Supreme Court takes on first major gun case since landmark ruling last year softened regulations
“This is going to be the Supreme Court’s first test about whether it … really wants to inaugurate a new and more aggressive Second Amendment doctrine, and if so, how it’s going to work,” says William Baude, a law professor at the University of Chicago. Image from Shutterstock. Adjacent photo of Erwin Chemerinsky by Jim Block.
Zackey Rahimi is “hardly a model citizen,” a federal appeals court said earlier this year, in a bit of understatement.
In 2019, the Arlington, Texas, resident had an argument with his ex-girlfriend, with whom he shared a child, grabbing her by the wrist in a parking lot and pushing her into a car, according to court papers. Rahimi retrieved a gun and fired at a bystander who witnessed the confrontation.
Rahimi threatened to shoot his ex-girlfriend if she reported the incident. In 2020, a Texas state court granted a protective order to her barring Rahimi from committing “family violence” and approaching the woman or her family. The order also suspended Rahimi’s handgun license and prohibited him from possessing a firearm.
Rahimi did seek to contact his ex-girlfriend, and he once approached her house in the middle of the night. There were a series of other threats and shootings, including one when Rahimi fired his gun into the air after a fast food restaurant declined his friend’s credit card.
After police identified him as a suspect in various shootings, they obtained a search warrant for his home, where they found a pistol, a rifle, ammunition and a copy of the protective order. Rahimi was indicted by a federal grand jury for violating a 1994 federal statute that prohibits gun possession by persons subject to a domestic-violence order.
See also: “Chemerinsky: Supreme Court once again will consider the scope of gun rights”
Rahimi challenged the federal law as a violation of his Second Amendment right to keep and bear arms. But a federal district court denied his motion. Rahimi then pleaded guilty and was sentenced to more than six years in prison. He appealed his Second Amendment claim, and the U.S. Court of Appeals for the 5th Circuit initially ruled against him, citing circuit precedent that had upheld the 1994 federal statute.
But in 2022, the U.S. Supreme Court issued its decision in New York State Rifle & Pistol Association v. Bruen, which struck down a state handgun-licensing law and said the government must justify any gun restriction by demonstrating that it was consistent with the nation’s historical tradition of firearms regulation.
The 5th Circuit withdrew its opinion and asked for supplemental briefing based on Bruen. The appellate court then struck down the 1994 federal statute on its face, saying that only felons, the mentally ill and a few other groups have “historically been stripped of their Second Amendment rights.”
“Rahimi, while hardly a model citizen, is nonetheless among ‘the people’ entitled to the Second Amendment’s guarantees, all other things equal,” Judge Cory T. Wilson wrote for a unanimous three-judge panel. The 1994 law’s ban on gun possession by individuals subject to domestic-violence orders “is an outlier that our ancestors would never have accepted.”
Related article from ABAJournal.com: “Chemerinsky: Supreme Court once again will consider the scope of gun rights”
The court’s first major gun case after Bruen
On Nov. 7, the Supreme Court will hear arguments in United States v. Rahimi, its first gun case since the landmark Bruen decision.
“This is going to be the Supreme Court’s first test about whether it … really wants to inaugurate a new and more aggressive Second Amendment doctrine, and if so, how it’s going to work,” says William Baude, a law professor at the University of Chicago. “For my money, I think that the 5th Circuit, along with several other lower courts, have been sort of overreading the Supreme Court’s messages [on gun rights]. They’re probably striking down a lot more laws than the court intended them to or that [they] should.”
Robert Leider, an assistant professor at George Mason University’s Antonin Scalia Law School in Arlington, Va., said at a Federalist Society forum in September that “the real legal question that everyone is interested in with Rahimi is to see how the court clarifies and applies the text, history and tradition test that it announced two terms ago in Bruen. Unquestionably, the government sought review in this case to water down the test.”
