On the constitutionality of a gun law that protects domestic violence against anyone violating a domestic violence court order and the Fifth Circuit Court of Appeals
The U.S. Supreme Court on Tuesday seemed likely to uphold a federal law that bans gun possession for anyone subject to a domestic violence court order. The court made a big decision on gun rights last year.
Sixteen months ago, the conservative court majority broke sharply with the way gun laws had been handled by the courts in the past. In a landmark decision, the six-justice majority ruled that in order to be constitutional, a gun law has to be analogous to a law that existed at the nation’s founding in the late 1700s.
The law passed in 1994 is attributed to the work of the defendants in the case, such as Zackey Rahimi. In 2019 he assaulted his girlfriend in a parking lot, and after realizing that a bystander saw the assault, he fired a gun at the witness, and threatened to shoot his girlfriend if she told anyone. Two months later, a Texas court granted her a protective order, suspended Rahimi’s gun license, and warned him that possession of a gun while the order remained in effect is a federal felony.
He pleaded guilty to charges of violating the federal gun law and was sentenced to six years in prison. But he continued to press his constitutional challenge, and ultimately the Fifth Circuit Court of Appeals ruled that the law is unconstitutional because there was nothing like it in the 1790s. The federal government appealed, contending that there is a long historical tradition in this country of disarming people who are dangerous.
The First Judges Decided that Guns for Domestic Abusers are Constitutional: Deputy Solicitor General Michael Dreeben’s Anatomy of the 1700s
Former Deputy Solicitor General Michael Dreeben, who was in charge of the Justice Department’s criminal appeals docket for 24 years, says there is a good reason there is no precise analog from the 1700s.
Domestic violence was not considered a serious problem in the early days of the country. Women were viewed more or less as property of their husbands,” he says. firearms are now the instrument of choice in domestic violence conflicts in a way that was not true at the start, according to a new feature of dynamics. The government believes that those realities make for a morenuanced view of the 1700s.
“I think there’s a certain whistling past the judicial graveyard, if you will,” says Jerry Beard, a former assistant federal defender in Texas, who served in the office that is representing Rahimi.
He says the government is throwing spaghetti at the wall in a bid to get something to stick. we want something else.'”
Dreeben counters that the court has always adjusted its doctrine to fit modern times. Even though there were no cell phones at the founding, the court still prohibited wiretaps and tracking devices without a warrant.
Law-bound citizens have a limited right to firearms: ACLU Legal Director David Cole and the case against a federal law that bars felons from having firearms
Dreeben calls the information available today about domestic violence and guns “shocking,” noting that “in 2019 70 women were shot and killed by a domestic partner each month. Nearly a million women have been shot at,” and that “domestic assaults that involve guns are 11 times more likely to cause death than assaults without guns.”
ACLU Legal Director David Cole, however, has a narrower view; he thinks this statute is constitutional as written because it requires that the protective order include a finding of dangerousness and in this case Rahimi was found to be a danger to his wife. Cole points out a flaw in the government’s argument. He says the idea that law-bound citizens only have a limited right seems odd. You can have First Amendment rights, Fourth Amendment rights, fifth Amendment rights if you’re willing to be a responsible person.
Several justices said this is an easy case. The harder ones lie ahead, among them: federal and state laws that bar convicted felons — even those convicted of non-violent crimes — from having guns.
He says that a decision invalidating the federal law “will rip a hole” in the National Instant Criminal Background Check System, which requires protective orders of the type that Rahimi had, to be entered into the system so they can serve as flags to deny the purchase of firearms.
More generally, Dreeben says, a decision against the federal law could cast doubt on an a network of prohibitions enacted by state and local governments that have been shown to be even more effective because of their greater breadth.
Beard says that’s a tad dramatic and his former colleagues are on the other side. I have more trust in the court than the government has.
The Seventh Circuit Court of Appeals ruled that the Second Amendment wasn’t meant to protect the public from being dangerous or law-abiding
The law banning felons from owning guns was upheld by the Seventh Circuit Court of Appeals. She dissented because the felon who brought the case had been convicted of a non-violent crime. And Kavanaugh wrote a 52-page dissent in 2011 when the D.C. Circuit Court of Appeals upheld a ban on “assault weapons” and magazines for more than 10 rounds of bullets, plus broad registration requirements. Two of the judges in the majority were appointed by Republican presidents.
Solicitor General Elizabeth Prelogar, representing the government, told the justices that under the court’s most recent decisions, including last year’s, Congress may disarm those who are not law-abiding, responsible citizens.
There is no evidence that the Second Amendment was ever meant to prevent legislatures from disarming dangerous individuals.
People do a lot of dumb things, like driving over the speed limit and putting the trash in the wrong place, but they don’t lose their constitutional rights for that. Pressed by Chief Justice John Roberts, Prelogar agreed that the word responsible is “something of a placeholder for dangerousness.”
“There’s no daylight between not responsible and dangerous?” Justice Brett Kavanaugh asked. No daylight, Prelogar agreed, adding that “our understanding of what history and tradition reflect … is those whose possession of firearms presents an unusual danger beyond the ordinary citizen.”
The majority of the court’s conservatives seemed to accept that proposition, but Justices Samuel Alito and Clarence Thomas were not sold on it. The lower courts had different interpretations of last year’s broad decision, which was the work of Thomas. There seems to be a bit of division as to what Bruen means and what the lower courts need to do in order to fulfill it.
The Fifth Circuit Court of Appeals stated that the federal law was unconstitutional because of the Supreme Court’s ruling in November 2022, after Rahimi persisted in his challenge.
Rahimi’s lawyer, federal public defender Matthew Wright, struggled to defend that decision Tuesday, telling the justices there is no law from the founding era that is analogous to this one.
The court considered the Bruen case and found that a ban at the time of the founding was essential. “We say that the government has no right to do anything,” if there is a ban from the founding era. She asked with disbelief.
The case for a gun control law: a rebuttal to the ex-girlfriend of the J.C. Barrett testimonies
Justice ConeyBarrett was not convinced and noted that the ex-girlfriend submitted a sworn affidavit giving quite a lot of detail about the threats. It’s not like he just showed up and the judge said ‘credible finding of violence.'”
“I think maybe,” Wright answered, prompting this from Kagan: “I will tell you the honest truth, Mr. Wright. I feel like you are running away from your argument because the implications of your argument are just so untenable that you have to say ‘no, that is not really my argument.'”
Indeed, the court’s decision in the Rahimi case will have ripple effects. It may make lower courts more hesitant to strike down laws aimed at preventing dangerous people from having guns.