On Nov. 7, 2023, the U.S. Supreme Court held an oral argument for United States v. Rahimi, a case that challenges the federal ban on gun possession by a person subject to a domestic violence restraining order (DVRO).
The Supreme Court agreed to hear this case after the U.S. Court of Appeals for the Fifth Circuit invalidated the federal ban because a person is presumed to have Second Amendment rights. America has no historical tradition in the Founding period of disarming persons on the basis of anything like a DVRO. Meeting that threshold is something the U.S. Supreme Court decided in New York State Rifle & Pistol Association v. Bruen (2022).
The individual at the center of this case, Zackey Rahimi, is being separately prosecuted in Texas state court for threatening and discharging firearms at other people. Such laws are obviously constitutional, and indeed a purpose of the right to bear arms is self-defense against such violent crimes. But the federal law at issue here was passed as “feel-good” legislation in 1994 even though state laws are more than adequate to punish assault and other crimes, domestic or not. The issue here is whether the federal law violates the Second Amendment on its face.
At the Supreme Court hearing, arguing for the government was Solicitor General Elizabeth Prelogar, a former clerk to D.C. Circuit Judge Merrick Garland, and then to Supreme Court Justices Ruth Bader Ginsburg and Elena Kagan. Matthew Wright, an attorney with the Federal Public Defender’s Office in Amarillo, Texas, argued on behalf of Rahimi.
I had the opportunity to attend the hearing. As this could be an important ruling, this article basically traces the arguments on both sides, blow-by-blow, and the Justices’ reactions as they progressed in the courtroom.
General Prelogar (she’s not a military general, but that’s how the Justices address the Solicitor General) began by arguing that the Second Amendment is limited to those who are “law-abiding and responsible.” Not being “law-abiding” means having “committed serious crimes defined by the felony-level punishment that can attach to those crimes.” Not being “responsible” “applies to those whose possession of firearms would pose an unusual danger.”
Justice Clarence Thomas asked why the government relied in the lower courts on historical laws disarming slaves and Native Americans, but now dropped that argument. Prelogar replied that these classes were not among “the people” protected by the Amendment; the focus was now on persons who were among “the people” but who were dangerous. (One could speculate that the argument was dropped out of embarrassment.)
Chief Justice John Roberts asked whether a person who drives 30 mph in a 25 mph zone is not “law-abiding.” The response was that the term does not include a “misdemeanor or minor criminal conduct under state law,” but only “serious crimes.” She explained that she was making a “misdemeanor/felony distinction,” and that Rahimi did not have a “criminal record that would justify disarmament on that basis,” but he was in the category of being a person who is not “responsible.”
Although not mentioned in the argument, federal law also disarms persons convicted of a “misdemeanor crime of domestic violence.” Persons challenging the validity of that ban are sure to use Prelogar’s statements against the government.
Roberts shot back: “Responsibility is a very broad concept. I mean, not taking your recycling to the curb on Thursdays.”
She replied that not being responsible means being “dangerous.” She suggested an analogy with “sensitive places,” “where carrying weapons will pose unique dangers” and “dangerous and unusual weapons,” meaning “arms that are especially dangerous.” Elsewhere she said that the latter asks whether the arm is “the kind of weapon that a law-abiding, responsible citizen would need for self-defense.”
She seemed to be planting seeds for a narrative to ban “assault weapons” in the future here; after all, what a citizen “needs” is chosen by the citizen, not the government. As Justice Neil Gorsuch said later in the argument, “we’re not looking for is ... it a fowler or is it ... a musket.” In other words, protected arms are not limited to fowling-pieces and muskets that were common at the Founding, but also include commonly possessed, modern firearms.
Justice Ketanji Brown Jackson asked what if at the Founding “domestic violence was not considered dangerousness,” to which Prelogar responded that “the conception of what regulations that permits today is not controlled by Founding-era applications of the principle.”
Jackson replied, “Then what’s the point of going to the Founding Era?”
But there is no evidence, Prelogar countered, that the Founders would have thought a gun ban on domestic abusers would be unconstitutional.
So, a modern law is constitutional just because no such law existed at the Founding? Keep in mind that criminal laws existed at the Founding against any kind of violence. But DVROs are issued by civil courts, without the constitutional protections of criminal procedures, such as the right to counsel and the presumption of innocence.
Justice Samuel Alito noted that one prong of the statute requires “a finding that the person represents a credible threat to the physical safety” of a person, but the alternative only requires an order that prohibits the use or threatened use of physical force, which “does not require a finding of dangerousness.”
The government’s attorney responded that “to enjoin conduct, you have to think that conduct is reasonably likely to occur.” (But the statute doesn’t say that.)
Later, she urged the court to resolve the latter issue now, “unless you want to see me here again next term on this issue,” as it was pending in another case.
“Always delighted to see you, General,” quipped Justice Gorsuch, to laughter in the courtroom.
Justice Thomas asked whether an order to disarm a person could be made by an administrative official. Prelogar replied that “it would be far more difficult to defend an executive branch or an administrative determination because of a separate Second Amendment principle that guards against granting executive officials too much discretion to decide who and who cannot have firearms.” Indeed, that was the holding in Bruen.
