Activists Optimistic Justices Will Uphold Abuser Gun Ban

By Katie Buehler | November 8, 2023, 8:59 PM EST ·

Gun and domestic violence advocates are optimistic the U.S. Supreme Court will uphold a federal statute prohibiting people subject to domestic violence restraining orders from possessing firearms, saying the justices during oral argument seemed to have a consensus about the regulation's importance and that the Fifth Circuit erred in striking it down.

Several of the prohibition's supporters were wary heading into Tuesday's arguments that the justices might see merit in Texas man Zackey Rahimi's arguments that the law violates the Second Amendment. Rahimi's case is the first gun rights case to reach the high court since it established a new historical analog test for such challenges in New York Rifle & Pistol Association Inc. et al. v. Bruen et al.

But Esther Sanchez-Gomez, litigation director for the Giffords Law Center to Prevent Gun Violence, and other advocates told Law360 they emerged from arguments optimistic, encouraged and relieved. Some even predicted an 8-1 or 7-2 victory for the federal government in its defense of the statute, 18 U.S.C., Section 922(g)(8).

"What came through to me over the course of the arguments is the justices recognize how important a public safety issue the case presents," Sanchez-Gomez said. "It became clear many of the justices feel the result the Fifth Circuit reached is not what they intended with Bruen. They know they have to figure out a way to clarify the standard described in Bruen."

During roughly 90 minutes of oral arguments, no justice hinted that they agreed with the reasoning behind a Fifth Circuit panel's March finding that the restriction has no basis in American history, Joan Meier, director of George Washington University's National Family Violence Law Center, pointed out.

And, none of the justices challenged the federal government for historical analogues of domestic violence-related restrictions, other advocates noted.

"The questions from several justices showed they understood the life-and-death consequences at issue in this case," said Eric Tirschwell, executive director and chief litigation counsel for Everytown Law.

Advocates said they were most encouraged by Justice Elena Kagan's quest for better guidance to give lower courts on how to apply the Bruen test, and Justice Neil Gorsuch's attempts to shut down discussions of alleged due process issues related to the issuance of domestic violence restraining orders that aren't at the center of Rahimi's case.

Chief Justice John Roberts' and Justice Amy Coney Barrett's focus on defining "dangerous" groups of people also showed the pair are sympathetic to the government's authority to disarm people who are threats to individuals and public safety, advocates told Law360.

Rahimi, who pled guilty in May 2021 in Texas federal court to a charge of possessing a firearm while under a domestic violence restraining order, contends his charge and conviction violate the Second Amendment and are unconstitutional under the Supreme Court's landmark June 2022 decision in Bruen.

The test established in that case instructs courts faced with Second Amendment challenges to consider whether an analogous law was in place either when the Second Amendment was enacted in 1791, during the Founding Era, or when the Fourteenth Amendment and its due process clause was enacted in 1868, in the Reconstruction Era.

The federal government has defended the domestic violence gun ban by arguing it promotes the constitutional principle of disarming dangerous people and promoting public safety. The government also claims it doesn't have to point to a specific "historical twin" statute to prove its case.

A majority of the Supreme Court justices appeared skeptical on Tuesday of Rahimi's arguments and the Fifth Circuit's finding that the restriction violated the Second Amendment, focusing their questions instead on whether the appellate court misapplied the Bruen test.

The justices' focus on clarifying Bruen's test seemed promising to Kami Chavis, director of William & Mary University's Center for Criminal Justice Policy and Reform.

"So many observers in this space are hoping to get more clarity on the application of Bruen and how communities can draft gun regulations that can pass constitutional muster," she said.

Bruen created chaos among lower appellate courts, advocates said, and introduced more fear into the lives of domestic violence survivors. The National Domestic Violence Hotline saw a huge increase in calls from Texas, Mississippi and Louisiana — states within the Fifth Circuit's jurisdiction — following the court's ruling, said Marium Durrani, vice president of policy for the hotline.

Justice Kagan's question to U.S. Solicitor General Elizabeth B. Prelogar asking for "useful guidance" the high court could give lower courts shows the justices are aware of the chaos Bruen has wreaked on lower courts and the criticism surrounding its historical analog test, advocates said.

Prelogar also did an excellent job of outlining the specific guidance the high court could give, they said, including arguing that lower courts should assess gun restrictions by considering whether they comply with a constitutional principle that was present during the Founding or Reconstruction Era. Additionally, Prelogar asserted that courts shouldn't hold the absence of a historical regulation against the government.

"She took Bruen and kind of cast it as this precedent that allows for a thoughtful, principled approach going forward," said Sasha Drobnick, appellate litigation director for the Network for Victim Recovery of D.C.'s Domestic Violence Legal Empowerment and Appeals Project.

Sanchez-Gomez added that Prelogar handed the justices the tools necessary to better clarify the Bruen test.

"They have the tools that would put together an opinion to address issues coming forward," she said. "It's clear that they are thinking about this case in the broader context."

But other advocates fear a majority of justices won't be able to agree on what clarifications are needed for the Bruen test. Chavis, for example, predicts Justice Kagan could outline the guidance in a concurring opinion, but she doesn't expect those suggestions to be included in the court's main opinion.

Others believe the justices may just limit their opinion to the domestic violence gun restriction and decline to provide broad clarification of how to meet the Bruen test.

"I do not believe that the court is going to be keen [about] the [case's] implications," Chavis said. "They're already shown a disdain for doing so."

For example, while Justice Gorsuch steered arguments away from due process issues, he made it clear he believes those challenges need to be addressed in the future.

"He's clearly carving out the limits he's going to put in the opinion or sign on to," Meier said. "He just seemed clearly to be pinning down his bullet points."

Tirschwell said the court's eventual opinion in Rahimi is the "biggest unknown," but he hopes the justices consider the case's implications.

"Our hope is that not only will the Supreme Court reverse [the Fifth Circuit], and survivors and victims will continue to be protected like they have been, but that the Supreme Court will make clear that some of the other more extreme and dangerous decisions of the lower courts … that that's the improper application of what Bruen is about," he said.

The government is represented by Elizabeth B. Prelogar of the U.S. Department of Justice.

Rahimi is represented by J. Matthew Wright, Jason D. Hawkins, Kevin Joel Page, Rachel Taft and T.W. Brown of the Federal Public Defender's Office for the Northern District of Texas.

The case is U.S. v. Rahimi, case number 22-915, in the U.S. Supreme Court.

--Editing by Kristen Becker.

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