Supreme Court wrestles with gun limits after ruling in New York case
An activist holds up a sign at a demonstration last Tuesday outside the U.S. Supreme Court in Washington, D.C. Credit: Getty Images/Alex Wong
WASHINGTON — Proponents of gun restrictions were cautiously optimistic last week after several Supreme Court justices appeared reluctant during oral arguments to overturn laws to disarm people subject to domestic violence restraining orders.
Yet both sides said the hearing left no clear answer to whether the high court’s majority opinion in U.S.A. v. Rahimi will be limited in its findings or if it also will give guidance on how to apply the new and confusing historical standard for interpreting the Second Amendment.
“I've done lots of practice in the Supreme Court and I know that they do surprise me sometimes, but on this one I have to say I think there's very good cause for optimism,” Douglas Letters, chief legal officer of Brady United, a nonprofit gun-violence prevention group, told Newsday.
“That, then, raises a very key next question: How broadly or narrowly do they write it?” Letters said of the decision, an assessment echoed by many in the legal profession.
The case involves Zackey Rahimi, a drug dealer who assaulted the mother of their child and later threatened to shoot her if she told anyone. In 2020, she won a restraining order against him that barred gun possession. But he kept his guns and fired them publicly five times, court records say. Rahimi said in July he no longer wanted to own firearms and expressed regret for actions that got him into trouble.
The question before the court is whether the Second Amendment allows a 1994 federal law that bars U.S. citizens from possessing guns when they are under domestic violence restraining orders.
J. Matthew Wright, Rahimi’s attorney, insisted it doesn’t because such orders did not exist during the country’s founding. But U.S. Solicitor Elizabeth Prelogar argued the Second Amendment allows Congress to disarm persons who are not law-abiding, responsible citizens.
Here are some takeaways from the oral arguments last Tuesday:
Chief Justice John G. Roberts: “Well, to the extent that's pertinent, you don't have any doubt that your client's a dangerous person, do you?”
Wright: “Your Honor, I would want to know what ‘dangerous person’ means.”
Roberts: “Well, it means someone who's shooting, you know, at people. That's a good start.” (Laughter)
Wright: “That’s fair.”
That question came up in a discussion of whether the Second Amendment allows Congress to bar dangerous people from having guns.
Prelogar said Supreme Court opinions have identified two categories of people who can be excluded from the right to bear arms.
There are individuals who are felons and dangerous who are not “law-abiding citizens.” And there are those who are “not responsible” — people she described as both intentionally dangerous and unintentionally dangerous, such as the mentally ill, drug addicts or minors.
In this case, she said, Rahimi is among those who are “not responsible.”
Esther Sanchez-Gomez, litigation director at the GIFFORDS Law Center, a nonprofit with offices in Washington, D.C. and San Francisco that promotes gun control laws, told Newsday the justices seemed open to Prelogar’s views.
“Throughout oral argument,” Sanchez-Gomez said, “even the conservative justices seem to acknowledge — both implicit in the way that they framed their questions and even explicitly that Mr. Rahimi is not the sort of person we want having guns in our society — that the Second Amendment allows us some leeway to regulate that kind of conduct.”
Justice Ketanji Brown Jackson: “What if we had a hypothetical in which we actually determined based on the historical record that domestic violence was not considered dangerousness back in the day?”
Prelogar: “You would recognize that it is consistent with the Second Amendment's original and enduring meaning that you can disarm dangerous people, and the conception of what regulations that permits today is not controlled by Founding-Era applications of the principle.”
Jackson: “Then what's the point of going to the Founding Era?”
Prelogar proposed a reading of history that focuses on principles the founders established, not a literal reading of what they did at the time.
She cited the founders’ determination that loyalists to England were dangerous and could be disarmed and that Congress and legislatures could decide what’s dangerous now.
