Supreme Court looks poised to uphold ban on guns for accused domestic abusers

The Supreme Court appears likely to uphold a federal ban on alleged domestic abusers possessing firearms, as several conservative justices signaled reluctance Tuesday to adopt an extreme version of the court’s history-focused approach to gun-rights cases.

During a 90-minute oral argument, the justices expressed skepticism that the “history” and “tradition” of gun regulations at the time of the nation’s founding require that the modern statute on domestic violence be declared unconstitutional.

Justices Neil Gorsuch and Amy Coney Barrett — two conservatives who may provide key votes in the case — did not seem particularly troubled by the domestic-abuser restriction Congress adopted in 1994, even as they expressed concerns that some government efforts to deny guns to people deemed dangerous could run afoul of the Second Amendment or of due process rights.

Justice Brett Kavanaugh, another potentially pivotal vote, was fairly quiet during the argument, though he did raise the prospect that striking down the law could imperil portions of a federal background-check system.

“According to the government, under your argument, that system could no longer stop persons subject to those domestic violence protective orders from buying firearms,” Kavanaugh told the lawyer for Zackey Rahimi, a Texas man who was charged with violating the federal ban.

The case, U.S. v. Rahimi, tests how the Supreme Court will apply a new approach it announced last year for evaluating the constitutionality of gun restrictions.

That approach, adopted in a New York case on concealed-carry limits, requires courts to investigate whether analogous gun restrictions existed in early American history.

Matthew Wright, the federal public defender representing Rahimi, said the absence of early laws explicitly barring gun ownership from domestic abusers meant that the current ban cannot stand.

But domestic violence was not a well-recognized issue centuries ago, and Solicitor General Elizabeth Prelogar, who defended the ban, said the history-focused test should not be so rigid. She called the dispute an “easy” one for the justices to resolve.

“Congress may disarm those who are not law-abiding responsible citizens,” she said. “This is not a close case.”

Indeed, the Biden administration lawyer seemed so convinced that the government had the decision in the bag that she used her brief rebuttal time to urge the justices to go even further than the issue of domestic abusers and torpedo other rulings in which district courts have used history to strike down laws that ban possession of guns by convicted felons and the possession of firearms with obliterated serial numbers.

“Those are clearly untenable results. They are profoundly destabilizing, and Bruen doesn't require them,” Prelogar insisted, referring to the New York case decided last year in an opinion by conservative Justice Clarence Thomas.

Wright told the justices that the procedures used in state courts to disarm people subject to domestic violence restraining orders are often perfunctory and unfair. Rahimi, he said, was deprived of his right to bear arms based on a judicial order issued that he agreed to after a hearing in which he did not have a lawyer and had limited opportunity to present evidence.

“They made a one-sided proceeding that is short, a complete proxy for a total denial of a fundamental and individual constitutional right,” Wright said.

However, while opposing the blanket federal ban on possession of weapons by people subject to domestic restraining orders, Wright conceded that in some circumstances a judge could take a weapon away from an individual as part of a state court proceeding.

That puzzled some justices.

“I’ll tell you the honest truth, Mr. Wright. I feel like you’re running away from your argument, because the implications of your argument are just so untenable,” Justice Elena Kagan said.

Barrett and Chief Justice John Roberts expressed some discomfort with the government’s contention that authorities should have the right to keep guns from people who are “not responsible.”

“Responsibility is a very broad concept,” Roberts said, asking if people speeding or yelling at a basketball game could be considered irresponsible and then banned from owning weapons. “I mean, not taking your recycling to the curb on Thursdays. … What seems like it’s irresponsible to some people might seem like not a big deal to others.”

“So, it’s not a synonym for virtue?” Barrett asked.

“No,” Prelogar said, adding that a lack of responsibility in this context meant dangerousness and encompassed people like minors and the mentally ill, whose possession of weapons would pose an unacceptable risk to others even if they weren’t taking actions that could or would be prosecuted criminally.

Prelogar said that in asking for the authority to keep guns from those who are “dangerous” or not “responsible” the government was simply asking the court to faithfully apply last year’s decision in Bruen, not to modify it.

“We have tracked the court’s own language here,” she said.

However, two of the liberal justices took more direct aim at Bruen, suggesting that its attempt to use history to assess modern gun restrictions was unwise because it led to contradictory rulings in lower courts and did not honestly acknowledge the history of stripping weapons from disfavored groups like slaves or those loyal to the British crown.

“There seems to be a fair bit of division and a fair bit of confusion [about] Bruen in the lower courts,” Kagan said.

Kagan also suggested the drive to find historical analogs had limits. “You know, 200 some years ago, the problem of domestic violence was conceived very differently,” she said. “People had different understandings with respect to pretty much every aspect of the problem. So, if you're looking for a ban on domestic violence, it's not going to be there.”

Justice Ketanji Brown Jackson repeatedly raised the issue of bans on slaves owning guns and she accused both sides in the case of dismissing the relevance of those categorical bans.

“We’re not talking about the history and tradition of all the people, but some of the people,” she said. “I'm a little troubled by having a history and traditions test that also requires some sort of culling of the history so that only certain people's history counts.”