Supreme Court Upholds Gun Ban for Domestic Violence Restraining Orders

By Ann E. Marimow / The Washington Post

15:27 JST, June 22, 2024

The Supreme Court on Friday upheld a federal law that prevents people who are subject to domestic violence restraining orders from having firearms – its first major Second Amendment decision since a 2022 ruling that expanded gun rights.

The court said the Constitution permits laws that strip guns from those deemed dangerous, one of a number of firearms restrictions that have been imperiled since the conservative majority bolstered gun rights in New York State Rifle & Pistol Association v. Bruen.

“When a restraining order contains a finding that an individual poses a credible threat to the physical safety of an intimate partner, that individual may – consistent with the Second Amendment – be banned from possessing firearms while that order is in effect,” Chief Justice John G. Roberts Jr. wrote in the 8-1 ruling.

But the decision was limited in scope, leaving for another day more difficult questions about the viability of other gun-control measures, such as laws banning military-style semiautomatic rifles and large-capacity magazines, or restrictions on gun possession by nonviolent offenders.

The 2022 Bruen decision required the government for the first time to point to historical analogues when defending laws that place limits on firearms. That ruling has led to a spate of court challenges against limits on gun possession, including the one in this case, United States v. Rahimi.

Even as the justices overwhelmingly upheld gun restrictions for domestic abusers, five of them chose to write separately from Roberts, suggesting deep divisions – including among the conservatives – over how lower courts should evaluate and consider historical practices when reviewing Second Amendment challenges to other gun-related laws.

The ruling somewhat loosened the test outlined in Bruen by emphasizing that modern laws need not have a “historical twin,” but rather a “historical analogue” to survive legal scrutiny.

“Some courts have misunderstood the methodology of our recent Second Amendment cases,” Roberts wrote. “These precedents were not meant to suggest a law trapped in amber.”

Justice Clarence Thomas, who wrote the Bruen decision, was the lone dissenter on Friday, insisting that it would be unconstitutional to take a gun from someone who is under a restraining order but not charged with a crime.

“The question is whether the Government can strip the Second Amendment right of anyone subject to a protective order – even if he has never been accused or convicted of a crime. It cannot,” Thomas wrote. “The Court and Government do not point to a single historical law revoking a citizen’s Second Amendment right based on possible interpersonal violence.”

Attorney General Merrick Garland praised the court’s decision, saying the law protects victims by keeping guns out of the hands of people who threaten them.

“As the Justice Department argued, and as the Court reaffirmed today, that commonsense prohibition is entirely consistent with the Court’s precedent and the text and history of the Second Amendment,” Garland said in a statement.

The challenge to the law was brought by Zackey Rahimi, a drug dealer who was placed under a restraining order after a 2019 argument with his girlfriend. He argued that the government had violated his Second Amendment rights by blocking him from possessing guns.

Rahimi knocked the woman to the ground in a parking lot, dragged her back to his car and fired a shot at a bystander, according to court records. The girlfriend escaped, but Rahimi later called her and threatened to shoot her if she told anyone about the assault. The pair have a child together.

A Texas court found that Rahimi had “committed family violence” and that such violence was “likely to occur again in the future.” It issued a protective order that suspended Rahimi’s gun license, prohibited him from having guns and warned him that possessing a firearm while the order remained in effect might be a federal felony.

Rahimi later violated the protective order and was involved in five shootings between December 2020 and January 2021, according to a government brief.

In early 2021, Rahimi was arrested at his Texas home, and police found guns, ammunition and the protective order. He was charged with illegally possessing a weapon since he had a restraining order against him.

Rahimi argued in federal court that he had the right to possess guns, but a judge ruled against him on that issue. Afterward, he pleaded guilty to the federal charge and received a sentence of six years in prison. He continued to challenge the law related to restraining orders. The U.S. Court of Appeals for the 5th Circuit reheard his case and sided with Rahimi following the Supreme Court’s Bruen ruling.

That decision struck down a New York law barring law-abiding citizens from carrying guns outside the home for self-defense. In the opinion, Thomas established a new test for gun laws: restrictions on ownership must have a parallel in American history. The decision has endangered 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.

On Friday, the Supreme Court expanded the historical sources courts can look to when evaluating modern gun restrictions to include not just statutes and regulations, but also commonly followed legal practices – such as the tradition in the nation’s Founding era of stopping individuals who threaten harm to others from using a firearm.

Laura Edwards, a Princeton University legal historian, said the separate opinions from multiple justices, including all three Trump nominees – Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett – suggest real differences over how courts should use history and tradition.

“What you’re seeing is the court confronting the complications of using the past as the means of securing and legitimatizing legal principles,” said Edwards, who submitted a brief in the case with other historians. “History does not have definitive answers for you.”

The Bruen decision’s emphasis on historical tradition continues to ripple out through lower courts in other gun-related cases, and historians have been summoned to testify on the issue and provide expertise.

Tim Carey, a law and policy adviser at Johns Hopkins Center for Gun Violence Solutions, predicted the justices, as well as the lower courts, “will likely continue to disagree on what relation to historical tradition is sufficient to uphold modern gun laws.”

“So far, we know that exact historical twins of modern day laws are not required and relevantly similar means of regulation are okay,” he said in an email. “But what exactly fills the murky space in between these two ends of the spectrum remains unclear.”

The justices seemed to acknowledge that plunging into history is a sizable task.

Justice Ketanji Brown Jackson, in her concurring opinion, said Bruen has required a “mad scramble for historical records.”

“This case highlights the apparent difficulty faced by judges on the ground,” she wrote. “Make no mistake: Today’s effort to clear up ‘misunderst[andings],’ … is a tacit admission that lower courts are struggling. In my view, the blame may lie with us, not with them.”

Gun-control advocates and groups representing victims of domestic violence praised the court Friday for upholding what they described as an effective protection for women and their families. Firearms are used in about half of domestic violence homicides, and more than half of female homicide victims are killed by current or former male partners.

The Supreme Court “rightly refused to end a common-sense safety measure that has been making our families and communities safer for decades,” Esta Soler, president of the nonprofit Futures Without Violence, said in a statement.

The gun-rights organization, Gun Owners of America, decried the court’s decision, saying it would result in the disarming of people who have never committed domestic violence. Individuals like Rahimi who are deemed dangerous should be prosecuted, the organization said, and punished.

“These restraining orders do not prove someone guilty of a violent crime, and they often are weaponized by attorneys,” the group’s senior vice president Erich Pratt said in a statement. “For those people to lose their enumerated rights, even for a temporary period of time, is a disgrace. If someone is dangerous, charge them with a real crime, convict them in a court of law, and get them out of society.”

Last week, the Supreme Court ruled against the federal government in a different gun rights case, overturning the federal ban on bump stocks announced by the Trump administration after the devices were used in a 2017 mass killing on the Las Vegas Strip.

In its 6-3 ruling, the majority said bump stocks, which allow guns to fire bullets in rapid succession, do not qualify as machine guns under a 1986 law that barred civilians from owning new versions of the weapons.