Supreme Court leans toward allowing gun bans for domestic violence abusers

WASHINGTON, Nov. 7 (UPI) -- After more than 90 minutes of oral arguments, Supreme Court justices on Tuesday seemed inclined to side with the Biden administration, which argued that it is "common sense" to prevent dangerous people from possessing firearms.

The case before the court, United States vs. Rahimi, involves a Texas man, Zackey Rahimi, who was convicted under a federal law that prohibits individuals from owning firearms if they are "subject to a court order that restrains [them] from harassing, stalking, or threatening an intimate partner."

Rahimi appealed his conviction, arguing that the federal law violated his Second Amendment right to bear arms.

The case is being watched closely by a host of organizations, from staunch supporters of gun rights to advocates for domestic violence, to see how far the high court will go in putting limits on the Second Amendment.

During the oral arguments, some of the conservative justices seemed skeptical of the arguments made by Rahimi's lawyer.

Justice Neil Gorsuch appeared to suggest that the federal law in question was completely justified because Rahimi posed a "credible threat" when in possession of firearms.

Rahimi was subject to a restraining order by a Texas court in 2020 after his ex-girlfriend reported that he physically assaulted her and threatened to shoot her if she told anyone.

In the following two-month period, Rahimi was involved in five separate shooting incidents, including shooting into someone's home with an AR-15 in response to social media comments and firing multiple shots into the air after his friend's credit card was declined at a Whataburger restaurant.

Solicitor General Elizabeth Prelogar, who represented the Biden administration, defended the federal law at the center of the case. She cited Justice Sonia Sotomayor's majority opinion in United States vs. Castleman: "All too often, the only difference between a battered woman and a dead woman is the presence of a gun."

This is the court's first Second Amendment case since its 2022 ruling in New York State Rifle & Pistol Association Inc. vs. Bruen, which called on courts to evaluate gun regulations based not in consideration of the public good, but rather on the "historical tradition of firearm regulation," as Justice Clarence Thomas wrote in the majority opinion.

The U.S. Court of Appeals for the Fifth Circuit originally upheld the federal law, before reversing its decision in favor of Rahimi after the Bruen ruling.

Bruen's "history and tradition" test was the crux of Tuesday's oral arguments.

Prelogar told the justices that, under the Bruen decision, the government merely has to show that the gun restriction has a "well-established and representative historical analogue" for laws that disarm individuals who are not "law-abiding, responsible citizens."

In other words, instead of "nitpicking historical analogues" in the law by trying to find a specific ban on gun possession for domestic abusers, Prelogar said courts should look generally. In this case, there has generally been a history of keeping guns away from "not responsible" citizens who pose a danger to others.

Several of the court's more conservative justices pressed Prelogar on whether "not responsible" is the same thing as "dangerous."

"Responsibility is a very broad concept," Roberts said after asking, hypothetically, whether someone who drives 35 mph in a 25-mph zone would qualify as "law-abiding."

Prelogar clarified that "history and tradition support the conclusion that you can disarm those who have committed serious crimes," and are thus irresponsible citizens. She added that not just any kind of offense, like a misdemeanor, would qualify.

Rahimi's attorney, J. Matthew Wright, argued that the court must find a similar ban in U.S. history to uphold the federal law.

"If we don't find that similar ban, we say that the government has no right to do anything?" Justice Elena Kagan asked.

Wright responded that "that's largely what Bruen says."

Justice Amy Coney Barrett said she was "so confused" by his argument.

At one point, Chief Justice John Roberts even led Wright to concede that his client is a dangerous person.

Wright tried to explain that the federal law was unconstitutional because of its broad ban on firearms in all places, even in an individual's private home. However, in doing so, he acknowledged that other areas of federal law, like background checks, might be at risk if the court accepts his argument.

"I'll tell you the honest truth Mr. Wright - I feel like you're running away from your argument because the implications of your argument are just so untenable," Justice Kagan said.

"It's so obvious that people who have guns pose a great danger to others -- and you don't give guns to people who have the kind of history of domestic violence that your client has, or to the mentally ill."

Only Justices Samuel Alito and Thomas seemed open to accepting his argument and ruling the federal law unconstitutional.

Many gun safety advocacy groups, like March For Our Lives Action Fund, which submitted a friend-of-the court brief in support of the U.S. position, believe this case should be an easy decision for the court.

"It is absolutely ridiculous that we even have this question," Makennan McBryde, judicial policy associate for March For Our Lives Action Fund, said in an interview.

"Those most vulnerable -- especially young people, especially young women of color -- will have to face the effect of this decision, and I really hope it is in a positive way."

A decision is likely by July 2024.