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Wednesday, December 6, 2023
Courthouse News Service
Wednesday, December 6, 2023 | Back issues
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Challenge to domestic abuser disarmament faces Supreme Court headwinds 

The high court was skeptical that history prevented disarming dangerous individuals such as those who commit domestic violence.

WASHINGTON (CN) — An attempt to throw out a federal law barring domestic abusers from possessing firearms floundered at the Supreme Court on Tuesday as the government urged the justices to provide a path to uphold gun laws under its new history test.  

“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,” Justice Elena Kagan said. 

U.S. Solicitor General Elizabeth Prelogar urged the Supreme Court to reject an appeals court ruling that invalidated a federal statute prohibiting individuals under protective orders from owning guns using the court’s new history test set out in NYSRPA v. Bruen. She said reading this standard to require a precise historical analog was dangerous.  

“I think that is a clearly incorrect reading of Bruen,” U.S. Solicitor General Elizabeth Prelogar said. “Unfortunately, it’s a profound misreading that many lower courts have been adopting and I think it’s important for the court to understand the destabilizing consequences of that reading in the lower courts.” 

Justice Clarence Thomas’ majority opinion in Bruen upended gun laws nationwide when it changed the standard by which regulations are evaluated. In Bruen, the conservative supermajority said firearm laws must comply with the country’s history and text to avoid violating the Second Amendment. 

A Texas man is using Bruen to claim it is unconstitutional to disarm domestic abusers. Zackey Rahimi abused and repeatedly threatened his girlfriend, resulting in a judge placing a protective order against him.  

Rahimi repeatedly violated the order, continuing to threaten and contact his girlfriend following the order. He also committed five separate, unrelated shootings that led police to search his home, where they found multiple firearms. After he was indicted by a federal grand jury for violating the 1994 law that barred his gun possession, Rahimi pleaded guilty; however, the Supreme Court’s ruling in Bruen led him to challenge his conviction.  

The Fifth Circuit, which initially upheld Rahimi’s conviction prior to Bruen, overturned his conviction, finding the law unconstitutional.  

Rahimi argues the same before the Supreme Court, claiming the law’s lack of founding era twin violates the Second Amendment.  

“When Congress enacted Section 4 922(g)(8) in 1994, it acted without the benefit of Heller, McDonald, and Bruen, so we shouldn't be surprised that they missed the mark,” Matthew Wright, a Texas public defender representing Rahimi, said. “They made a one-sided proceeding that is in short, a complete proxy for a total denial of a fundamental and individual constitutional right.”  

Most of the justices appeared to disagree with this interpretation, seeing a historical window where dangerous individuals had been disarmed.  

“Are you suggesting that if there’s a sufficient showing of dangerousness that could be a basis of disarming even with respect to possession in the home,” Chief Justice John Roberts asked.  

Roberts suggested there was little doubt Rahimi was dangerous and that anyone who fires a gun at someone could be considered dangerous. 

Justice Ketanji Brown Jackson took direct aim at the court’s ruling in Bruen, which was issued only a year before she joined the bench.  

“I guess I'm trying to understand whether we can really be analyzing this consistent with the Bruen test at the level of generality of dangerousness,” the Obama appointee said.  

Historically, Jackson noted, domestic violence was viewed very differently than it is today.   

“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 then dangerous from the standpoint of disarmament, what would we do with that in this situation?” Jackson asked. 

Prelogar warned the justices that their ruling would extend beyond just disarming domestic abusers, citing lower court rulings invalidating a number of laws using this interpretation of Bruen. A law prohibiting felons from possessing firearms was shot down. As was regulation on gun ownership for armed career criminals. Regulations requiring guns to have serial numbers have also fallen victim to the lower court’s broad interpretation of Bruen.  

“I think that those are clearly untenable results,” Prelogar said. “They are profoundly destabilizing, and Bruen doesn't require them.”  

Gun safety advocates expressed optimism following the court's arguments. The groups said the justices must uphold bans on domestic abusers' gun possession was critical to protecting victims.

"Removing firearms from people under qualifying domestic violence restraining orders is common-sense, life-saving, and consistent with the Constitution, and that is what the Solicitor General argued today,” Douglas Letter, chief legal officer of Brady, said in a statement. 

“The Supreme Court must now decide if it stands with victims of domestic abuse or a warped and distorted view of the Second Amendment constructed by the gun industry, which will only lead to more violence, particularly against women and children. The law challenged in this case is integral to protecting some of the most vulnerable Americans.” 

Follow @KelseyReichmann
Categories / Appeals, Second Amendment

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