Supreme Court Agrees To Hear Major Gun Rights Case This Fall

The US Supreme Court on Friday agreed to take on another major Second Amendment case, this time evaluating the constitutionality of a federal law barring gun possession by people subject to a domestic violence restraining order. 

Following years of relentless refusals to hear gun rights cases — to the point that Justice Clarence Thomas chided his peers for a “decade-long failure to protect the Second Amendment” — the Supreme Court is now showing a revived appetite for questions about the right to armed self-defense.

Last year brought the enormously impactful decision in New York State Rifle and Pistol Association v. Bruen. In that ruling, the court declared that gun control laws are only constitutional if they are “consistent with this nation’s historical tradition of firearm regulation.”

The application of that new test has already led judges across the country to reject many gun control laws, though different outcomes have been observed as different courts evaluate similar gun laws. By taking this new case, the Supreme Court is demonstrating its interest in clarifying how the “historical tradition” test should be applied.  

Unlike many recent high-profile legal challenges to gun control measures, the case that will be heard this fall — United States v Rahimi — isn’t led by any gun-rights organizations. It also centers on a character, Zackey Rahimi, that few people across the political spectrum will sympathize with. 

In February 2020, Rahimi agreed to a civil protective order issued by a Texas court after his ex-girlfriend alleged that he assaulted her. In addition to barring Rahimi from harassing or threatening the ex-girlfriend or their child, the order explicitly prohibited him from possessing firearms. 

Here’s how the US Court of Appeals for the Fifth Circuit describes Rahimi’s subsequent antics:

“Between December 2020 and January 2021, Rahimi was involved in five shootings in and around Arlington, Texas. On December 1, after selling narcotics to an individual, he fired multiple shots into that individual’s residence. The following day, Rahimi was involved in a car accident. He exited his vehicle, shot at the other driver, and fled the scene. He returned to the scene in a different vehicle and shot at the other driver’s car. On December 22, Rahimi shot at a constable’s vehicle. On January 7, Rahimi fired multiple shots in the air after his friend’s credit card was declined at a Whataburger restaurant.”

Police obtained a warrant to search his home and found a pistol and rifle. A federal grand jury indicted him for possessing a firearm while being subject to a domestic violence restraining order. Though he’d pled guilty before the Bruen decision, his constitutional appeals eventually found their way to the Fifth Circuit.

In February of this year, the Fifth Circuit panel ruled, 3-0, that the federal law at issue in the case fails to pass Bruen’s “historical tradition” test.  

In explaining that test in the Bruen decision, Justice Thomas wrote: “Analogical reasoning requires only that the government identify a well-established and representative historical analogue, not a historical twin…So even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.” 

However, federal attorneys tried in vain to find laws from the founding era that are analogous to the federal gun-ownership prohibition imposed on the subjects of domestic violence restraining orders. The lawyers also advanced a dangerous principle, telling the judges that Congress should be able to bar gun ownership by people who are deemed “irresponsible” or “non-law-abiding.”

Flatly rejecting that argument, Judge Cory T. Wilson wrote:

“The government’s proffered interpretation lacks any true limiting principle…Could speeders be stripped of their right to keep and bear arms? Political nonconformists? People who do not recycle or drive an electric vehicle? One easily gets the point: Neither Heller nor Bruen countenances such a malleable scope of the Second Amendment’s protections.”

A troubling primary trait of the disputed federal law is that the domestic restraining orders that trigger a suspension of an individual’s right to gun possession do not spring from a criminal conviction, but instead from the civil justice system. In a concurring opinion, Judge James Ho wrote:

“Our Founders understood that those who commit or threaten violence against innocent law-abiding citizens may be arrested, convicted, and incarcerated. They knew that arrest and incarceration naturally entails the loss of a wide range of liberties—including the loss of access to arms.

So when the government detains—and thereby disarms—a member of our community, it must do so consistent with the fundamental protections that our Constitution affords to those accused of a crime.”

Despite the soundness of the arguments against the law, this case — starring an alleged domestic abuser and maniacal shooter — promises to inflame extra passion among leftists while scaring squishy Republicans away from taking principled stances.

Depending on its scope, the decision could also have implications for the rising wave of “red flag laws” that use extreme risk protective orders to disarm individuals without due process. Get your popcorn ready for arguments this fall — and brace for fireworks next June.