Supreme Court sounds wary of extending gun rights to domestic abusers

The Supreme Court justices on Tuesday sounded wary of extending the 2nd Amendment to keep guns in the hands of potentially dangerous people who are put under a domestic violence restraining order.

Both conservatives and liberals suggested judges had gone too far in a Texas case by striking down the federal law that takes away firearms from persons who had threatened a domestic partner or their child.

In their comments and questions, the justices said they agreed with the idea that people who are shown to be dangerous can lose their rights to have firearms.

Justice Amy Coney Barrett said the law allows removing guns from someone “based on dangerousness. Why can’t we just say that?”

“We would be happy with that,” said Solicitor Gen. Elizabeth Prelogar on behalf of the Biden administration. “The durable principle” in the Constitution is that “you can disarm dangerous people.”

Prelogar was defending the constitutionality of a 1994 law that denies guns to persons who are judged to pose a “credible threat” to a domestic partner or a child.

Justice Neil M. Gorsuch said the lower court had gone too far by striking down the entire law and freeing all those who were found to present a danger of domestic violence.

“This is a facial challenge” to the law, he said, not a case where someone claims he was treated unfairly.

“Do you have any doubt that your client is a dangerous person?” Chief Justice John G. Roberts Jr. asked an attorney representing a Texas man who challenged the constitutionally of domestic violence restraining orders and said they violate the 2nd Amendment.

None of the justices said directly they agreed with such a claim.

At issue before the court was not just domestic violence laws but the legal status of modern gun control measures that deny firearms to potentially dangerous people, including felons and drug addicts.

The court’s conservatives have supported gun rights under the 2nd Amendment, and last year Justice Clarence Thomas wrote an opinion for a 6-3 majority that threatens many of the nation’s gun laws enacted since the 1960s.

Thomas said the government may not deny an individual’s right to bear arms unless it can “affirmatively prove” the restriction is “consistent with this nation’s historical tradition.”

Few gun laws can meet that test because there were few legal restrictions on guns in early American history.

Relying on Thomas’ opinion, the 5th Circuit Court of Appeals in New Orleans struck down the 1994 federal law that takes away the firearms of persons who have been judged to pose a “credible threat” to an intimate partner or their children.

“Doubtless,” the appellate judges said, the law was well-intended and “meant to protect vulnerable people in our society,” but that is not sufficient.

They ruled for Zackey Rahimi, a Texas man who had grabbed an ex-girlfriend and tried to force her into his car. She escaped and sought protection from the courts after he threatened to shoot her. He was later involved in five shooting incidents after a Texas state judge had put him under a restraining order that required him to give up his guns.

When police went to arrest him, they found two guns in his home, and he was charged with violating the court order.

But the 5th Circuit overturned his conviction and struck down the law as unconstitutional. “While hardly a model citizen, [Rahimi] is nonetheless among the people entitled to the 2nd Amendment’s guarantees,” wrote 5th Circuit Judge Cory T. Wilson.

The oral argument Tuesday in the case of U.S. vs. Rahimi was closely watched for clues as to whether the court’s conservatives remain united behind Thomas’ history and approach to the 2nd Amendment.

In the past, Roberts and Justice Brett M. Kavanaugh said they believe the 2nd Amendment permits “a variety of gun regulations.” And Barrett had said dangerous people may be denied guns.

In her appeal, Prelogar wrote “the 2nd Amendment allows Congress to disarm persons who are not law-abiding, responsible citizens.”

She noted the court’s conservatives had repeatedly described the Constitution as protecting the “right of an ordinary law-abiding citizen” to have a gun for self-defense. However, “from the earliest days of the republic to modern times, legislatures have disarmed individuals who could not be trusted with firearms,” she said.

States enforce these restraining orders, she said, and at least 48 states authorize taking away guns from people who are judged to pose a danger to a domestic partner. However, if the high court ruled the federal law violates the 2nd Amendment, its decision would likely void the state laws as well.

Prelogar said the need for the law was obvious. “Firearms and domestic strife are a potentially deadly combination,” she wrote, quoting a 2009 opinion by Justice Ruth Bader Ginsburg. Studies have shown the “presence of a gun in a household with a domestic abuser increases the risk of homicide five-fold,” Prelogar wrote.

Arguing for Rahimi is J. Matthew Wright, a federal public defender from Amarillo, Texas. In his legal brief, he said Thomas’ opinion “makes this an easy case. … The founders never intended to grant Congress the power to say who could keep arms.”

At stake in the outcome of the case are some California gun laws.

In 1999, California was among the first states to forbid not just the purchase of a new gun, but also the possession of any firearms by a person under a temporary restraining order, according to the bipartisan California Legislative Women’s Caucus.

In response to the 2014 mass shooting in Isla Vista that left six dead, California was “the first in the United States to allow immediate family members of a person threatening violence to petition for the [restraining] order,” the group added in a friend-of-the court brief.

It objected to the court’s focus on “originalism” and early American history to decide the fate of the nation’s modern gun laws.

“The fact that women were not able to legislate, let alone vote, when this country was founded must not shackle current women legislators from enacting reasonable, limited and effective laws to address the scourges of domestic violence and mass shootings,” the group said.