WASHINGTON (CN) — One day short of the anniversary of its landmark ruling on the Second Amendment, the Supreme Court will gather in its private conference Thursday to decide if it will tee up the next battle over gun regulations.
Earlier this year, a unanimous panel on the Fifth Circuit struck down a federal gun regulation preventing domestic abusers from possessing firearms because the founding generation had no similar prohibition. The ruling represents the new standard the conservative supermajority on the high court set last year, requiring current gun laws to match those of the founding generation.
An inevitable clash between modern problems and antiquated solutions has played out in the lower courts over the last 12 months. Tossing the ball back at the high court, now the Biden administration is urging the Supreme Court to provide clarity.
“This Court should grant review so that it can correct the Fifth Circuit’s misinterpretation of Bruen,” U.S. Solicitor General Elizabeth Prelogar wrote in the government’s petition, referring to a ruling last year that said New York unconstitutionally restricted who gets to carry a concealed weapon in public.
Zackey Rahimi — whom the government describes as a drug dealer — brought the challenge against charges he received after possessing a .45 caliber pistol and .308 caliber rifle while having a protective order against him.
According to the government, Rahimi and his girlfriend — identified as C.M. in court documents — got into an argument in an Arlington, Texas, parking lot in December of 2019. During the alleged altercation, Rahimi grabbed C.M.’s wrist to prevent her from leaving. When she fell to the ground, Rahimi dragged her back to his car and pushed her inside, hitting her head on the dashboard. It was at that time, according to the government, that Rahimi noticed an onlooker to the altercation and fired his gun toward the witness. C.M. used the opportunity to escape the car and run away. Rahimi allegedly threatened to shoot her if she disclosed the assault.
C.M. pursued a restraining order. In February 2020, a Texas state court granted her request. Rahimi was not only ordered to not threaten, harass, or approach C.M. or her family, but the restraining order also warned him that he could be charged with a felony if he possessed a firearm while under the court’s order.
The government alleges Rahimi violated the restraining order, contacting C.M. through social media in August 2020. State police then arrested him approaching her house in the middle of the night. In November of the same year, Rahimi was charged with aggravated assault with a deadly weapon for threatening another woman.
Police obtained a search warrant for Rahimi’s home in connection to five shootings spanning from December 2020 to January 2021. Officers found two firearms in his home, along with rifle magazines, ammunition, and about $20,000 in cash.
A federal grand jury indicted Rahimi for possessing a firearm while under a restraining order. Rahimi pleaded guilty and was sentenced to over six years in prison.
At first glance, the Fifth Circuit affirmed. The New Orleans-based appeals court withdrew its ruling, however, after the Supreme Court handed down New York State Rifle & Pistol Association Inc. v. Bruen. The landmark ruling upended the framework for deciding Second Amendment cases in favor of historical analysis. Under Bruen, gun regulations must be analogous to those of the founding era to not impede the Second Amendment.
The government and several amici claim the lower courts have interpreted the ruling too strictly.
“In Bruen, the Court emphasized that its historical test did not create a ‘regulatory straightjacket’ and that the government retains substantial power to regulate firearms to protect public safety,” Prelogar wrote.
Arguing the government has a long history of disarming dangerous individuals, Prelogar said the Fifth Circuit’s interpretation of Bruen uses minor and immaterial distinctions to disqualify prohibitions on weapons possession for abusers. She cites a 17th-century statute from England that allowed the government to seize arms from people who were judged to be dangerous to the peace of the kingdom. Early colonial laws disarmed entire groups deemed to be dangerous or untrustworthy. Post-Civil War, a federal Reconstruction order in South Carolina prevented disturbers of the peace to have their arms seized.
All of the government’s analogous examples were discarded by the Fifth Circuit. The government claims that that approach would leave few modern statutes intact.
“The Fifth Circuit treated even minor and immaterial distinctions between historical laws and their modern counterparts as a sufficient reason to find the modern laws unconstitutional,” Prelogar wrote. “If that approach were applied across the board, few modern statutes would survive judicial review; most modern gun regulations, after all, differ from their historical forbears in at least some ways.”
Rahimi, however, argues the justices shouldn’t get sucked into reviewing the interpretation of a ruling that is barely a year old.
“This Court only ‘rarely’ grants certiorari to refine or clarify an important constitutional issue within the first year,” J. Matthew Wright, a public defender representing Rahimi, wrote in his brief. “Lower courts are just beginning to grapple with Bruen, and the decision’s recency is reason enough to deny certiorari.”
Rahimi suggests that this case is only seen as urgent because the gun owner prevailed.
“A successful constitutional challenge to a seldom prosecuted gun crime is not an emergency,” Wright wrote. “If the lower courts diverge in their interpretation of Bruen, the Court may have to intervene. But it need not do so every time a gun owner prevails in a constitutional challenge.”
Amici have already jumped into the fray. California Governor Gavin Newsom said the court reaffirmed the notion that the Second Amendment is “not a suicide pact” in Bruen.
“While it protects ‘the right of law-abiding, responsible citizens to use arms’ for self-defense,’ it does not disable states from enacting a variety of critical gun regulations that have existed for decades — including restrictions on gun possession by dangerous individuals,” James Sigel, an attorney with Morrison & Foerster representing Newsom, wrote.
Gun violence and domestic violence prevention groups argue the case presents a compelling example of why law enforcement needs the power to prevent abusers from possessing firearms.
“The link between firearms and lethal domestic violence is well documented,” Michael Dreeben, an attorney with O’Melveny & Myers representing the groups, wrote. “In 2019, nearly two-thirds of domestic homicides in the United States were committed with a gun. Between 1980 and 2014, more than half of women killed by their intimate partners were killed with guns. And direct access to guns increases the likelihood of intimate-partner homicide of women by 11 times.”
The Biden administration’s petition is set to be reviewed during Thursday’s private conference. The court could release a decision on the petition as soon as Monday.
Follow @KelseyReichmann
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