Justices Skeptical Of Keeping Domestic Abusers Armed

By Marco Poggio | November 7, 2023, 4:56 PM EST ·

The U.S. Supreme Court on Tuesday appeared skeptical of a lower-court decision that a federal law prohibiting people who are subject to domestic violence restraining orders from owning firearms violates the Second Amendment.

A person seen from behind holding a sign that says Disarm Domestic Violence, standing facing the Supreme Court building.

Gun safety and domestic violence prevention organizations gather outside the Supreme Court before oral arguments in U.S. v. Rahimi on Tuesday. (AP Photo/Stephanie Scarbrough)

Questions and comments by a majority of the justices seemed to suggest principles consistent with the court's landmark ruling in New York State Rifle & Pistol Association v. Bruen last year, which expanded the right to carry guns outside one's home, would lead them to find the law at issue — Section 922(g)(8), Title 18 of the U.S. Code — constitutional.

In February, the U.S. Court of Appeals for the Fifth Circuit struck down the law as unconstitutional on its face after Zackey Rahimi, a Texas man charged under the law after police found firearms and ammunition in his home while he was bound by a restraining order for knocking his girlfriend to the ground during a fight, had argued that the provision violates his Second Amendment rights.

On Tuesday, none of the justices clearly indicated that they would vote to uphold the Fifth Circuit's decision. Even two of the justices who in the past have supported gun rights — Samuel Alito and Clarence Thomas, who wrote the Bruen decision — showed skepticism.

The arguments focused largely on the concept of danger, and what kind of process must be in place before a person can be prohibited from possessing a firearm when a threat to a domestic partner.

Solicitor General Elizabeth B. Prelogar, said that principle was grounded in the Second Amendment's history and tradition, and argued that the government has the power to disarm people who, like Rahimi, are not "law-abiding and responsible" — a definition she said included people who committed felonies or whose access to guns poses a danger to others.

"Guns and domestic abuse are a deadly combination. As this Court has said, all too often, the only difference between a battered woman and a dead woman is the presence of a gun. Armed abusers also pose grave danger to police officers responding to domestic violence calls and to the public at large, as Zackey Rahimi's own conduct shows," Prelogar told the court.

Calling the Fifth Circuit's decision "profoundly mistaken," Prelogar said the government is justified in disarming people who commit serious crimes or who show that they are "not responsible."

Chief Justice John Roberts Jr. pushed back on that concept as too vague.

"It seems to me that the problem with responsibility is that it's extremely broad, and what seems … irresponsible to some people might seem … like that's not a big deal to others," he said. "So, what is the model?"

Prelogar said "not responsible" refers to people who are found to be a threat to others, even without intention, as in the case of some mentally ill people.

The justices appeared concerned about possible challenges to other provisions of the federal gun possessions statute used to disarm people convicted of felonies, or those who have been adjudicated mentally ill.

Rahimi's lawyer, J. Matthew Wright of the Office of the Federal Public Defender, was pressed aggressively to explain how his argument would apply to other contexts.

In some instances, Wright appeared to backtrack.

When asked by Justice Elena Kagan whether disarming mentally ill people was constitutional, Wright said there was a historical basis for such restriction in the post-Civil War history, a timeframe much later than the one allowed under a strict reading of Bruen.

"I'll tell you the honest truth, Mr. Wright," Justice Kagan said. "I feel like you're running away from your argument, you know, because the implications of your argument are just so untenable that you have to say no, that's not really my argument."

Chief Justice Roberts also appeared to look for weak spots in Wright's argument.

"Are you suggesting, if there's a sufficient showing of dangerousness, that can be a basis for disarming even with respect to possession in the home?" he asked. "To the extent that's pertinent, you don't have any doubt that your client's a dangerous person, do you?"

When Wright asked what being a "dangerous person" meant, Roberts' dry reply sparked laughter.

"Well, it means someone who's shooting, you know, at people. That's a good start," he said

The Rahimi case has been a center of attention since the high court decided it would hear it in June. Dozens of amicus briefs have been filed in the case, the majority of them in support of the U.S. government. They include ones filed by legal scholars, jurisdictions such as New York City, prosecutors, and several gun control advocacy groups.

The stakes are high. According to U.S. government data, an average of 70 women in America are shot and killed by an intimate partner every month. The presence of a gun in a domestic violence situation makes it five times as likely that a woman will be killed, according to the data.

Many of the justices' questions on Tuesday centered on how lower courts should perform the type of legal analysis prescribed by the Bruen decision, which requires the government to show that its restrictions on gun possession have roots in the historical record dating to the time that the Second Amendment was ratified in 1791.

Prelogar made clear that there was confusion about how to properly apply the historical record, and received no pushback on that point from any of the justices.

To the contrary, at least two justices — Justices Kentanji Brown Jackson and Kagan — doubted how to properly apply the test. Justice Jackson in particular seemed to question whether the methodology in Bruen is a sound approach for deciding Second Amendment cases.

"I wonder whether we need to be taking into account how historically domestic violence in particular was treated so that if we had evidence that … men who engaged in domestic violence historically were actually not perceived as dangerous from the standpoint of disarmament — what would we do with that in this situation?" she asked.

Prelogar replied that the historical attitudes toward dangerousness should not be determining modern-day policies. For example, she said, unlike today, founding-era regulations prohibited handguns because they were considered dangerous and unusual.

In response to Justice Kagan's questions on how to apply the Bruen test, Prelogar said lower courts scrutinizing gun restrictions today should consider a broader swath of historical evidence, not just regulations, when determining whether the current policies are permissible.

Prelogar also said courts should not look for exact replicas of the modern laws in the historical record, but rather focus on the principles that justified the founding-era regulations more in general. In the context of Rahimi's case, Prelogar said taking into account past regulations that restricted gun possession by people considered dangerous was enough to justify the current laws. But Prelogar also emphasized that courts should not construe the lack of certain gun restrictions in the past as historical evidence that modern gun laws are unconstitutional.

Prelogar said the Bruen decision has been interpreted narrowly by lower courts in ways that could have significant impact on the government's ability to curb gun violence.

"Unfortunately, it's a profound misreading that many lower courts have been adopting. And I think that it's important for the Court to understand the destabilizing consequences of that reading in the lower courts," she told the justices.

In its briefing to the high court preceding the oral arguments, the government showed its concerns that a ruling in Rahimi's favor could open the door for other types of people considered to be dangerous to argue they should be allowed to own guns, including "armed drug users."

A case involving a person convicted of a felony challenging as unconstitutional the federal statute barring convicted felons from having guns is brewing, with a petition for certiorari now pending before the Supreme Court. The case, Garland v. Range, originated in the Third Circuit, which found that the law — Section 922(g)(1) — violates the Second Amendment.

In a study of federal gun cases following the Bruen decision published last week, a team of legal experts found that lower-court judges are reaching different outcomes on the same policies and seem to be splitting along ideological lines.

"To the extent the Supreme Court thought the guidance that it provided in Bruen would constrain judges, that does not appear to be happening," Eric Ruben, one of the study's authors, told Law360. "What remains to be seen is whether a majority of the justices are willing to use this case to provide broader guidance to the lower courts who are really struggling to do Bruen's historical analogical test."

The U.S. government is represented by Solicitor General Elizabeth B. Prelogar.

Rahimi is represented by James Matthew Wright of the Office of the Federal Public Defender.

The case is United States v. Zackey Rahimi, case number 22-915, in the Supreme Court of the United States.

--Editing by Peter Rozovsky.

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