While not mentioned in the argument, it just so happens that New York’s Concealed Carry Improvement [sic] Act grants the licensing officer discretion to decide if the applicant is “of good moral character,” defined as “having the essential character, temperament and judgement” to have a weapon and not endanger oneself or others. Similar laws were enacted in other states to flout the Bruen decision. In Antonyuk v. Hochul, U.S. District Judge Glenn Suddaby held the requirement violative of the Second Amendment—as this was being written, it was on appeal to the Second Circuit.
Justice Alito asked if it would be a defense to a federal prosecution if the state law doesn’t require any finding of dangerousness. Prelogar said that no “as-applied challenges” could be made to federal charges. (This again indicates that the federal law is overly broad.)
Justice Elena Kagan asked what advice could be given about how to implement Bruen, to which Prelogar responded, in part, that courts should consider regulations with a high level of generality and “not nitpick,” and that where regulations were absent at the Founding, one should not assume it was because of constitutional concerns. In other words, she was arguing that the courts should interpret analogues in the broadest way. And if no historical analogues exist, they should just assume that a current law is constitutional!
Gorsuch asked if there could be “an as-applied if it’s a lifetime ban.” Prelogar responded that “there is good reason to reject as-applied challenges if and when they come.” As she well knew, an as-applied challenge was pending before the Court right then—the Range case, discussed below.
According to Prelogar, persons who are not “law-abiding” are convicted felons, while persons who are not “responsible” are those who are a danger to themself or others. Justice Amy Coney Barrett asked why not just say “dangerousness,” pointing to surety and affray laws around the Founding period.
Prelogar responded, “We don’t think dangerousness is the standard with law-abiding, and I recognize you might have some different views on that, Justice Barrett.”
That referred to then-Judge Barrett’s dissent in Kanter v. Barr (7th Cir. 2019), in which Barrett favored an as-applied challenge regarding non-violent felons who are not dangerous. As Barrett now told Prelogar, “But you’re trying to save ... the [R]ange issue. So, you’re not applying dangerousness to the crimes?” (In Range v. Garland, the Third Circuit held the felon ban to be invalid as applied to a non-violent felon. The government argues that the ban is valid no matter how harmless the crime or the convicted person might be.)
Justice Jackson asked why laws on slaves and Native Americans were not considered as analogues, “if there’s a flaw in the history and traditions kind of framework,” and if Bruen requires a legislator to “go to the archives” to look for analogues for proposed bills, then why not consider them?
Prelogar gave a vague response and her time expired.
Next up was Matthew Wright, assistant public defender for the Northern District of Texas and counsel for Rahimi. He began by stating that the courts don’t consider self-defense, necessity or duress as defenses in a dire emergency for the fleeting possession of a firearm by a person with a DVRO. As Gorsuch stated, such defenses are not relevant in a facial challenge, but would be in an as-applied challenge. Wright further observed that Congress enacted the ban here in 1994 “without the benefit of Heller, McDonald and Bruen.”
Justice Alito asked whether a restraining order against a man who threatened to shoot members of his family would be constitutional. Wright responded that “courts have always had broad power against the people who are brought before them.”
Chief Justice Roberts asked, “You don’t have any doubt that your client’s a dangerous person, do you?”
Wright responded that it depends on the meaning of “dangerous,” to which Roberts said, “Well, it means someone who’s shooting ... at people. That’s a good start.”
Laughter filled the courtroom.
Justice Kagan added that “I thought you said there’s no history of any kind of ban for anything that doesn’t relate to felonies?” Wright replied that the state had the power to “protect someone from imminent danger to life and limb.” Justice Barrett interjected that “I’m so confused, because I thought your argument was that there was no history or tradition ... of disarmament in this circumstance,” but now it seems “like your objection is just to the process.” But, Wright protested, “there is a historical tradition of separating people from their firearms when there’s an imminent threat of [un]lawful violence ... .”
Denouncing a history-and-tradition test in which “only certain people’s history counts,” Justice Jackson accused Wright of looking for sources “that applied to the regulation of white Protestant men related to domestic violence.” She did not suggest what sources were tainted.
Justice Kagan piled on, saying that “you’re running away from your argument ... because the implications of your argument are just so untenable.”
Wright replied, “I am running away from interest-balancing.” This referred to how judges balance away constitutional rights in favor of the government, a type of means-ends scrutiny condemned by Bruen.
Justice Jackson characterized Wright’s brief as arguing that the government cites no historical laws punishing Americans for possessing guns in their homes. Wright unambiguously responded that such is “the historical record that we have in this case, yes.” With that, Wright closed his argument.
Now came time for Prelogar’s rebuttal. As is often the case, the justices had heard enough and were not inclined to ask further questions.
How will the Supreme Court rule in the case, which may not occur until June 2024? Some pundits suggest that the Court may uphold the law on narrow grounds, while holding firm Bruen’s text-history approach that the liberal Justices would like to tank. But reading the tea leaves can be hazardous. We’ll have to wait and see.
Attorney Stephen P. Halbrook is a senior fellow with the Independent Institute. His latest books are America’s Rifle: The Case for the AR-15 and The Right to Bear Arms: A Constitutional Right of the People or a Privilege of the Ruling Class? See stephenhalbrook.com.