The Supreme Court appeared poised Tuesday to rule that the government can disarm people under domestic violence orders, limiting last year’s emergency gun rights ruling.
Several conservative justices, during a spirited if largely one-sided argument, appeared to be seeking a narrow rationale that would not require them to depart significantly from a new Second Amendment test the court announced last year in a significant expansion of people’s right to bear arms. to the public. Under the new standard, the justices said lower courts must look to history to evaluate the constitutionality of gun control measures.
But conservative justices on Tuesday appeared ready to accept that a court’s finding of dangerousness in the context of a domestic violence case is enough to uphold a federal law making it a crime for people subject to such orders to possess a gun — even if there wasn’t one. a founding-era measure just like the one at issue in this case.
“Someone who poses a risk of domestic violence is dangerous,” said Judge Amy Coney Barrett, adding that other restrictions on gun rights raise more difficult questions.
In contrast, the liberal justices seemed keen to use the case to revisit the history-based test. “What’s the point of going to the founding era?” asked Justice Ketanji Brown Jackson.
Solicitor General Elizabeth B. Prelogar, defending the law, said there is a great deal of historical precedent for disarming people who have not, in the language of earlier Second Amendment decisions, been respected and held accountable. It appeared that only Justices Clarence Thomas and Samuel A. Alito Jr. consistently skeptical of Ms. Prelogar’s defense of the law, emphasizing that the contested protection order is the product of a summary civil proceeding.
By contrast, Justice Neil M. Gorsuch raised a series of questions in sketching a minimalist ruling upholding the law, suggesting the case before the court was easy.
“We actually have a finding of a credible threat,” he said. “The danger argument seems most obvious there.”
Two other members of the court appointed by President Donald J. Trump — Judges Barrett and Brett M. Kavanaugh — made similar comments. Judge Kavanaugh, for example, noted government statistics showing that more than 75,000 attempts to purchase firearms by individuals subject to family restraining orders were denied under the federal background check program.
There was general agreement that the combination of domestic conflict and firearms can be deadly. This was recognized by the Supreme Court itself 2014 majority opinion. “Too often, the only difference between a battered woman and a dead woman is the presence of a gun,” Justice Sonia Sotomayor wrote for the court, quoting the lawmaker.
But the ramifications of the decision in the new case could extend far beyond domestic violence. That could make a significant statement about the meaning of last year’s ruling that said Americans have a broad right to bear arms in public.
The argument came as the nation grapples with a seemingly endless series of mass shootings, including most recently in Maine that left 18 dead.
In last year’s decision, New York State Rifle and Pistol Association v. Bruen, the court struck down a New York law that strictly limited the carrying of guns outside the home by a 6-3 vote. He also announced a new legal standard, whose reliance on historical practice has sown confusion as courts have struggled to apply it and some judges have struck down gun control laws that have been on the books for decades.
The majority opinion in Bruen, written by Justice Thomas, said courts must now judge restrictions on gun rights by turning to early American history as a guide. “The government must demonstrate,” he wrote, “that the regulation is consistent with this nation’s historical tradition of firearms regulation.”
new case, United States v. Rahimino. 22-915, gives the court an opportunity to explore the scope of that new test.
The case began in 2019, when Mr. Rahimi assaulted his girlfriend and threatened to shoot her if she told anyone, prompting her to obtain a restraining order. The order suspended the license of Mr. Rahimi for weapons and is prohibited from possessing firearms.
Mr. Rahimi defied the order in a flagrant manner, according to court records.
He threatened the other woman with a gun, leading to charges of assault with a deadly weapon. Then, in the space of two months, he opened fire five times in public.
The appeals court, the U.S. Court of Appeals for the Fifth Circuit, rejected a series of old laws the government identified as possible historical analogs, saying they did not closely resemble one related to domestic violence orders.
Justice Elena Kagan asked Ms. Prelogar for “any helpful guidance that we can provide to the lower courts about the methodology that Bruen requires to be used and how that applies to cases even beyond this one.”
Mrs. Prelogar made three points. Courts should look to historical sources beyond enacted laws to discover historical understanding, she said. When reviewing old laws, she added, courts should look for enduring principles at a high level of generality, and not fixate on minor differences between old and new laws.
Finally, she said, the absence of old laws should not be decisive. “So, for example, we don’t have a regulation here that disarms domestic abusers,” she said. “But there’s nothing on the other side of the interpretive question in this case to suggest that anyone thought you couldn’t disarm domestic abusers or that you couldn’t disarm dangerous people.”
Judge Jackson indicated that lawmakers considering new gun laws should not do historical research.
“Let’s say I’m a legislator in Maine today, for example, and I’m very concerned about what happened in that community and my people, the constituents, are asking me to do something,” she told Ms. Prelogar. “Do you read Bruen as, as a first step, going into the archives and trying to determine whether or not there is any historical analogue for the kinds of laws I’m considering?”
Ms. Prelogar replied that history counts, but only to provide a general principle.
The case concerns Zackey Rahimi, a Texas drug dealer with a history of gun violence. He is “hardly a model citizen,” a federal appeals court judge wrote in March. However, the court overturned the conviction of Mr. Rahimi under a federal law that makes it a crime for people subject to domestic violence orders to have guns, ruling that the law violated the Second Amendment.
Chief Justice John G. Roberts Jr. said he had no doubt that Mr. Rahimi, who has been charged in a string of shootings, posed a threat to public safety.
“You don’t doubt that your client is a dangerous person, do you?” The chief justice asked Mr. Rahimi’s lawyer, J. Matthew Wright.
Mr Wright said he “would like to know what ‘dangerous person’ means.”
Chief Justice Roberts provided the definition. “Someone who shoots people,” he said. “It’s a good start.”
Mr. Wright withdrew. “That’s fair,” he said.
In general, the argument of Mr. Wright was not focused, frustrating the judges.
“I’m so confused,” said Judge Amy Coney Barrett.
Chief Justice Roberts, after hearing the concession, said: “I understand your response to say that there will be circumstances in which someone might prove dangerous enough to have their guns taken away. And why is that not the end of the case?”
Justice Kagan told Mr. Wright that “I feel like you’re running away from your argument.”
“You know,” she said, “because the implications of your argument are so untenable, you have to say, no, that’s not really my argument.”