The Supreme Court on Tuesday sounded wary of extending the 2nd Amendment to keep guns in the hands of potentially dangerous people who are put under a domestic violence restraining order.
Both conservative and liberal justices signaled that an appeals court in New Orleans had gone too far by striking down the federal law that takes away firearms from persons who were judged to pose a “credible threat” to a domestic partner or their child.
“Someone who poses a risk of domestic violence is dangerous,” said Justice Amy Coney Barrett. And that should be enough to resolve the case and uphold the law, she added. “Why can’t we just say that?” she asked U.S. Solicitor Gen. Elizabeth Prelogar, who readily agreed.
“Yes,” replied Prelogar, representing the Biden administration, “we would be happy with a decision that says legislatures … throughout American history have been able to disarm people who are dangerous. … This is not a close case.”
The exchange summed up a one-sided argument Tuesday. It may have defused fears among gun-control advocates that the justices were determined to sweep aside any restrictions that deprived Americans of firearms.
But the argument did not reveal much about how the court will explain its latest understanding of the 2nd Amendment.
Last year the court’s six conservatives signed on to an opinion by Justice Clarence Thomas that cast doubt on many of the nation’s gun laws adopted since the 1960s. He said the government may not deny an individual’s right to bear arms unless it can “affirmatively prove” the restriction is “consistent with this nation’s historical tradition.”
Few gun laws can meet that test because there were few legal restrictions on guns in early American history.
But Tuesday’s argument revealed how the court could backtrack slightly without setting aside its prior ruling.
Prelogar argued that a “durable principle” from the nation’s earliest days was that government could take away firearms from dangerous people. This rationale could justify upholding the domestic violence law, even though there were no similar laws during the era when the 2nd Amendment was adopted.
Justices Thomas and Samuel A. Alito Jr. did not sound fully reconciled to upholding the 1994 domestic violence law. They noted that defendants in these cases temporarily usually lose their rights to have guns through a civil proceeding, not through a criminal conviction. They picked up a theme from judges in Texas who said these restraining orders may arise from “he said, she said” domestic disputes.
But Justice Neil M. Gorsuch intervened to point out that issue had not been raised in this case.
“This is a facial challenge” to the law, he said, which was declared unconstitutional. If a person believed they had been treated unfairly, they should bring a suit based on due process of law, Gorsuch said.
The oral argument Tuesday in the case of U.S. vs. Rahimi was closely watched for clues as to whether the court’s conservatives remain united behind Thomas’ approach to the 2nd Amendment.
Relying on Thomas’ opinion, the 5th Circuit Court of Appeals in New Orleans had ruled for Zackey Rahimi, a Texas man who had grabbed an ex-girlfriend and tried to force her into his car. She escaped and sought protection from the courts after he threatened to shoot her. He was later involved in five shooting incidents after a Texas state judge had put him under a restraining order that required him to give up his guns.
When police went to arrest him, they found two guns in his home, and he was charged with violating the court order.
But the 5th Circuit overturned his conviction and struck down the domestic law as unconstitutional. “While hardly a model citizen, [Rahimi] is nonetheless among the people entitled to the 2nd Amendment’s guarantees,” wrote 5th Circuit Judge Cory T. Wilson.
In her appeal, Prelogar said the need for the law was obvious. “Firearms and domestic strife are a potentially deadly combination,” she wrote, quoting a 2009 opinion by Justice Ruth Bader Ginsburg. Studies have shown the “presence of a gun in a household with a domestic abuser increases the risk of homicide five-fold,” Prelogar wrote.
States enforce these restraining orders, she said, and at least 48 states authorize taking away guns from people who are judged to pose a danger to a domestic partner. However, if the high court ruled the federal law violates the 2nd Amendment, its decision would likely void the state laws as well.
Arguing for Rahimi was J. Matthew Wright, a federal public defender from Amarillo, Texas. In his legal brief, he said Thomas’ opinion “makes this an easy case. … The founders never intended to grant Congress the power to say who could keep arms.”
He faced deep skepticism from the justices.
“You don’t have any doubt that your client’s a dangerous person, do you?” asked Chief Justice John G. Roberts Jr.
“Your Honor, I would want to know what ‘dangerous person’ means at the moment,” he replied.
“Well, it means someone who’s shooting, you know, at people. That’s a good start,” Roberts said to laughter in the courtroom.
At stake in the outcome of the case are some California gun laws.
In 1999, California was among the first states to forbid not just the purchase of a new gun, but also the possession of any firearms by a person under a temporary restraining order, according to the bipartisan California Legislative Women’s Caucus.
In response to the 2014 mass shooting in Isla Vista that left six dead, California was “the first in the United States to allow immediate family members of a person threatening violence to petition for the [restraining] order,” the group added in a friend-of-the court brief.
It objected to the court’s focus on “originalism” and early American history to decide the fate of the nation’s modern gun laws.
“The fact that women were not able to legislate, let alone vote, when this country was founded must not shackle current women legislators from enacting reasonable, limited and effective laws to address the scourges of domestic violence and mass shootings,” the group said.