Second Amendment rights for abusers? Justices seem skeptical.

The U.S. Supreme Court today appeared skeptical that the Constitution protects the right of a domestic abuser to possess a firearm. 

A year after issuing a decision expanding the Second Amendment right to carry a gun, the justices heard oral arguments in a case testing the limits of that right – and testing the functionality of a vague history-and-tradition test the court outlined in that 2022 decision.

Over two hours of arguments, the justices grappled with questions of when, and how, to balance constitutional tradition against personal safety. They also debated how a right crafted almost 250 years ago – when women possessed very few rights of their own – can be regulated in a modern world where guns mean domestic fights can have deadly consequences.

Among the justices, “there did seem to be a general consensus that today’s legislators are not constrained to only pass [gun] laws that existed in the late 1700s or 1800s,” says Eric Ruben, a professor at Southern Methodist University Dedman School of Law and a former fellow at the Brennan Center for Justice in New York.

“But the court quickly got into the weeds” around how courts should determine the extent of those constraints, he adds. Those methodological questions “are so relevant now,” Professor Ruben continues, “because the Supreme Court in the last year said that modern-day gun laws can only be constitutional if they’re analogous, in some ill-defined sense, to historical ones.”

The court has gradually expanded Second Amendment protections in recent years. In 2008, the court ruled for the first time that the Constitution protects the right to keep a firearm in the home. In 2022, in New York State Rifle & Pistol Association v. Bruen, the court expanded that protection to carrying a firearm anywhere in public.

In Bruen, the court held that a gun regulation is only constitutional if it’s consistent with “the Nation’s historical tradition of firearm regulation.” The high court went into little detail beyond that, and lower courts have struggled to interpret the rule consistently. The case heard by the justices this morning, United States v. Rahimi, represents the first test of where to draw that line between tradition and public safety.

The question at issue is whether a federal law prohibiting Zackey Rahimi from possessing a gun violates the Second Amendment. The law was triggered in 2020 when a state judge subjected him to a protective order for committing “family violence” against his ex-girlfriend. Mr. Rahimi argues that there is no historical analog for such a prohibition, and the U.S. Court of Appeals for the 5th Circuit agreed. 

Can U.S. disarm “dangerous people”?

Setting aside the constitutional question, there seemed little doubt among the justices that Mr. Rahimi represents a danger to his ex-girlfriend, and the community at large. Case documents note he faces several criminal charges, including some stemming from a shooting spree he allegedly went on after receiving the protective order.

“You don’t have any doubt that your client’s a dangerous person, do you?” Chief Justice John Roberts asked Matthew Wright, Mr. Rahimi’s lawyer.

Mr. Wright answered that he would want to know “what ‘dangerous person’ means.”

“Well, it means someone who’s shooting, you know, at people. That’s a good start,” replied the chief justice.

The constitutional question itself seemed more challenging for the justices during arguments – as it has been for federal courts in the year since Bruen. Various cases have seen courts disagree over whether the government can ban the possession of guns in “sensitive places” like mass transit and places of worship, or by people convicted of nonviolent felonies, and whether the government can restrict self-manufactured “ghost guns.”

Justice Amy Coney Barrett, as a federal appeals court judge, ruled that it’s constitutional for the government to disarm “dangerous people.” During Tuesday’s hearing, she appeared sympathetic to the Biden administration’s argument that the federal government can prohibit domestic abusers from possessing guns.

But “how does the government go about showing whether certain behavior qualifies as dangerous?” she asked. “This might be [straightforward], but then you can imagine more marginal cases.”

History and the rights of women

Indeed, the Rahimi case asks a pointed – and emotional – question of Bruen’s history-and-tradition test. Nearly half of all murders of adult women are committed by intimate partners, and more than half of those murders involve a firearm, according to the U.S. Centers for Disease Control and Prevention. Meanwhile, Bruen requires courts to focus on laws from a time period when women were considered the legal property of their fathers or husbands.

But the justices appeared cognizant that they will be hearing less pointed cases in the future, such as whether the government can prohibit nonviolent felons from possessing a gun. Justice Elena Kagan, for example, asked U.S. Solicitor General Elizabeth Prelogar if there was any guidance she thought the high court could give lower courts on how to apply Bruen both in this case and beyond.

“There seems to be a fair bit of division and a fair bit of confusion about what Bruen means and what Bruen requires in the lower courts,” added Justice Kagan.

Ms. Prelogar responded with a number of suggestions, including telling lower courts to study a range of historical sources beyond regulations. But with a decision in Rahimi expected next June, it’s unclear if that ruling will be where justices choose to provide that guidance.

“The court is likely to just decide the issue here and leave those questions – about [laws disarming] felons, unlawful drug users – for another day,” says Andrew Willinger, executive director of the Center for Firearms Law at Duke Law School.

But, he adds, “it’s clear from the argument that some justices want an even broader clarification, and to offer some guidance to lower courts that are struggling with this test.”