The U.S. Supreme Court’s new test for weighing the constitutionality of gun regulations comes face-to-face on Tuesday with the nation’s concern about domestic violence and the role that firearms play in it.
In March, the U.S. Court of Appeals for the Fifth Circuit struck down a federal law prohibiting firearm possession by individuals under domestic violence restraining orders. The appellate court ruled that the law, 18 U.S.C. § 922(g)(8), violated the Second Amendment.
Initial reactions to the decision were understandable. Was this another off-the-wall ruling by the most conservative appellate court in the country? After all, statistics are stark about how guns heighten the risk of death in domestic violence incidents and its victims most often are women.
But as illogical and impractical as that ruling seems, the case being argued, United States v. Rahimi, is a case of the Supreme Court’s conservative majority’s own making.
In June 2022, the 6-3 high court majority announced the new test for Second Amendment cases in an opinion by Justice Clarence Thomas. In his opinion in N.Y. State Rifle & Pistol Association v. Bruen, Thomas said that the government, to successfully defend a gun regulation, must prove that the challenged regulation “is consistent with the nation’s historical tradition of firearm regulation.”
In searching history, Thomas explained, the government does not have to find an “historical twin.” Courts, he said, often must use reasoning by analogy to determine whether a historical regulation is a proper analogue for a distinctly modern firearm regulation.
Before the Bruen decision, most courts used a two-step inquiry to determine whether a gun regulation was constitutional. That test often resulted in gun regulations being upheld. Thomas had been very critical of that approach, saying it made the Second Amendment a “constitutional orphan,” a “second class” right.
Under the Bruen test, courts have struck down a number of gun restrictions around the country, including, of course, the federal ban on gun possession by individuals under domestic violence retraining orders.
The Fifth Circuit in Rahimi said the federal ban was an “outlier that our ancestors would never have accepted.”
All of which brings us to Zackey Rahimi and Supreme Court arguments. Because the government lost in the lower court, the Biden Administration brought the appeal to the Supreme Court.
If they had had a choice, gun rights advocates probably would not have selected Rahimi to be their Second Amendment champion. In 2020, a Texas state court imposed a two-year restraining order against him after he physically assaulted his former girlfriend. He repeatedly violated it. Local police also focused on him for a series of five shootings between December 2020 and January 2021. The police, executing a search warrant for his home, discovered a .45 caliber pistol, a .308 caliber rifle, ammunition and magazines, and a copy of the protective order which prohibited him from possessing a firearm.
In the Supreme Court, U.S. solicitor general Elizabeth Prelogar argues that the Second Amendment allows Congress to disarm persons who are not law-abiding, responsible citizens.
“The history of the right to keep and bear arms— before, during, and after the Founding Era—confirms that understanding. English law allowed the government to disarm individuals who were ‘dangerous’ or not ‘peaceable,’” she wrote in her brief. “Second Amendment precursors pro- posed during the Founding Era guaranteed the right to keep and bear arms only to ‘honest and lawful’ citizens or those who posed no ‘danger of public injury.’ And commentators in the 19th century recognized the government’s authority to disarm individuals who were not ‘orderly,’ ‘peaceable,’ or ‘well-disposed.’”
Tradition also confirms that understanding, the solicitor general added. “American legislatures have long disarmed individuals whom they have found to be dangerous, irresponsible, or otherwise unfit to possess arms.” Those individuals included, minors, intoxicated persons, vagrants and, in the 20th century, felons and the mentally ill.
Prelogar notes that 48 states and territories have laws that disarm or authorize courts to disarm individuals under domestic violence restraining orders.
Rahimi’s counsel counters that there is no historical tradition of any similar restriction. “Whatever the founding generation believed about state and local legislatures’ power to restrict firearm ownership, they would have resisted a federal law purporting to say which citizens could, and which citizens could not, keep firearms,” he argues.
Rahimi contends that in the 17th, 18th, and early 19th centuries, Americans, recognizing the “scourge of domestic violence,” used a variety of legal and extra-legal mechanisms to punish, prevent, and deter it. “None of those mechanisms involved disarmament or firearm bans.”
Not surprisingly, the Rahimi case has attracted an array of friend-of-the-court briefs from gun rights groups such as the National Rifle Association, to gun control advocates such as Everytown for Gun Safety, and from historians, law enforcement, civil rights organizations, domestic violence organizations, law professors, and more.
The Rahimi case is the first case in which the justices will be applying their new test since Bruen, but it will not be the last. Lower courts have struck down federal bans on possession by felons and non-violent offenders. There are also pending cases involving assault weapon and magazine restrictions, either struck down or upheld.
A number of federal judges have voiced frustration with the history and tradition test. They are not historians, say some, and are not equipped to do the type of research required by the test. Some nationally respected historians also have questioned the test’s reliance on history which often does not supply a clear answer, they say, and can change as new evidence emerges over time.
Regardless, this particular gun fight is underway now, and how the court resolves it may offer clues to the outcomes of coming fights.
Remember that all of us can tune into the arguments at 10 a.m. ET on Tuesday via a link on the court’s web page (www.supremecourt.gov).
Marcia Coyle is a regular contributor to Constitution Daily and PBS NewsHour. She was the Chief Washington Correspondent for The National Law Journal, covering the Supreme Court for more than 30 years.
