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Supreme Court Upholds Gun Ban for Domestic Violence Offenders: A Landmark 8-1 Decision

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In layman’s terms: individuals subject to a domestic violence restraining order may not possess firearms.

Today the Supreme Court ruled, in an 8-1 decision, to uphold a law prohibiting gun possession by those subject to domestic violence-related restraining orders. The case was argued in November of 2023.

In United States v. Rahimi, the court answered the question whether “18 U.S.C. 922(g)(8), which prohibits the possession of firearms by persons subject to domestic violence restraining orders, violates the Second Amendment on its face.”

Zackey Rahimi was indicted under a federal statute that prohibits individuals subject to a domestic violence restraining order from possessing a firearm. Rahimi challenged the prohibition, arguing it violated the Second Amendment. The District Court denied Rahimi’s motion to dismiss on Second Amendment grounds. While Rahimi’s case was on appeal, the Supreme Court decided the landmark Bruen case, and in that context, the Fifth Circuit reversed the Rahimi dismissal, concluding that the Government had not shown that the prohibition “fits within our Nation’s historical tradition of firearm regulation.”

In a brief synopsis of the 103-page decision, Chief Justice John Roberts held, “When an individual has been found by a court to pose a credible threat to the physical safety of another, that individual may be temporarily disarmed consistent with the Second Amendment.”

The controversial element of the decision revolves partly around by whom and how that decision is made, implicating the “red flag laws” often used to bring domestic violence restraining orders. Red flag laws are often abused and are fraught with Constitutional problems that include lack of due process and turning the “innocent until proven guilty” cornerstone concept of our legal system on its head.

Perhaps even more significant is the question of whether the Rahimi decision properly applies the Bruen framework to a very obvious Second Amendment issue, a question on which even the 2A community and legal experts seem split. The court appears to address the text and history of the issue at hand, but many disagree with the Court’s interpretation, especially given the lack of a specific citation that would support its position.

In regard to the historicity of such a law, the court concluded in the majority opinion, “Since the founding, our Nation’s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms. As applied to the facts of this case, Section 922(g)(8) fits comfortably within this tradition.”

Justice Thomas, who authored the Bruen opinion, disagreed vehemently. In the scathing, lone dissent, he asserts:

After….Bruen, this Court’s directive was clear: A firearm regulation that falls within the Second Amendment’s plain text is unconstitutional unless it is consistent with the Nation’s historical tradition of firearm regulation. Not a single historical regulation justifies the statute at issue…

He goes on to add, “The Government, for its part, tries to rewrite the Second Amendment to salvage its case. It argues that the Second Amendment allows Congress to disarm anyone who is not “responsible” and “law-abiding.” Not a single Member of the Court adopts the Government’s theory. Indeed, the Court disposes of it in half a page—and for good reason. Ante, at 17. The Government’s argument lacks any basis in our precedents and would eviscerate the Second Amendment altogether.”

In a Twitter post, Gun Owners of America agreed, writing, “Justice Thomas was the only one to correctly apply the text, history, and tradition of the Second Amendment in his dissent.”

Chuck Michel, President & General Counsel of the California Rifle & Pistol Association, made the following statement on Twitter: “As we expected, the Court’s ruling is very narrow. It did not decide whether the government can prohibit broad classes of people from possessing arms permanently, and it rejected the government’s argument that “irresponsible” people could [be] prohibited from possessing arms.”

Today’s decision provides insight into a possible shift in the Court’s interpretation of the broader understanding of Constitutional rights. Writing in a concurring opinion, Justice Kavanaugh observes, “Read literally, those Amendments might seem to grant absolute protection, meaning that the government could never regulate speech or guns in any way. But American law has long recognized, as a matter of original understanding and original meaning, that Constitutional rights generally come with exceptions.” Justice Barrett affirmed this sentiment in her concurrence, writing, “Despite its unqualified text, the Second Amendment is not absolute.”

Anti-gun states like New Jersey, which admittedly despises and undermines the Bruen ruling with its disdain for concealed carry, were quick to embrace today’s decision without considering the civil liberties implications. New Jersey Attorney General Matthew Platkin wrote in a statement:

We are relieved that the U.S. Supreme Court upheld sensible laws preventing domestic violence abusers from accessing firearms. But this case should never have gotten this far. As explained in the amicus brief we filed, joined by 25 other States, the radical judges on the Fifth Circuit made it easier for domestic abusers to obtain weapons, which was both bad Constitutional law and bad for public safety. That decision was only made possible by the profoundly misguided decision in Bruen.

If anything, today’s decision creates more questions than answers. How will red flag laws be applied going forward? And how long may a person be disarmed? Justice Gorsuch acknowledges that the decision is indeed narrow and limited in scope:

So, for example, we do not decide today whether the government may disarm a person without a judicial finding that he poses a “credible threat” to another’s physical safety. §922(g)(8)(C)(i); see ante, at 8. We do not resolve whether the government may disarm an individual permanently….We do not determine whether §922(g)(8) may be Constitutionally enforced against a person who uses a firearm in self-defense….Nor do we purport to approve in advance other laws denying firearms on a categorical basis to any group of persons a legislature happens to deem, as the government puts it, “not ‘responsible.’….We do not resolve any of those questions (and perhaps others like them) because we cannot.

If there are any positives to the unusual and complex decision, it would be found in this statement, which affirms that even modern firearms, though distinct in appearance, advanced technology, and capability, are still protected by the Second Amendment:

Nevertheless, some courts have misunderstood the methodology of our recent Second Amendment cases. These precedents were not meant to suggest a law trapped in amber. As we explained in Heller, for example, the reach of the Second Amendment is not limited only to those arms that were in existence at the founding. 554 U. S., at 582. Rather, it “extends, prima facie, to all instruments that constitute bearable arms, even those that were not [yet] in existence.” Ibid. By that same logic, the Second Amendment permits more than just those regulations identical to ones that could be found in 1791. Holding otherwise would be as mistaken as applying the protections of the right only to muskets and sabers.

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