has recognized,” Prelogar wrote, that “the only difference between a battered woman and a dead woman is the presence of a gun,” a reference to an opinion written by Justice Sonia Sotomayor for a unanimous court in 2014.
In its 2022 decision, the court was “emphatic that the nation’s history and tradition of firearms regulation give Congress and the states ample room to protect the public — including by disarming those who are not law-abiding, responsible citizens,” Prelogar argued, adding that the gun law at issue “falls squarely within that established tradition.”
As a result of the law, the national background check system has prevented more than 77,000 gun purchases by people subject to domestic violence restraining orders since its inception in 1998, said Jennifer Becker of the Battered Women’s Justice Project.
“This is not about taking everyone’s guns away,” Becker said. “This is about temporarily taking guns away from people who have been determined by a court to be currently dangerous.”
But Rahimi, represented by federal public defenders, said in a filing to the justices that there is nothing akin to the federal law disarming people under domestic violence restraining orders in the country’s historical tradition, which means the measure is unconstitutional under the court’s framework.
“Although a ‘historical twin’ is not necessary, the government cannot point to a close relative, a distant cousin, or anything bearing even a passing resemblance,” Rahimi’s lawyers wrote.
The case is the first involving gun rights that the justices will hear since their June 2022 decision, and it presents the court with its first opportunity to clarify how lower courts should apply the so-called history-and-tradition test. Since the court’s 6-3 conservative majority issued its Second Amendment ruling, courts weighing challenges to widely accepted firearms laws have issued conflicting decisions, and restrictions barring felons from having firearms and disarming people using illegal drugs have been invalidated.
“Rahimi is not just important because of the law at issue and the lives placed directly at risk if this law does not survive, but also because the court has that opportunity to course correct,” said Esther Sanchez-Gomez, litigation director at Giffords Law Center. “It must use this case to provide additional guidance on what this new history-bound test requires, how courts should apply it, and make crystal clear the assurance and caveats the justices made [in past Second Amendment cases], which is that a variety of gun laws are constitutional.”
Shira Feldman, director of constitutional litigation at Brady, a gun control advocacy organization, said she is looking to the Supreme Court to provide guidance about the historical inquiry courts must now conduct and what are sufficient analogues for a modern-day regulations, including how many such laws are needed for the government to meet its burden, where they must be from and whether they have to cover certain numbers of people or geographical areas.
“These are questions that Bruen doesn’t answer and that a lot of courts have been struggling with,” she said.
The dispute has attracted input from a slew of pro-Second Amendment and gun control groups, Democratic lawmakers, and prosecutors and public defenders, who submitted friend-of-the-court briefs to the justices.
Of the parties weighing in, many of their positions have fallen along familiar lines, with pro-Second Amendment groups favoring more expansive gun rights, and Democrats and gun control organizations urging the court to allow certain firearms restrictions.
But Rahimi’s case has also led to some surprising alliances: The National Association of Criminal Defense Lawyers and National Association of Federal Defenders are backing Rahimi in the case, putting them on the same side as firearms rights groups like the National Rifle Association and Gun Owners of America.
The National Association of Federal Defenders argued the Second Amendment right to bear arms is not limited to just “law-abiding, responsible” citizens, while the National Association of Criminal Defense Lawyers told the court that protection orders aren’t limited only to people who are not “law-abiding,” yet they would still be subject to prosecution under the disarmament law. Both groups, which represent federal public and community defenders and criminal defense attorneys, raised concerns that limiting the Second Amendment right only to those deemed to be “law-abiding” and “responsible” is unclear and could sweep too broadly.
Meanwhile, Tarrant County Criminal District Attorney Phil Sorrells, a self-described conservative Republican with endorsements from former President Donald Trump and former Texas Gov. Rick Perry, and other prosecutors throughout Texas are supporting the Biden administration and argue the Second Amendment does not protect defendants like Rahimi.
“For those who are subject to a protective order, the overwhelming evidence establishes that their firearms are not for self-defense. They are not being kept for a lawful purpose. They are weapons of intimidation, fear, and control,” Sorrells and his fellow Texas prosecutors told the court.
A decision is expected by the end of June.