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Supreme Court clarifies when a gun law is constitutional

8-1 opinion upholds a federal ban on firearms possession related to domestic violence restraining orders

Activists rally outside the Supreme Court in November before the start of oral arguments in the United States v. Rahimi case.
Activists rally outside the Supreme Court in November before the start of oral arguments in the United States v. Rahimi case. (Bill Clark/CQ Roll Call)

The Supreme Court clarified on Friday how it analyzes whether a gun control law is constitutional, in a decision that upheld a federal ban on firearms possession for people subject to certain domestic violence restraining orders.

The 8-1 decision in United States v. Rahimi found that Congress had the power to restrict firearms possession for people who had proven themselves irresponsible or dangerous.

The opinion, authored by Chief Justice John G. Roberts Jr., said that a law can impose criminal penalties for gun possession without violating the Second Amendment as long as a judge finds the person to be a danger to others.

Much of the ruling expounded on what the Supreme Court had ruled in a 2022 decision that expanded gun rights, which stated that gun control provisions had to comport with the text and “historical tradition” of the Second Amendment.

That decision in New York State Rifle & Pistol Association v. Bruen prompted more than a half-dozen courts to toss gun restrictions such as requirements that firearms have serial numbers and bans on possessing firearms in mass transit.

That includes the case at issue Friday, where the U.S. Court of Appeals for the 5th Circuit threw out the charges against the defendant, Zackey Rahimi.

Friday’s decision was a sharp change for the justices and left the author of the original Bruen decision, Justice Clarence Thomas, as the lone dissenter.

Roberts wrote in the decision that lower courts have “misunderstood” the court’s 2022 decision.

Gun control laws can be constitutional as long as they generally matched historical laws, rather than requiring an exact match, Roberts wrote.

Judges can uphold gun control laws as long as they have a “historical analogue” and do not require a “historical twin,” he wrote, and the 2022 decision was “not meant to suggest a law trapped in amber.”

Roberts wrote that “the Second Amendment permits more than just those regulations identical to ones that could be found in 1791. Holding otherwise would be as mistaken as applying the protections of the right only to muskets and sabers.”

Congress’ effort to keep guns out of the hands of domestic abusers fit with the “history and tradition” of firearms law, where courts could disarm people found to be a danger to others, the decision states.

“Since the founding, our Nation’s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms,” the decision said.

The case was the first of dozens citing the Bruen decision to work their way up to the justices since 2022. The Rahimi decision could also impact the Supreme Court’s own docket, where half a dozen legal challenges to gun laws in Illinois and elsewhere are waiting on appeal.

However, Roberts noted the limits of the decision, including turning away an even broader argument from the Biden administration, who had claimed that the government could ban firearms for people shown not to be “responsible.”

Further explanation

Thomas, in his dissent, wrote that the court should have pointed to at least a single historical statute that justified the charges against Rahimi, and it had not.

Thomas argued that the majority missed the purpose of his Bruen decision, which was meant to require an exact historical example justifying the present-day law.

“The Court’s contrary approach of mixing and matching historical laws — relying on one law’s burden and another law’s justification — defeats the purpose of a historical inquiry altogether,” Thomas wrote.

Justices Brett M. Kavanaugh, Neil M. Gorsuch and Amy Coney Barrett wrote separate concurring opinions defending the majority’s historical approach to gun control law. Barrett noted that courts have “struggled” with how to analyze gun control laws in the wake of the Bruen decision.

Barrett wrote that the 5th Circuit’s approach in the Rahimi case was “flawed” and said the approach was too narrow.

Justice Sonia Sotomayor, joined by Justice Elena Kagan, wrote separately supporting the majority opinion but criticized the emphasis on history in both Bruen and Friday’s Rahimi decision.

“History has a role to play in Second Amendment analysis, but a rigid adherence to history, (particularly history predating the inclusion of women and people of color as full members of the polity), impoverishes constitutional interpretation and hamstrings our democracy,” Sotomayor wrote.

Justice Ketanji Brown Jackson filed a separate concurring opinion where she said the “apparent difficulty” lower courts had in applying the Bruen decision showed it was fundamentally flawed.

“The message that lower courts are sending now in Second Amendment cases could not be clearer. They say there is little method to Bruen’s madness,” Jackson wrote.

Friday’s decision drew praise from the Biden administration, the Justice Department as well as gun control advocates.

President Joe Biden praised the decision in a statement Friday and called on Congress to pass further gun control legislation.

“No one who has been abused should have to worry about their abuser getting a gun. As a result of today’s ruling, survivors of domestic violence and their families will still be able to count on critical protections, just as they have for the past three decades,” Biden said.

Attorney General Merrick B. Garland in a statement praised the court for upholding a “commonsense” law.

“The Justice Department will continue to enforce this important statute, which for nearly 30 years has helped to protect victims and survivors of domestic violence from their abusers. And we will continue to deploy all available resources to support law enforcement, prosecutors, courts, and victim advocates to address the pervasive problem of domestic violence,” Garland said.

The case came to the justices after a 5th Circuit decision holding that the law, which prohibits gun possession for people subject to certain state-level civil domestic violence restraining orders, violated the Constitution.

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 after the Bruen decision in 2022.

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