WASHINGTON (CN) — For almost three decades, the federal government and almost every state across the country have blocked domestic abusers from having guns because of the oftentimes deadly consequences of firearms in domestic disputes. Then the Supreme Court intervened.
Justice Clarence Thomas’ majority opinion in New York State Rifle & Pistol Association v. Bruen threw out the means-end scrutiny test that had upheld firearm regulations for decades and said courts should now consider if modern-day gun laws can be traced back to an analogous regulation from the founding era to decide if they violate the Second Amendment.
“If that sounds like a complicated task — one that apparently ignores the realities of both societal changes over the last couple 100 years and that scientific methods have developed to allow us to develop even more effective laws — in many ways it is, and in the year and a half since Bruen was decided, courts have really struggled to apply this and have reached opposite conclusions based on basically the same information,” Esther Sanchez-Gomez, litigation director at Giffords Law Center, said.
On Tuesday, the justices will review a ruling from the past year that used Bruen to throw out regulations on gun ownership for people under protective orders. How the case is perceived by the high court will decide if the expansive reading of Bruen understood by the Fifth Circuit is correct, or if the justices want to rein in that interpretation for a more moderate approach.
Zackey Rahimi was issued a protective order after a fight with his girlfriend in 2019. The pair were in a parking lot when Rahimi threatened to keep the couple’s child away from his girlfriend. When she tried to leave, Rahimi grabbed her wrist, knocking her to the ground and dragging her back to his car.
A bystander witnessed the assault. When Rahimi saw the witness, he pulled out a gun and fired at the bystander. Rahimi’s girlfriend used the distraction to escape, but he would later call her and threaten to shoot her if she told anyone of the assault.
A Texas court placed a protective order against Rahimi for the assault. The order not only prohibited Rahimi from contacting his girlfriend or her family but also suspended his handgun license.
Rahimi violated the protective order, repeatedly attempting to communicate with the girlfriend. He was also involved in five different shootings that led police to obtain a search warrant for his house. During the search, officers discovered a .45-caliber pistol, a .308-caliber rifle, magazines and ammunition. Police also found a copy of the protective order, which prohibited him from possessing all of the firearm paraphernalia.
A federal grand jury indicted Rahimi for violating Congress’ 1994 law prohibiting individuals under domestic violence protective orders from possessing firearms. Rahimi pleaded guilty after the Texas federal court ruled against his motion to dismiss, arguing that the law violated the Second Amendment. The Fifth Circuit affirmed.
Then came Bruen. After the justices handed down their landmark ruling in 2022, the Fifth Circuit withdrew its ruling and reversed. According to the appeals court, since Rahimi was an ordinary, law-abiding citizen — the Fifth Circuit interpreted this phrase to only exclude felons — he could not have his Second Amendment rights denied despite the protective order.
In its attempt to apply Bruen’s new standard, the government cited 17th-century English law disarming dangerous individuals. The Fifth Circuit said this example was not analogous enough and ruled in Rahimi’s favor.
The ruling caught the attention of Second Amendment watchers, who saw Rahimi’s case as a worst-case scenario after Bruen.
“If that is truly what Bruen meant, then there is a serious problem with Bruen,” Janet Carter, senior director of issues and appeals at Everytown Law, said. "Neither text, nor history, nor tradition, let alone common sense dictates that the government is forbidden to disarm people subject to protective orders, and we don't think Bruen does dictate that result.”
The Supreme Court agreed to hear Rahimi’s case to decide if the Fifth Circuit had gone too far. The government urged the justices to reverse and clarify how the history test should be applied.
“In judging whether a modern firearms regulation is consistent with a historical precursor, a court must ask ‘how and why the regulations burden a law-abiding citizen’s right to armed self-defense,’” U.S. Solicitor General Elizabeth Prelogar wrote in the government’s brief. “In judging whether a weapon is dangerous and unusual, a court must consider whether the weapon is ‘typically possessed by law-abiding citizens for lawful purposes.’”
Rahimi argues the justices have an easy case before them because his case falls squarely under Bruen. He says the law unconstitutionally bans possession of firearms in the home, applying to all U.S. citizens. Rahimi also claims that the founding generation would have taken issue with the federal nature of the regulation, arguing they would have preferred a state-by-state rule.
“The Government attacks the outcome below but refuses to engage in Bruen’s process,” J. Matthew Wright, a Texas public defender representing Rahimi, wrote. “The Second Amendment protects a U.S. citizen’s right to keep firearms within the home for self-defense and defense of others. Section 922(g)(8) severely punishes any exercise of that right. Because there is no historical tradition of any similar restriction, the law is unconstitutional on its face.”
What the court says in the context of guns for those under domestic violence restraining orders could apply to other laws facing challenges because of Bruen. These include laws restricting gun possession by drug users, stopping people under indictment from purchasing new guns, prohibiting assault weapons and high-capacity magazines, requiring firearms to have serial numbers, and restricting convicted felons from possessing guns.
Second Amendment scholars warned the justices that if they do not resolve the issues that have been ignited by Bruen, it could create a system where individual judges interpret gun regulations differently, sometimes completely at odds with each other.
“As the experience of the lower courts applying the analysis called for in Bruen illustrates, however, further refinement is needed to ensure that the search for historical analogs will generate consistent, principled results — and will avoid the very sort of ad hoc judicial policy balancing that Bruen’s historical approach was adopted to prevent,” the scholars wrote in an amicus brief.
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