Insights from Supreme Court Oral Arguments on the Second Amendment and Domestic Violence
The Supreme Court appears inclined to support a federal law prohibiting individuals under domestic violence restraining orders from possessing firearms This decision may not fully resolve the confusion in lower courts regarding gun regulations Justice Amy Coney Barrett is closely watched, while Justices Alito and Thomas express concerns about due process Ketanji Brown Jackson opposes the Bruen decision
After oral arguments, the Supreme Court appeared ready on Tuesday to support a federal law which prohibits individuals under certain domestic violence restraining orders from owning firearms. This case, following a recent mass shooting in Maine where 18 people lost their lives, marks the first significant Second Amendment case to be presented to the justices since their groundbreaking decision last year that broadened gun rights across the country and caused significant uncertainty in lower courts as numerous firearms laws are reassessed.
The justices repeatedly discussed the New York State Rifle & Pistol Association, Inc. v. Bruen case for over an hour. A majority of the justices suggested that the challenged law aligns well with the longstanding practice in the nation of restricting Second Amendment rights for individuals, such as the plaintiff in the current case, who have been deemed a threat to society.
The decision likely wont settle the confusion in lower courts on guns
As she stepped up to the podium, Solicitor General Elizabeth Prelogar argued that "guns and domestic violence are a deadly combination."
"The mere existence of a firearm often distinguishes a battered woman from a deceased woman," she stated.
"Over the course of our country's past, lawmakers have consistently disarmed individuals involved in grave criminal offenses or those whose possession of firearms poses a significant threat," she later conveyed.
Some of the justices seemed inclined to agree on that point.
Samuel Alito and Elizabeth Prelogar
Getty Images/Sipa USA
The ongoing clash between the conservative justice and the liberal Biden attorney at the Supreme Court continues as Chief Justice John Roberts questioned the attorney representing Zackey Rahim, the respondent in the case. Rahim, who had subjected the mother of his child to a violent incident in a parking lot in 2019, was subsequently given a restraining order. In January 2021, after his credit card was declined, he went on a shooting spree that eventually led to gunshots being fired at a Whataburger restaurant. Chief Justice Roberts inquired, "Do you have any doubt about the dangerous nature of your client?"
The court's eventual opinion, expected to be released in a few months, is unlikely to provide a clear resolution to the ongoing confusion among judges in lower courts regarding the appropriate framework for evaluating various gun laws. Instead, the opinion may focus extensively on the specific details of the current case, but it is expected to emphasize that individuals deemed dangerous are not protected by the Second Amendment.
What compromises danger?
Prelogar insisted that Congress may disarm those "who are not law abiding, responsible citizens."
However, Justice Clarence Thomas, who wrote last year's Bruen decision and has recently been initiating the first question in every oral argument, disagreed with the government's suggested test in this case. He indicated that he believed it was overly inclusive by questioning Prelogar on the specific meaning of "law abiding and responsible" in her proposition.
Roberts also joined the discussion. Does that include someone who is driving 30 miles per hour in a 25 miles per hour zone? Would it make a difference if the person committed a misdemeanor rather than a felony? Roberts, considering future cases, seemed to oppose Prelogars test as "extremely broad."
Roberts was not the only one with this opinion. The ACLU, a group always concerned about excessive imprisonment, filed a friend-of-the-court brief in the case stating that it did not support the government's test. The ACLU suggested that the court could resolve the case on a much narrower legal basis: whether it has been determined that the individual poses a specific threat to others. The ACLUs brief could catch the attention of conservatives who believe that the law in question is acceptable for this particular case but should not be extended to other situations.
In her closing, Prelogar again emphasized the stakes.
"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," she said.
All eyes on Justice Amy Coney Barrett
Long before she reached the high court, Justice Amy Coney Barrett issued an opinion that attracted the attention of gun rights supporters.
In 2019, while serving on the 7th US Circuit Court of Appeals, Barrett expressed her dissenting opinion when her fellow judges dismissed a Second Amendment challenge brought by an individual with a felony conviction for mail fraud. This individual was legally prohibited from possessing a firearm under both federal and Wisconsin law. Barrett firmly stated that history, along with common sense, supports the authority of legislatures to restrict access to guns for individuals deemed dangerous.
However, she stressed that this authority is limited to individuals deemed to be a threat. She argued that the inclusion of all felons, whether violent or nonviolent, in the legislation rendered it unconstitutional in relation to the plaintiff in question. This implies her intent to establish a criterion centered around the concept of "dangerousness".
Tuesday, Barrett underscored the appalling nature of Rahimi's actions as described in the protective order. Emphasizing the dangers of domestic violence, Barrett sought clarification regarding potential cases that may not blatantly violate constitutional standards.
Justices Alito and Thomas express concerns about due process
Acknowledging Rahimi as a good test case to revisit the court's opinion from last year, even the most ardent supporter of gun rights, including his lawyers, the National Rifle Association, and Justices Thomas and Samuel Alito, emphasized the importance of due process rights.
J. Matthew Wright, a federal public defender, emphasized multiple times that the civil proceeding resulting in the protective order was biased. He also pointed out that Rahimi had not been given legal representation during that time.
During the court session on Tuesday, Alito raised procedural queries regarding the options available to someone affected by a protective order if they believed it had been unjustly issued. Thomas mentioned the limited amount of information in the case and questioned why the domestic violence allegations were made in a civil, rather than criminal, proceeding.
However, Neil Gorsuch, the conservative colleague, pointed out that Rahimi did not assert a due process claim, implying that it would present a separate challenge.
A friend of the court brief submitted by the NRA emphasized the importance of due process in the case. They highlighted that Rahimi was not charged with the initial aggravated assault and, instead, the prosecutors opted for a less complicated approach by seeking a protective order.
Ketanji Brown Jackson is no fan of the Bruen decision
In contrast to the government and her liberal colleagues, Justice Ketanji Brown Jackson emphatically expressed her belief that the opinion from last year, which relied on "historical tradition," was both perplexing and incorrectly resolved. (She had not yet taken her seat on the bench at the time of that case.)
She mentioned that she is simply attempting to comprehend how the Bruen test operates in a scenario where there is some indication that domestic violence was not viewed as regulated as it is in the present day.
According to Jackson, the founders were predominantly White and Protestant men.
Justice Elena Kagan, who dissented in Bruen, raised the question to Prelogar about potential actions the justices could take to provide greater clarity on the interpretation and requirements of the Bruen case. Kagan acknowledged the existing division and confusion within the lower courts regarding the implications of Bruen.
