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No guns for Runaway!

Court seems likely to allow gun bans for those under protective orders [washingtonpost.com]:

The Supreme Court on Tuesday appeared likely to uphold a federal statute disarming people who are subject to domestic-violence protective orders, signaling a reluctance to make that issue the next frontier in the court’s recent efforts to expand Second Amendment rights.

Justices on both sides of the court’s ideological divide seemed to think t [supremecourt.gov]he Constitution does not prohibit legislatures from restricting firearm possession among individuals who are found to be a danger. During oral arguments Tuesday morning, some of the justices suggested they did not have to go much further than that to decide the case at hand.

The backdrop was fallout from the court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen [washingtonpost.com], which requires the government to point to historical analogues when defending laws that limit Second Amendment rights.

Solicitor General Elizabeth B. Prelogar, representing the Biden administration, said the U.S. Court of Appeals for the 5th Circuit — considering a Texas man arrested for possessing guns after a state court had imposed a restraining order — had “profoundly erred” in finding that a federal law meant to protect victims of domestic abuse was unconstitutional. The law, Prelogar said, satisfies both the Constitution and “common sense.”

“Throughout our nation’s history, legislatures have disarmed those who have committed serious criminal conduct or whose access to guns poses a danger — for example, loyalists, rebels, minors, individuals with mental illness, felons, and drug addicts,” Prelogar said. There is “no historical evidence that those laws were thought to violate the right to keep and bear arms.”

She said the 5th Circuit’s opinion was part of a “profound misreading that many lower courts have been adopting” in trying to apply the Bruen decision to gun restrictions across the country.

Only Justices Clarence Thomas and Samuel A. Alito Jr. closely questioned Prelogar’s defense of the law. But it was unclear whether the justices had an appetite for broadlyclarifying a test they imposed just last year, or were looking for a narrow way to resolve the issue at hand.

The challenge to the domestic-violence order restrictions was brought by Zackey Rahimi, a drug dealer who was placedunder a restraining order [washingtonpost.com] after a 2019 argument with his girlfriend in a parking lot turned violent. According to court records, Rahimi knocked the woman to the ground, dragged her back to his car, picked her up and pushed her inside and fired a shot at a bystander. The girlfriend escaped, but Rahimi later called her and threatened to shoot her if she told anyone about the assault.

A Texas court found that Rahimi had “committed family violence” and that such violence was “likely to occur again in the future.” It issued a protectiveorder that suspended his gun license, prohibited him from having guns and warned him that possessing a firearm while the order remained in effect might be a federal felony. Rahimi continued to fire guns in public in a series of events.

In early 2021,Rahimi wasarrested at his Texas home, and police found “a .45-caliber pistol, a .308-caliber rifle, magazines, ammunition, and a copy of the protective order,” the government said in its brief. He was charged with illegally possessing a weapon.

Rahimi said his right to a gun was protected by the Second Amendment. After a judge ruled against him on that issue, he pleaded guilty to the federal charge and received a sentence of six years in prison. He continued to challenge the law, and the 5th Circuit reheard his case after Bruen was decided.

In Bruen, the justices voted 6-3 to strike down a century-old New York state law [supremecourt.gov] requiring a special need to carry a firearm outside the home. Thomas, writing for the majority, said government officials cannot justify restrictions on firearms based solely on “an important interest” such as public safety concerns. Instead, he wrote, officials must “demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.”

The analogy does not have to be a “twin,” the court ruled, but must be relevant. “Courts should not uphold every modern law that remotely resembles a historical analogue, because doing so risks endorsing outliers that our ancestors would never have accepted,” Thomas wrote.

The unanimous 5th Circuit panel found Rahimi was among those whose right to a weapon is protected by the Second Amendment. It rejected the historical comparisons advanced by the government to justify the law barring those with protective orders from possessing guns.

Federal public defender J. Matthew Wright, representing Rahimi, said the 5th Circuit got it right, and laws written before the Supreme Court found a Second Amendment right to possess a firearm in the home for protection — including the federal statute Rahimi was found to have violated — were suspect.

Referring to his client, Wright said “this is someone who’s keeping a gun in his home.” The restriction on gun possession by those subject to domestic-violence protection orders “is a total ban,” he said. “And it is punishable by an incredible amount of prison time.”

But under questioning, especially from Justices Elena Kagan and Brett M. Kavanaugh, Wright acknowledged that other areas of federal law might be endangered if the court accepted his argument. One example: background checks that prevent those who are subject to protective orders from buying firearms, a law that Kavanaugh said had resulted in 75,000 gun-purchasing denials in 25 years.

Kagan seized on what she said were inconsistencies in Wright’s defense of the 5th Circuit ruling. “I’ll tell you the honest truth, Mr. Wright,” Kagan said. “I feel like you’re running away from your argument, you know, because the implications of your argument are just so untenable.”

Justices Neil M. Gorsuch and Amy Coney Barrett said a state judge had found a “credible threat” in Rahimi’s case. “The dangerousness argument seems most apparent there,” Gorsuch said.

Chief Justice John G. Roberts Jr. agreed.

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

“Your Honor, I would want to know what ‘dangerous person’ means at the moment,” the lawyer replied.

Roberts responded, to laughter in the courtroom, “Well, it means someone who’s shooting, you know, at people. That’s a good start.”

If some justices on Tuesday suggested Wright’s argument was too broad, the same was true of Prelogar’s argument that the Second Amendment protected only “law-abiding, responsible citizens.”

It can be “irresponsible” not to take out your recycling, Roberts said.

Prelogar said she was only “tracking” the language the court had used in previous rulings, which included the description of law-abiding and responsible citizens. But she eventually acknowledged that “dangerous” could be an acceptable way to define “not responsible” in this context. Prelogar told the justices the government should be free to create some categories of people whoare barred from possessing firearms — those convicted of violent crimes, for instance, or the mentally ill — without having to prove each individual was dangerous.

Justice Ketanji Brown Jackson, who joined the court after the ruling in Bruen, said she was “a little troubled by having a history and traditions test that also requires some sort of culling of the history so that only certain people’s history counts.”

And she wondered how that test could apply in a modern context.

“Let’s say I’m a legislator today in Maine, for example, and I’m very concerned about what has happened in that community, and my people, the constituents, are asking me to do something,” she said to Prelogar, in reference to a mass killing in that state [washingtonpost.com] last month by a man whose threats and mental decline had been reported [washingtonpost.com] to local law enforcement. “Do you read Bruen, as step one, being go to the archives and try to determine whether or not there’s some historical analogue for the kinds of legislation that I’m considering?”

Prelogar said the test doesn’t require a precise match of historical tradition to laws restricting gun possession by certain categories of people.

In questioning Wright, Kagan said the current case pointed out such difficulties.

“You know, 200 some years ago, the problem of domestic violence was conceived very differently,” she said. “People had a different understanding of the harm. People had a different understanding of the right of government to try to prevent the harm. People had different understandings with respect to pretty much every aspect of the problem. So, if you’re looking for a ban on domestic violence, it’s not going to be there.”

The case is United States v. Rahimi.

Original Submission