Jackson joined the Supreme Court after Justice Clarence Thomas had written the majority opinion in New York State Rifle and Pistol Association v. Bruen last year. The ruling requires interpretation of the Second Amendment based on "this Nation’s historical tradition of firearm regulation." But given the changes over time, the opinion said courts use "analogies to those historical regulations."
Jackson noted the exclusion of Blacks, slaves and Native Americans from arguments by Wright and Prelogar and said the court was looking for historical sources "that applied to the regulation of white Protestant men related to domestic violence.”
Wright disagreed but added the historical analysis focused on “a rights-holding citizen of the United States” — at the time, only white men.
Justice Elana Kagan: “There seems to be a fair bit of division and a fair bit of confusion about what Bruen means and what Bruen requires in the lower courts. And I'm wondering if you think that there's any useful guidance, in addition to resolving this case, but any useful guidance we can give to lower courts about the methodology that Bruen requires … ”
Prelogar: “Yes. I think that there are three fundamental errors and methodology that this case exemplifies and that we are seeing repeated in other lower courts and that this case provides an opportunity for the Court to clarify that Bruen should not be interpreted in the way that [Wright] is suggesting.”
But legal experts question whether the court's majority will produce an expansive opinion with guidance on Bruen’s historical interpretation of the Second Amendment or a tightly focused decision on whether the federal domestic violence restraining order is unconstitutional.
“I'm not sure after oral arguments whether there will be a majority of justices who agree to issue guidance about how to do the Bruen test,” said Eric Ruben, a professor at Southern Methodist University's Dedman School of Law in Dallas.
“But I wouldn't be surprised if some of the justices write an opinion to try to set out some guidance,” Ruben told Newsday. “It's always tricky.”
Justice Neil Gorsuch seemed to lean toward a limited decision based on his questions and comments. So did Roberts.
Roberts told Wright, “And I understand your answer to say that there will be circumstances where someone could be shown to be sufficiently dangerous that the firearm can be taken from him.”
Wright agreed.
Roberts said, “And why isn't that the end of the case? All you need to do is show that there are circumstances in which the statute can be constitutionally applied.”
WASHINGTON — Proponents of gun restrictions were cautiously optimistic last week after several Supreme Court justices appeared reluctant during oral arguments to overturn laws to disarm people subject to domestic violence restraining orders.
Yet both sides said the hearing left no clear answer to whether the high court’s majority opinion in U.S.A. v. Rahimi will be limited in its findings or if it also will give guidance on how to apply the new and confusing historical standard for interpreting the Second Amendment.
“I've done lots of practice in the Supreme Court and I know that they do surprise me sometimes, but on this one I have to say I think there's very good cause for optimism,” Douglas Letters, chief legal officer of Brady United, a nonprofit gun-violence prevention group, told Newsday.
“That, then, raises a very key next question: How broadly or narrowly do they write it?” Letters said of the decision, an assessment echoed by many in the legal profession.
The case involves Zackey Rahimi, a drug dealer who assaulted the mother of their child and later threatened to shoot her if she told anyone. In 2020, she won a restraining order against him that barred gun possession. But he kept his guns and fired them publicly five times, court records say. Rahimi said in July he no longer wanted to own firearms and expressed regret for actions that got him into trouble.
The question before the court is whether the Second Amendment allows a 1994 federal law that bars U.S. citizens from possessing guns when they are under domestic violence restraining orders.
J. Matthew Wright, Rahimi’s attorney, insisted it doesn’t because such orders did not exist during the country’s founding. But U.S. Solicitor Elizabeth Prelogar argued the Second Amendment allows Congress to disarm persons who are not law-abiding, responsible citizens.
Here are some takeaways from the oral arguments last Tuesday:
Defining Dangerous
Chief Justice John G. Roberts: “Well, to the extent that's pertinent, you don't have any doubt that your client's a dangerous person, do you?”
Wright: “Your Honor, I would want to know what ‘dangerous person’ means.”
