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Supreme Court sounds ready to keep domestic violence gun possession ban

Justices at oral argument aired skepticism that Congress couldn’t disarm ‘dangerous’ people

Activists rally outside the Supreme Court before the start of oral arguments Tuesday in a Second Amendment case.
Activists rally outside the Supreme Court before the start of oral arguments Tuesday in a Second Amendment case. (Bill Clark/CQ Roll Call)

Most of the Supreme Court appeared ready during oral arguments Tuesday to uphold Congress’ power to ban gun possession for people subject to certain domestic violence restraining orders.

Justices on both the liberal and conservative wings of the court sounded skeptical of a U.S. Court of Appeals for the 5th Circuit ruling earlier this year that found the 1994 law violated the Second Amendment right to possess firearms.

The arguments also left the justices grappling with the fallout of a Supreme Court decision last year that expanded gun rights, New York State Rifle & Pistol Association Inc. v. Bruen. That decision stated that gun control provisions had to comport with the text and “historical tradition” of the Second Amendment, a reasoning that has led lower courts to strike down some gun control laws.

On Tuesday, J. Matthew Wright, an attorney for the defendant in this case, Zackey Rahimi, argued that there was no “history or tradition” to justify a federal law that would make it a felony for people to possess a gun in their home just because there is a local domestic violence order against them. Chief Justice John G. Roberts Jr. and other justices pointed out that that conflicts with the country’s history generally of disarming people found to be “dangerous” to themselves or the public.

“You don’t have any doubt that your client is a dangerous person, do you?” Roberts said.

Wright responded that he didn’t have a working definition of “dangerousness.”

“Someone who is going around shooting at people is a pretty good start,” Roberts said, referring to some of Rahimi’s alleged conduct.

According to court records, Rahimi had a criminal record and was placed under a domestic violence restraining order in 2020. After another incident in which Rahimi threatened a woman with a gun and fired a weapon in public, investigators obtained a search warrant.

They found firearms in his home and charged him with a violation of the domestic violence order statute. Rahimi initially pleaded guilty but then challenged the law’s constitutionality.

Wright said the law used a domestic violence order process to deprive citizens of a fundamental right to bear arms.

Justice Amy Coney Barrett pointed out that the domestic violence order directly barred Rahimi from possessing firearms. At one point, Justice Elena Kagan said Wright was “running away” from his positions in the case because of their implications for other “common sense” gun control provisions.

Courts in dozens of cases since the Bruen decision have cited it to rule against gun restrictions, such as serial number requirements and restrictions on gun possession on New York subways.

Kagan said Tuesday that the court could use the case to address the “confusion about what Bruen means and what Bruen requires in the lower courts.”

Solicitor General Elizabeth Prelogar warned the justices Tuesday about the “profoundly destabilizing” effect that decision has had. She said the court should allow Congress to pass laws that disarm people who are not “law-abiding, responsible citizens.”

Prelogar argued the “law-abiding” portion could cover disarming convicted felons and “responsible” could cover laws that disarm people found to be otherwise dangerous or mentally ill. And she pointed to court decisions that have pointed to the absence of “dead ringer” historical analogues to overturn long-standing gun laws, such as the 5th Circuit’s decision in this case.

“There is no other constitutional right dictated exclusively by whether there was a particular law on the books in 1791,” Prelogar said.

Prelogar pointed to a historical tradition of disarming minors or people who are mentally ill and may not have the ability to be held criminally responsible for dangerous behavior.

Some conservative justices questioned the Biden administration’s effort to use the case to defend gun control provisions more broadly.

But the justices will likely have to soon decide more cases on the issue, as Prelogar brought up in a discussion with Justice Neil M. Gorsuch.

Prelogar pointed out that if the justices issue a decision on only this part of the law, the administration has already launched another appeal of a 5th Circuit decision on another part of the same law.

“So unless you want to see me here again next term on this issue …” Prelogar said.

“Always delighted to see you, General,” Gorsuch said to laughter in the courtroom.

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