He noted that the U.S. Solicitor General Elizabeth B. Prelogar had taken steps to expedite review of the 5th Circuit ruling and citing the “substantial disruption” the invalidation of the domestic-violence gun restriction was causing. Meanwhile, the solicitor general slow walked its cert petition in another gun case, in which the full U.S. Court of Appeals for the 3rd Circuit in June struck down the so-called felon-in-possession statute, barring those sentenced to prison for more than one year from possessing a firearm.
Leider noted that the 3rd Circuit case involves an individual convicted of food stamp fraud.
“Mr. Rahimi is the poster child for irresponsible gun possession,” Leider said of the 5th Circuit litigant and his record of gun use. “I think the government wanted this case and not the [3rd Circuit] welfare fraud case because this case is much easier on the judgment line.”
(The government’s cert petition in the 3rd Circuit case is pending.)
Some rare support for a prosecution
Prelogar, in her merits brief in the Rahimi case, says the Supreme Court has repeatedly ruled that “the Second Amendment allows Congress to disarm persons who are not law-abiding, responsible citizens.”
“Individuals subject to domestic-violence protective orders pose an obvious danger to their intimate partners because guns often cause domestic violence to escalate to homicide and because abusers often use guns to threaten and injure their victims,” the brief says.
Prelogar further argues that even if there is no precise historical match for the 1994 law, “American legislatures have long disarmed individuals whom they have found to be dangerous, irresponsible, or otherwise unfit to possess arms.”
These included American colonial laws disarming British loyalists during the Revolutionary War; 19th century state laws disarming minors, intoxicated people and vagrants; and a 20th century federal law disarming those with mental illness.
While the 5th Circuit noted that laws disarming domestic abusers did not exist at the time of the nation’s founding, “this court has emphatically rejected demands for an exact historical match,” Prelogar says in the brief. “And such demands would be particularly anomalous in addressing domestic violence, which has been the subject of significant legal and social change since the founding and which has also become increasingly deadly due to technological advances in firearms.”
The Biden administration has much of the same lineup of allies—gun control groups, more liberal states and scholars—that it had in the Bruen case. It also has the American Civil Liberties Union.
“The ACLU pretty rarely files in support of a prosecution and against a defendant in the Supreme Court, but in this case, we did,” said David D. Cole, the organization’s national legal director. “But we urged the court to take a much narrower approach than the United States takes.”
The government’s assertion that Congress may disarm anyone is who not law abiding and responsible “is extraordinarily broad,” Cole says. “The Second Amendment is a right. The notion that any right is limited to law-abiding, responsible citizens seems to me really odd.”
The 1994 domestic-abuse gun restriction, he says, “is relatively easy to defend on the ground that there is historical support for the notion that people who are individually adjudged to be dangerous, in some sort of proceeding, could be denied the right to carry a weapon. And that’s all you need to decide to reverse the 5th Circuit and uphold the application of this law.”
Not even a ‘close cousin’ to a historical match
The federal public defenders representing Rahimi argues that the solicitor general has failed to turn up anything similar to the 1994 domestic-violence gun restriction “in the American tradition.”
“Although a ‘historical twin’ is not necessary, the government cannot point to a close relative, a distant cousin, or anything bearing even a passing resemblance,” Rahimi’s brief says.
They argue that the 1994 law is a “blunt instrument” that doesn’t affect most domestic abusers, who are never subject to civil protective orders.
The 1994 law “burdens the right to possess firearms in the home, for self-defense, without adequate safeguards to reliably show the defendant’s dangerousness,” Rahimi’s lawyers argue. “The text of the statute provides no way to distinguish between orders motivated by true fear, mutual combat, misunderstanding or tactical advantage.”
Rahimi has drawn support from the same kinds of groups that usually battle any restriction on guns, including the National Rifle Association, Gun Owners of America, and the Firearms Policy Coalition, but also the National Association of Federal Defenders, which points out that defenders represent the majority of indigent defendants prosecuted under the 1994 law.
“Mr. Rahimi is an American citizen and part of our national community,” the federal defenders group says. “He is therefore among ‘the people,’ [in the words of the Second Amendment] and his right to bear arms is presumptively protected.”
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