The Supreme Court’s Major Gun Decision Was A Warning To Extremist Judges
The Supreme Court’s decision Friday to uphold a 30-year-old law barring domestic abusers from possessing guns came as no surprise. Conservative and liberal justices alike seemed pointedly skeptical and at times openly derisive of Zackey Rahimi’s defense at oral arguments last year.
It’s easy to see why. Texas prosecutors accuse Rahimi of shooting guns in public at least six times while under a protective order he received for allegedly assaulting and shooting at his former partner, the mother of his child. He allegedly fired at another woman in a parking lot, at two different people in separate road rage incidents, and into someone’s home over comments made on social media. The government could hardly ask for a better symbol for the need to restrict access to firearms in the name of public safety.
But the Rahimi decision has implications that go beyond a single defendant or a single law.
The ruling marked the first time the Supreme Court has offered its take on gun rights since Justice Clarence Thomas penned a sweeping reinterpretation of the Second Amendment two years ago, in New York State Rifle and Pistol Association Inc. v. Bruen.
That case established a standard directing courts to disregard the need for public safety when assessing gun regulations. Going forward, the constitutionality of firearm restrictions would depend only on whether similar laws existed at some point between 1791, when the Bill of Rights was ratified, and the end of the Civil War.
Since Bruen, some judges have cited the new Second Amendment standard to overturn an age limit for handgun purchases, a ban on ghost guns, and a law barring people under felony indictment from possessing firearms.Public defenders have overturned convictions for felons found with guns. Several state-level assault weapons bans have faced constitutional challenges. Some legislators have held off on passing gun control measures, worried that the courts would just strike them down.
After two years of lower-court chaos spurred by confusion over Bruen, observers were looking to the Rahimi ruling for clarification. The lopsided 8-1 ruling gave them some.
The Supreme Court almost unanimously agreed that the Second Amendment is not an unlimited right, and that a gun safety law without an exact historical analog could remain constitutional. Chief Justice John Roberts, who authored Friday’s ruling in Rahimi, called the court’s decision “common sense.”
The nationwide deep dive into obscure colonial-era laws and long-ignored historical monographs had gone overboard, Roberts seemed to imply. Historical gun regulations and modern ones simply need to share the same guiding principle, he wrote.
The fact that the early Republic had laws to curb threatening other people with weapons, and a civil system of imposing “sureties” that set bonds on specific people deemed dangerous in order to dissuade them from threatening others, was enough to tease out a working principle. “When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed,” Roberts wrote.
New laws don’t need to have precise historical antecedents — a demand that would make it difficult for Congress to pass any new gun laws after the Civil War.
That clarification leaves many of the dozens of other post-Bruen constitutional challenges to gun safety laws standing on shakier ground, especially considering that Roberts’ opinion comes across as frustrated that this wasn’t obvious.
Roberts appeared impatient with the nitpicking over the degree of similarity between historical firearm regulations and modern ones, emphasizing that Bruen didn’t ask for a “historical twin.” He criticized the 5th U.S. Circuit Court of Appeals for ignoring the obvious applications in which the law temporarily disarming domestic abusers would be constitutional and instead focusing on a few hypothetical scenarios where it might present concerns.
And he made clear that the problem extended beyond the 5th Circuit, writing that “some courts have misunderstood the methodology of our recent Second Amendment cases.”
All of this comes as welcome news to reformers, who now see Bruen as less of a death sentence for gun safety than they did two years ago.
“This decision moves the needle very much in favor of gun violence prevention laws,” said Janet Carter, a lawyer with Everytown for Gun Safety. “The same mistake is being made by several other lower courts. I’m optimistic that this decision will point lower courts in the right direction.”
But beneath the consensus, the conservative justices who greenlighted the new Second Amendment standard appeared uncertain of how to apply it to other questions. Three of them wrote concurring opinions defending the “originalist” notion of trying to interpret gun rights in the context of the framers’ understanding. They all emphasized that the Rahimi decision applied narrowly to his long-shot case, and that judging the constitutionality of gun laws by historical tradition would still provide a legal basis for future challenges.
Justice Neil Gorsuch raised the possibility that the law they upheld might be unconstitutional if someone subject to a protective order for domestic violence attempted to secure a firearm for self-defense. Justice Brett Kavanaugh highlighted that the court still endorsed limitations like keeping firearms away from felons, forbidding firearms in sensitive places, and regulating gun sales. Justice Amy Coney Barrett foreshadowed that harder gun constitutionality questions are still yet to be resolved.
If there’s a broad takeaway to pair those concurring opinions with Roberts’, it’s that the Supreme Court’s Second Amendment standard is still evolving.
“What is telling is that this is an easy case, but it took 100 pages of opinions to explain why,” said Eric Ruben, a law professor at Southern Methodist University anda fellow at the Brennan Center for Justice.
Justice Thomas, who authored the Bruen standard, nevertheless dissented from the otherwise unanimous opinion.
Guiding principles weren’t enough for Thomas. His opinion makes clear that he was looking for precisely the kind of “historical twin” that Roberts castigated the 5th Circuit Court of Appeals for demanding. Surety laws weren’t similar enough to barring someone under a protective order from possessing a gun because surety laws didn’t bar firearm possession, Thomas wrote.
The only legitimate way to deprive someone of their Second Amendment rights, in Thomas’ view, is to convict them of a serious crime.
“Assuming C.M. allegations could be proved, Texas could have convicted and imprisoned Rahimi for every one of his alleged acts,” Thomas wrote, referring to Rahimi’s former partner.
He was echoing the National Rifle Association’s brief in the case, which argued that protective orders issued by civil courts didn’t afford enough due process to strip someone of their constitutional right to bear arms.
“Rahimi should not only lose his Second Amendment liberties, but he should also lose all of his liberties ― if the allegations against him are ultimately proven true with sufficient due process,” the NRA’s filing read. “But constitutional safeguards cannot be set aside to obtain those ends.”
In fact, Texas did prosecute Rahimi for his alleged misdeeds. Police released him repeatedly on bail until his arrest in connection with a spate of shootings, highlighting the issue that drove the passage of the 1994 law in the first place: Criminal proceedings move slowly because due process and the presumption of innocence demand it. But sometimes people in danger need to be protected immediately.
While the conservative-dominated Supreme Court may endorse a more expansive view of gun rights than it has in the past, the Rahimi decision made clear that Thomas is the high court’s only Second Amendment absolutist.
But it’s far from settled how the Supreme Court will rule when it takes the next of the dozens of challenges percolating up from the lower courts. Friday’s outcome indicates that the new approach based on historical analysis may yet yield novel and inconsistent rulings.
Need help? In the U.S., call 1-800-799-SAFE (7233) for the National Domestic Violence Hotline.
