The Supreme Court on Tuesday will weigh the first test of its new Second Amendment precedent that modern gun laws must be rooted in regulations from the founding era.
The justices will review a ruling from the U.S. Court of Appeals for the 5th Circuit that utilized a new test established in Justice Clarence Thomas’s 6-3 ruling in New York Rifle & Pistol Assn. v. Bruen last year, which determines whether gun control laws are constitutional based on the nation’s “historical tradition of firearm regulation.”
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In March, the 5th Circuit vacated the conviction of Texas drug dealer Zackey Rahimi under a 1994 federal statute that makes it a crime for people subject to civil domestic violence orders to possess guns, finding that it violated the novel Second Amendment test devised under Bruen.
“Rahimi, while hardly a model citizen, is nonetheless among ‘the people’ entitled to the Second Amendment’s guarantees, all other things equal,” 5th Circuit Judge Cory Wilson wrote for the three-panel decision.
The Biden administration swiftly appealed the decision to the Supreme Court, arguing there exists “strong historical evidence supporting the general principle that the government may disarm dangerous individuals.” The high court agreed to consider the case on June 30, just before leaving for summer recess.
The case, United States v. Rahimi, began in 2019 when Rahimi stood accused of assaulting his girlfriend and threatening to shoot her if she told anyone, prompting her restraining order request. The order suspended his handgun license and blocked him from possessing a gun.
Rahimi was allegedly later involved in five shootings in the span of two months. In one of those instances, he is said to have threatened a different woman with a gun, leading to charges of assault with a deadly weapon. He also opened fire in public five times and used an AR-15 to shoot into the home of someone who purchased prescription narcotics from him, according to court records.
The shooting incidents led to a search warrant on his home, which uncovered weapons, leading to his charge in violation of 18 U.S.C. § 922, which criminalizes gun ownership by anyone subject to a domestic violence restraining order.
The ruling from the 5th Circuit, the nation’s appellate court with the most Republican-appointed judges, drew the ire of activists against domestic violence who warned the justices should not endorse the appellate court’s interpretation of Bruen.
“If the Fifth Circuit’s ruling is allowed to stand, survivors and those at risk of domestic violence, including countless children, will be in incredible danger,” said former House general counsel Douglas Letter, who is now a chief legal officer at the pro-gun control group Brady. Those comments echo arguments from Justice Department Solicitor General Elizabeth Prelogar, who is urging the justices to reverse the 5th Circuit and clarify how the history test from Bruen 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,’” 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.’”
Other pro-gun control groups, such as March For Our Lives, are asking the high court to reverse course on the 5th Circuit’s ruling as well.
“We know that mass shootings and domestic violence are intimately connected, with 68% of mass shootings involving a perpetrator with a history of domestic violence,” said Camille Paradis, a 19-year-old survivor of the Sandy Hook Elementary school who spoke at an Oct. 24 press conference.
Conversely, some pro-gun groups argue the 1994 statute lacks historical precedent and defies the Second Amendment. While they don’t condone Rahimi’s character and actions, they argue the federal gun ban for Americans subject to domestic violence restraining orders violates the Second Amendment.
“This statute actually ends up disarming a bunch of law-abiding or otherwise good people that you might not expect when you first look at it,” Aidan Johnston, a lobbyist with Gun Owners of America, told ABC.
Judges issue thousands of domestic violence restraining orders each year, which are also known as protective orders. Such orders are civil and usually are applied to create distance between suspected aggressors and a victim. Since the application of the 1994 statute, such orders have been kept on record in a national background check system to block someone under such an order from legally purchasing a gun.
Historian Angus Kirk McClellan filed an amicus brief in the Rahimi case, arguing that “Domestic violence was a serious social problem at the founding and throughout the nineteenth century” but that it did not result in restrictions on the right to bear arms. Rather, McClellan argued, there were so-called “surety laws” that would punish individuals who may engage in cruel or inhumane acts against their marital partners.
McClellan raised a hypothetical example of a real incident from 1687, in the colony of Pennsylvania, when wife Hannah Overton brought evidence of husband Thomas Tunneclif’s abuse toward her and their children. The court ordered him to give a good behavior surety which could be levied against his property. If he refused to comply, the punishment would result in jail.
“Founding era authorities contain no evidence that the conditions or consequences attached to spousal peace sureties ever included restrictions on the right to arms,” McClellan said. “Because of this material disparity, the history and tradition of founding era peace sureties does not support Section 922(g)(8),” referring to the 1994 statute.
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Oral arguments on Tuesday will be closely watched by gun rights proponents and advocates against domestic violence alike. The question at issue will likely see the justices pitted between their dedication to upholding law and order and defending the right to bear arms.
A decision in the case will likely come by early summer.