Roberts: “Well, it means someone who's shooting, you know, at people. That's a good start.” (Laughter)
Wright: “That’s fair.”
That question came up in a discussion of whether the Second Amendment allows Congress to bar dangerous people from having guns.
Prelogar said Supreme Court opinions have identified two categories of people who can be excluded from the right to bear arms.
There are individuals who are felons and dangerous who are not “law-abiding citizens.” And there are those who are “not responsible” — people she described as both intentionally dangerous and unintentionally dangerous, such as the mentally ill, drug addicts or minors.
In this case, she said, Rahimi is among those who are “not responsible.”
Esther Sanchez-Gomez, litigation director at the GIFFORDS Law Center, a nonprofit with offices in Washington, D.C. and San Francisco that promotes gun control laws, told Newsday the justices seemed open to Prelogar’s views.
“Throughout oral argument,” Sanchez-Gomez said, “even the conservative justices seem to acknowledge — both implicit in the way that they framed their questions and even explicitly that Mr. Rahimi is not the sort of person we want having guns in our society — that the Second Amendment allows us some leeway to regulate that kind of conduct.”
Whose History?
Justice Ketanji Brown Jackson: “What if we had a hypothetical in which we actually determined based on the historical record that domestic violence was not considered dangerousness back in the day?”
Prelogar: “You would recognize that it is consistent with the Second Amendment's original and enduring meaning that you can disarm dangerous people, and the conception of what regulations that permits today is not controlled by Founding-Era applications of the principle.”
Jackson: “Then what's the point of going to the Founding Era?”
Prelogar proposed a reading of history that focuses on principles the founders established, not a literal reading of what they did at the time.
She cited the founders’ determination that loyalists to England were dangerous and could be disarmed and that Congress and legislatures could decide what’s dangerous now.
Jackson joined the Supreme Court after Justice Clarence Thomas had written the majority opinion in New York State Rifle and Pistol Association v. Bruen last year. The ruling requires interpretation of the Second Amendment based on "this Nation’s historical tradition of firearm regulation." But given the changes over time, the opinion said courts use "analogies to those historical regulations."
Jackson noted the exclusion of Blacks, slaves and Native Americans from arguments by Wright and Prelogar and said the court was looking for historical sources "that applied to the regulation of white Protestant men related to domestic violence.”
Wright disagreed but added the historical analysis focused on “a rights-holding citizen of the United States” — at the time, only white men.
Broad or Narrow
Justice Elana Kagan: “There seems to be a fair bit of division and a fair bit of confusion about what Bruen means and what Bruen requires in the lower courts. And I'm wondering if you think that there's any useful guidance, in addition to resolving this case, but any useful guidance we can give to lower courts about the methodology that Bruen requires … ”
Prelogar: “Yes. I think that there are three fundamental errors and methodology that this case exemplifies and that we are seeing repeated in other lower courts and that this case provides an opportunity for the Court to clarify that Bruen should not be interpreted in the way that [Wright] is suggesting.”
But legal experts question whether the court's majority will produce an expansive opinion with guidance on Bruen’s historical interpretation of the Second Amendment or a tightly focused decision on whether the federal domestic violence restraining order is unconstitutional.
“I'm not sure after oral arguments whether there will be a majority of justices who agree to issue guidance about how to do the Bruen test,” said Eric Ruben, a professor at Southern Methodist University's Dedman School of Law in Dallas.
“But I wouldn't be surprised if some of the justices write an opinion to try to set out some guidance,” Ruben told Newsday. “It's always tricky.”
Justice Neil Gorsuch seemed to lean toward a limited decision based on his questions and comments. So did Roberts.
Roberts told Wright, “And I understand your answer to say that there will be circumstances where someone could be shown to be sufficiently dangerous that the firearm can be taken from him.”
Wright agreed.
Roberts said, “And why isn't that the end of the case? All you need to do is show that there are circumstances in which the statute can be constitutionally applied.”
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