U.S. Supreme Court delves into domestic violence and Second Amendment

“The only difference between a battered woman and a dead woman is the presence of a gun.”

-U.S. Solicitor General Elizabeth B. Prelogar

Supreme Court cases often come with sympathetic protagonists: longtime devoted partners who want to celebrate their love with marriage, or devout people of faith who say government policies keep them from living out their beliefs,, writes Robert Barnes of the Washington Post.

But in a major Second Amendment case that comes before the Supreme Court Tuesday, the Biden administration presents an almost textbook antihero in defending a federal law that bars people who are under domestic-violence restraining orders from possessing firearms.

Zackey Rahimi’s transgressions with guns, detailed in the government’s brief, range from the terrifying — shooting at a witness who saw Rahimi drag his child’s mother by her hair into his car — to the bewildering — firing a few rounds into the air outside a Whataburger when his friend’s credit card was rejected.

When Rahimi was arrested at his Texas home in early 2021, the government says, officers found “a .45-caliber pistol, a .308-caliber rifle, magazines, ammunition, and a copy of the protective order” a judge had issued that forbade him from possessing firearms.

In her brief, U.S. Solicitor General Elizabeth B. Prelogar reminded the court of something it recognized in a 2014 case: “the only difference between a battered woman and a dead woman is the presence of a gun.”

But it is a Supreme Court decision of more recent vintage that the court will be examining Tuesday. The justices will for the first time take an extensive look at the fallout from their 2022 decision in New York State Rifle & Pistol Association v. Bruen, which requires the government to point to historical analogues when defending laws that limit Second Amendment rights.

The decision has created considerable churn in lower courts, with dozens of gun-control laws declared suspect as a result of the justices’ new test. The Rahimi case asks a pointed question of the conservative justices who formed the Bruen majority: Does their test mean Congress might lack the authority to disarm those who are under domestic violence protection orders?

Gun rights advocates concede the combination of the issue at hand — the universally lauded attempt to protect domestic abuse victims — and an unsympathetic defendant creates a better climate for the government than it sometimes faces at the Supreme Court, especially when the issue is gun control.

“It’s certainly not the case I would have picked to go to the Supreme Court” as the first review after Bruen, said Clark M. Neily III, senior vice president for legal studies at the libertarian Cato Institute, which has strongly advocated Second Amendment rights. “But look, Public Interest Litigation 101 is you try to position the case in a way that is as sympathetic for your side as is possible. I don’t know whether the DOJ sequenced the Rahimi case strategically, but if they did, hats off to them.”

Neily was part of the team behind the lawsuit that led to District of Columbia v. Heller, the landmark 2008 decision that established a Second Amendment right of gun ownership for individuals. Among his clients was Dick Heller, who carried a gun in his job as a security officer in federal buildings but was forbidden from keeping one for personal protection in his home.

Neily has filed an amicus brief supporting the U.S. Court of Appeals for the 5th Circuit’s decision for Rahimi that ruled unconstitutional the federal statute barring gun possession by those subject to civil protective orders. His brief says the law does not provide adequate due process before suspending someone’s Second Amendment rights. Congress could fix the law, he wrote, but it is not the court’s role to do so.

Notably, Neily’s brief never mentions the subject of the case by name. Rahimi, Neily said in an interview, seems to be someone “who you wouldn’t want running around with guns, and I wouldn’t want running around with guns.”

The unanimous 5th circuit panel conceded Rahimi was “hardly a model citizen,” although his criminal record at the time the protective order was issued was scant. The judges found Rahimi was among those whose right to a weapon is protected by the Second Amendment, and rejected the historical comparisons advanced by the government to justify the law.

Preventing domestic abuse was “doubtless” a salutary policy goal, added Judge Cory T. Wilson, who was nominated by President Donald Trump. But the government’s logic about disarming rule-breakers had no limit, he said.

“Could speeders be stripped of their right to keep and bear arms?” he proposed. “Political nonconformists? People who do not recycle or drive an electric vehicle?”

