Supreme Court Justices Weigh Constitutionality Of Disarming Domestic Abusers

by Kay Bontempo for The Crime Report

The U.S. Supreme Court appears poised to uphold a federal law which bans domestic abusers from owning guns In one of the most high-profile cases of this year.

Last month on November 7, Supreme Court justices heard oral arguments in United States v. Rahimi.

The Biden administration, represented by Solicitor General Elizabeth Prelogar, is petitioning to appeal a decision by the conservative Fifth Circuit court, which found that the federal law’s restrictions on gun ownership violated the Second Amendment.

The respondent, Zachey Rahimi, was represented by federal public defender Matthew Wright.

At the core of Rahimi lie a few fundamental questions, including: Should the US be able to prohibit people who have been proven dangerous from owning guns? Further, what should qualify someone as “dangerous” in the eyes of the law?

Many Americans would classify Texas resident Zackey Rahimi, the man at the center of the case, as a dangerous person. In fact, Chief Justice Roberts, addressing Rahimi’s lawyer, asked point-blank during the proceedings, “You don’t have any doubt that your client’s a dangerous person, do you?”

Rahimi was involved in five shootings between December 2020 and January 2021. One involved a pistol shot in the air at a restaurant after his friend’s credit card was declined. During another incident, after colliding with another vehicle on the road, Rahimi exited his car and shot at the other driver repeatedly before fleeing.

Rahimi was also under a civil protective order for alleged assault against his ex-girlfriend. Current federal law 18 U.S.C. §922 (g) (8) prohibits people under domestic violence restraining orders from owning firearms.

Rahimi ran afoul of this law and was consequently convicted of possessing a gun while subject to a domestic violence restraining order.

The 2022 SCOTUS case New York State Rifle & Pistol Association, Inc. v. Bruen is directly relevant to Rahimi, and was mentioned in the first few minutes of oral arguments.

In Bruen, the Court ruled in a 6-3 decision that New York State’s Sullivan Act, passed in 1911—which required anyone applying for a pistol concealed carry license to show “proper cause”—was unconstitutional. The outcome was that, while states may require seekers of concealed carry permits to meet a list of objective criteria (e.g. background checks), they may not choose whether or not to issue permits based on “arbitrary” evaluations of need.

The “Bruen test” created by this decision showed a shift on the court towards originalism, requiring laws regulating firearms to be evaluated based on their relationship to the “history and tradition” of this nation’s firearm laws.

When assessing Rahimi through the lens of Bruen, it is easy to imagine that laws like 18 USC 922 prohibition on domestic abusers owning firearms could be held unconstitutional if forced to pass a test when compared to the laws of the early American republic.

However, Eric Tirschwell, Executive Director of Everytown Law, argues that the federal law in question is entirely consistent with both the Second Amendment and our nation’s history of firearm regulation and therefore passes the Bruen test.

“For centuries, there have been laws aimed at disarming dangerous and irresponsible people, and that history and tradition fully support disarming domestic abusers under the Bruen framework,” Tirschwell said. “The Fifth Circuit’s decision in Rahimi is not a correct application of the Bruen decision’s new history-focused Second Amendment test but instead, it is an extreme interpretation and dangerous distortion of Bruen.”

During Prelogar’s oral argument, she contended that the government should be able to prohibit possession of firearms by individuals who are not “law-abiding,” which the arguments defined as being convicted of a felony, and also by those who are “dangerous” or “not responsible.”

When it comes to the precedent set in Bruen, General Prelogar argued that restriction of firearms from dangerous persons does fit into the history and tradition of this nation’s laws.

She stated that “the Fifth Circuit profoundly erred in reading this Court’s decision in Bruen to prohibit that widespread common-sense response to the deadly threat of armed domestic violence.” According to Prelogar, a correct reading of Bruen still allows for Congress to disarm those who are not “law-abiding, responsible citizens.”

Prelogar also cited statistics about the relationship between gun ownership and domestic abusers, such as the fact that a woman who lives in a house with a domestic abuser is five times more likely to be murdered if he has access to a gun.

The justices discussed at length the definitions of “dangerous,” “law-abiding” and “responsible” in the context of potential laws disarming gun owners. Chief Justice Roberts questioned Prelogar as to whether someone going over the speed limit could be classified as not law-abiding.

Her response was that misdemeanors of that category would not qualify, but that “history and tradition there support the conclusion that you can disarm those who have committed serious crimes.”

Prelogar conceded that Zackey Rahimi did not have “the kind of criminal record that would justify disarmament on [the basis of being non-law-abiding],” and stated that her arguments would therefore focus on those who are “not responsible.” Responsibility, of course, is a complex concept.

The conservative justices, who currently hold a majority, at times indicated during arguments that they felt “responsible” to be too broad a term.

Chief Justice Roberts pointed out that someone who fails to take out their recycling or shouts at a sporting event might be considered irresponsible, pointing out significant room for disagreement over what type of behavior is sufficiently irresponsible to justify disarmament.

Overall, however, by the conclusion of oral arguments the justices seemed likely to roll back the Fifth Circuit decision.

If they do, it will be viewed as a win by defenders of potential victims of domestic violence, and a loss by gun-rights advocates and supporters of the Fifth Circuit ruling.

“We don’t expect the Supreme Court to affirm the Fifth Circuit’s decision,” Tirschwell said. “But if the Supreme Court did affirm the Fifth Circuit’s decision and rule in favor of domestic abusers, it would gut a fundamental public safety law, endangering the lives of domestic violence survivors across the country by allowing abusers to purchase weapons, even in many cases after they’ve been shown to have a history of violent behavior.”

Tirshwell pointed to research showing that average of 70 women are shot and killed by an intimate partner each year and over 4.5 million women have reporter being threatened with a gun by their partner.

“The impact this decision could have across the country is deadly,” Tirschwell said.

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This story by Kay Bontempo first appeared on The Crime Report and is reprinted with their kind permission.

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WLA’s Post script:

We found it interesting to note that California Governor Gavin Newsom has filed an amicus brief on the case, which you can find here.

The brief, which opposes plaintiff Zachey Rahimi, and supports the Biden administration, opens as follows:

“Gavin Newsom is the Governor of California. As the executive of the nation’s largest State, the Governor has an obligation to ensure the safety of California’s residents from the horrors of gun violence— including gun violence by intimate partners and family members. In pursuing that goal, the Governor has consistently advocated for commonsense gun regulations that save lives without infringing on individuals’ constitutional rights. Those regulations include requirements for background checks and mental-health reporting, prohibitions on marketing firearms-related products to minors, restrictions on so-called “ghost guns” designed to stymie law-enforcement investigations of gun crimes, and limitations on the assault weapons responsible for mass-casualty attacks on the public.

“The Governor has demonstrated a particular commitment to protecting survivors of domestic violence by signing legislation and launching a campaign to bolster the efficacy of gun-violence restraining orders— “red flag laws”—that allow law-enforcement officers, family, coworkers, or friends to petition a court to temporarily remove weapons from individuals the court finds are dangerous to themselves or others.”

It goes on from here.  But you get the picture.

And while we’re on the topic, the ACLU has also filed an interesting amicus brief, the summary of which you can find here.