Supreme Court poised to uphold federal domestic-violence gun ban

While the outcome in U.S. v. Rahimi appeared clear, the real debate on Tuesday was over how to decide which gun regulations are allowed going forward.

From LAW DORK, A blog by Chris Geidner, Nov 7, 2023

After 90 minutes of arguments on Tuesday, the U.S. Supreme Court appeared to be extremely likely to uphold the federal law criminalizing firearm possession by those individuals who have a domestic-violence restraining order out against them. The lopsided oral arguments ended with essentially no way to imagine there being five votes on the court to do what Zackey Rahimi is asking — declaring that the federal law is facially invalid, unconstitutional under the Second Amendment, and no longer enforceable against anyone. To the extent there was debate, it was primarily over how the court should be deciding which gun regulations are permitted — as a way to resolve this case, yes, but also for use in future (and even pending) cases.

It was the Supreme Court’s first arguments over a gun restriction since 2022’s decision in New York State Rifle & Pistol Association, Inc. v. Bruen striking down New York’s conceal-carry registration law. The extreme argument advanced by Rahimi faced a strongly skeptical court — and gave oxygen for opponents of Bruen to question Justice Clarence Thomas’s decision in that case.

At one point near the end of the arguments, when the outcome in Tuesday’s case was all but a foregone conclusion, Justice Elena Kagan told Rahimi’s lawyer, J. Matthew Wright, an assistant federal public defender for the Northern District of Texas, that he appeared to be “running away from [his] argument” because it’s “untenable.” Kagan then cut to the chase in a way that was directed to Wright — but also appeared to indirectly send a message to her colleagues in the Bruen majority. “I guess I'm asking you to clarify your argument because you seem to be running away from it because you can't stand what the consequences of it are,” Kagan said.

It really was the bottom line.

We were in the court on Tuesday asking whether the Second Amendment barred the federal government from passing a criminal law banning a person subject to a domestic-violence restraining order from having a firearm. It was an argument only possible in the wake of the past 15 years of Supreme Court gun decisions and, particularly, Thomas’s Bruen decision, with its focus on “history and tradition.” The fact that the case was involving domestic violence undoubtedly had a strong effect on the arguments, with Solicitor General Elizabeth Prelogar and several justices highlighting concerns regarding intimate-partner violence — and the specific, clearly dangerous facts underlying Rahimi’s case. Ultimately, those facts combined with the liberals’ concerns with Bruen itself mean the answer is likely a decision in which the court upholds the federal criminal law by slightly shifting its test — while undoubtedly claiming it is doing no such thing.

Kagan wasn’t alone in using Tuesday’s arguments to push back on Bruen.Justice Ketanji Brown Jackson squarely confronted the “history and tradition” test, by way of questioning the federal government’s decision not to include discussion of historical gun restrictions for slaves and Native Americans in its arguments. In response to questions from Justice Clarence Thomas about its decision not to rely on those restrictions, Solicitor General Elizabeth Prelogar earlier, while describing them as “odious classification[s],” had said they weren’t invoked here because they applied to people who “were viewed as being not among the people protected by the Second Amendment in the first instance.” For Jackson, odious or not, those restrictions might be relevant if your test is going to be wholly dependent on history and tradition. “I'm trying to understand if there’s a flaw in the history and traditions kind of framework to the extent that when we're looking at history and tradition, we're not considering the history and tradition of all of the people but only some of the people, as per the government's articulation of the test?” she asked Prelogar — and, perhaps, all of us.

While there was significant debate over the test, there wasn’t as much debate over the case. When it comes to the resolution of Rahimi’s claim, none of the justices explicitly backed his argument that the federal law should be held facially invalid, with many expressing skepticism. As Chief Justice John Roberts said at one point to Rahimi’s lawyer, “I understand your answer to say that there will be circumstances where someone could be shown to be sufficiently dangerous that the firearm can be taken from him.” When Wright responded yes, Roberts replied, “And why isn’t that the end of the case?” Although Wright attempted to draw a distinction between taking someone’s firearm from them and criminalizing them for having a firearm under those same circumstances — “Can you be punished for keeping a firearm?” as he described his case later — the argument did not appear to have any real traction on Tuesday.

Worse for Rahimi than the lack of explicit support, some of the conservative justices from the Bruen majority — particularly Justices Neil Gorsuch and Amy Coney Barrett — voiced specific concerns about whether the facial argument went too far. Gorsuch, in particular, focused on the availability of case-by-case challenges, called as-applied challenges, that people could raise to potential problems with the way the law is used. These included questions about whether due process was given in a particular case; whether the length of the domestic-violence order — especially an open-ended order — could lead to a challenge; and how circumstances involving self-defense or necessity would be addressed.

What’s the test?

Again though, much of the discussion on Tuesday was over the test being applied by Prelogar: “Congress may disarm those who are not law-abiding, responsible citizens.” As she told the court repeatedly, that language comes from Bruen, as well as the earlier gun cases, and is not a test the Biden administration came up with on its own. But, what that means — and whether it should be the test — was up for debate. Asserting that she was applying a “history and tradition” examination to the issue, as required under Bruen, Prelogar explained that the administration views the “law-abiding” language as meaning that those convicted of “serious” crimes — which she set at felonies — can face firearm restrictions. The “responsible” language — at issue in Rahimi’s case — would mean that “those whose possession of firearms would pose an unusual danger, beyond the ordinary citizen, with respect to harm to themselves or harm to others” can face restrictions.

Throughout the argument, several of the conservative justices questioned this “responsible” portion of Prelogar’s proposed interpretation, with Roberts calling “responsibility … a very broad concept” in trying to get Prelogar to specify her test further. In response, she explained that their understanding of the “responsible” portion is “intrinsically tied to the danger you would present if you have access to firearms.” After some back and forth, Prelogar explained that the reason why she believed “not responsible” makes sense — again, she said, as used by the court — as opposed to simply saying “dangerousness” is the standard:

[I]t gets at the idea that some of the categories of people who can be disarmed might not intend to be dangerous. They might not be culpable in that sense, like the mentally ill or minors, and so I think “responsibility” gets at the idea that they might not actually intend to be a danger but, in fact, would present a danger if they had firearms.

Later, however, Barrett pushed back on the discussion, asking whether the court’s use of that language was ever intended to allow limits for those who aren’t “law-abiding” and “responsible” or whether, as Barrett said, that language was just used “to describe the would-be gun owners in those cases.” Nonetheless, Barrett wasn’t seeming to raise that in support of Rahimi so much as she was raising it to put forward what she viewed as a more direct — and possibly more narrow — “dangerousness” test. Even that, though — if interpreted to allow the “not culpable but dangerous” categories that Prelogar referenced — did not face any strong opposition from the federal government on Tuesday.

A decision in the case, U.S. v. Rahimi, is expected by the end of June 2024, but it could come earlier.