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The allegations against Rahimi, of course, were far more serious. And his alleged crimes did not end with the 2019 violent encounter with his ex-girlfriend, who escaped Rahimi’s car when he was firing at the bystander. He later called her and threatened to shoot her if she told anyone about the assault.

A Texas court considering the woman’s request for a protective found that Rahimi had “committed family violence” and that such violence was “likely to occur again in the future.” The civil order suspended his gun license, prohibited him from possessing a firearm and warned him that possessing a firearm while the order remained in effect may be a federal felony.

It apparently did not have the desired effect. In her brief, Prelogar said Rahimi subsequently threatened a different woman with a gun, leading to state charges. Then, in the space of two months, he opened fire in public five times. He is alleged to have shot at the driver in the other car after an accident Rahimi caused, the records showed.

Rahimi currently is in jail in Fort Worth awaiting trial on some of the state charges that arose from the alleged assaults. Federal public defender J. Matthew Wright declined to comment on his client’s behalf, but said in a brief to the Supreme Court that the only relevant events in the proceedings are the protective order issued Feb. 5, 2020, and the subsequent discovery of a handgun and a rifle in Rahimi’s room on Jan. 14, 2021.

“Everything else is disputed and irrelevant to his guilt or innocence under the law,” the brief states.

Rahimi initially pleaded guilty to the federal charges and was sentenced to six years in prison. The appeals court first affirmed his sentence, but after the Supreme Court’s Bruen ruling, it withdrew its original opinion.

In Bruen, the justices voted 6 to 3 to strike down a century-old New York state law requiring a special need to carry a firearm outside the home. Justice Clarence Thomas, writing for the majority, said government officials cannot justify restrictions on firearms based solely on “an important interest” such as public safety concerns. Instead, he wrote, officials must “demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.”

The analogy does not have to be a “twin,” the court ruled, but must be relevant. “Courts should not uphold every modern law that remotely resembles a historical analogue, because doing so risks endorsing outliers that our ancestors would never have accepted,” Thomas wrote.

The decision has imperiled all types of gun regulations and left lower court judges divided over how to evaluate long-standing restrictions, in some cases asking whether they should call on historians to help. But the 5th Circuit panel said it was clear the federal statute’s ban on gun possession because of a civil protective order went too far.

The 5th Circuit swept away the historical analogies the government offered in defense of the federal law. And in a concurring opinion, Judge James C. Ho said the statute was difficult to justify because it disarms individuals “based on civil protective orders” rather than “criminal proceedings.”

Wright, in his Supreme Court brief on Rahimi’s behalf, said “Bruen makes this an easy case.”

The gun possession ban in the federal law arises not from a criminal conviction but “from a civil state-court order, often after a one-sided proceeding,” Wright wrote, adding “Whatever the founding generation believed about state and local legislatures’ power to restrict firearm ownership, they would have resisted a federal law purporting to say which citizens could, and which citizens could not, keep firearms.”

Prelogar replied that the idea Congress is “powerless to restrict firearm possession by domestic abusers and other categories of dangerous individuals defies precedent, history, and common sense.”

The government’s position in the case is supported by a wide array of states, localities, domestic violence-prevention groups and gun control activists. They provide dire warnings. “Every month, an average of 70 women are shot and killed by an intimate partner,” said a brief filed by the group Everytown for Gun Safety. “And access to a gun makes it five times more likely that a woman will die at the hands of her abuser.”

The lesson that Prelogar says should be drawn from the court’s decisions in Heller and Bruen is that the Second Amendment protects “law-abiding, responsible citizens” and allows disarming those who have been shown not to be. The phrase “law-abiding, responsible citizens” appears 40 times in the government’s brief.

Such a broad rule seems at odds with a court majority that lately has been more skeptical of gun control measures. But it could also be cast with an eye toward future challenges.

The court on Friday said it would review the federal ban on bump stocks announced by the Trump administration after the devices were used in a 2017 mass shooting on the Las Vegas Strip. And waiting in the wings at the Supreme Court are other challenges to federal bans on gun possession by those who have been convicted of nonviolent felonies and by habitual drug users.

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