Supreme Court could go further in arming Americans
How much farther will the Supreme Court go to assist in the arming of America? That has been the question since last June, when the court ruled that New York’s century-old gun licensing law violated the Second Amendment. Sooner than expected, we are likely to find out the answer.
On March 17, the Biden administration asked the justices to overturn an appeals court decision that can charitably be described as nuts, and accurately as pernicious. The decision by a three-judge panel of the U.S. Court of Appeals for the
5th Circuit invalidated a federal law that for almost 30 years has prohibited gun ownership by people who are subject to restraining orders for domestic violence.
The 5th Circuit upheld the identical law less than three years ago. But that was before President Donald Trump put a Mississippi state court judge named Cory Wilson on the appeals court. (As a candidate for political office in 2015, Wilson said in a National Rifle Association questionnaire that he opposed both background checks on private gun sales and state licensing requirements for potential gun owners.)
Wilson wrote in a decision handed down in March that the appeals court was forced to repudiate its own precedent by the logic of the Supreme Court’s decision in the New York licensing case. He was joined by another Trump judge, James
Ho, and by Edith Jones, an appointee of President Ronald Reagan; Jones has long been one of the most aggressive conservatives on the country’s most conservative appeals court.
Now it is up to the justices to say whether that analysis is correct.
Fifteen years after the Supreme Court’s Heller decision interpreted the Second Amendment to convey an individual right to own a gun, there is no overstating the significance of the choice the court has been asked to make. Heller was limited in scope: It gave Americans a constitutional right to keep handguns at home for selfdefense. The court’s decision last June in New York State
Rifle and Pistol Association v. Bruen was on the surface also quite limited, striking down a law that required a showing of special need in order to obtain an unrestricted license to carry a concealed gun outside the home. New York was one of only a half-dozen states with such a requirement, as the court put it in the Bruen decision.
What was not limited about the New York decision — indeed, what was radical — was the analysis that Justice Clarence Thomas employed in his opinion for the 6-3 majority. Following Heller, courts had evaluated gun restrictions by weighing the personal Second Amendment claim against the government’s interest in the particular regulation, a type of balancing test that has long been common in constitutional adjudication. The Bruen decision rejected that approach, instead placing history above all else.
“The government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms,” Thomas wrote.
As a result of that decision, Shawn Hubler, a national correspondent for the Times, reported earlier this month, “gun historians across the country are in demand like never before as lawyers must now comb through statutes drafted in the Colonial era and the early years of the Republic to litigate modern firearms restrictions.”
She noted that “cases now explore weapons bans in early saloons, novelty air rifles on the Lewis and Clark expedition, concealed carry restrictions on Bowie knives and 18th century daggers known as ‘Arkansas toothpicks,’ and a string-operated ‘trap gun’ that may or may not be comparable to an AR-15 semiautomatic rifle.”
Wilson, in his opinion for the 5th Circuit, said the prohibition on gun ownership by a person under a court restraining order for domestic violence failed “the historical tradition” test crafted by Thomas. While there were laws at the time of the country’s founding that disarmed people who were deemed “disloyal” or “unacceptable,” Wilson asserted that the purpose of those laws was to safeguard the “political and social order” rather than to protect individuals from violence. Consequently, he said, the old laws were not sufficiently “relevantly similar” to the modern law, known as Section 922(g) (8) of the U.S. code, to meet the Supreme Court’s history test.
The defendant in this case, Zackey Rahimi, was under a restraining order after he allegedly assaulted and threatened to shoot his ex-girlfriend, the mother of his child, when he went on a shooting spree in Texas, firing a weapon on five different occasions around Arlington. He pleaded guilty to violating Section 922(g) (8) while at the same time challenging the law’s constitutionality.
Rahimi, “while hardly a model citizen, is nonetheless among ‘the people’ entitled to the Second Amendment’s guarantees,” Wilson wrote. Noting that a court-ordered restraining order is civil rather than criminal in nature, Wilson asked rhetorically whether, if Rahimi’s civil offense was enough to disqualify
him from owning a gun, as the law required, a similar disqualification might apply to those who violate a speed limit or fail to recycle.
Clearly, the question now for the Supreme Court is not only the validity of one statute but how the Bruen decision’s newly minted “historical tradition” requirement will apply to any and all gun regulations. The 5th Circuit offered a lazy and cherry-picked history that “missed the forest for the trees,” Solicitor General Elizabeth Prelogar wrote in the government’s Supreme Court petition.
While it was clear that “dangerous individuals could be disarmed” at the time of the Constitution’s framing, she wrote, the 5th Circuit treated “even minor and immaterial distinctions between historical laws and their modern counterparts as a sufficient reason to find modern laws unconstitutional.” Under such an analysis, she argued, “few modern statutes would survive judicial review.” (While the Supreme Court is not obliged to hear the government’s appeal, United States v. Rahimi, the court almost never declines to review a decision that has invalidated a federal statute.)
In a forthcoming article, professors Joseph Blocher of Duke Law School and Reva B. Siegel of Yale point out that there is a reason for the failure of early American lawmakers to consider domestic violence a reason to take away an abuser’s gun: The very concept of domestic violence was alien to the Constitution’s framers because wives were completely subordinate to their husbands and wife beating was widely tolerated.
In enacting Section 922(g) (8) in 1994, they write, “Congress acted to alter the government’s historical refusal to intervene in intimate partner violence — a failure that was rooted in the belief that a man had authority to ‘correct’ subordinate members of the household, including his wife.”
They note that “government response to violence between intimates only began to shift in the 1970s as this system of gender hierarchy began slowly to break down.” Protecting women from intimate partner violence is thus inherent in, and not — as the 5th Circuit assumed — different from protecting the “political and social order.”
There is no doubt that under the old interest-balancing test, the government would prevail. The interest in keeping guns out of the hands of domestic abusers is that obvious, as even the 5th Circuit found in 2020. “The parties agree,” the court noted then, “that reducing domestic gun abuse is not just an important government interest, but a compelling one. They only dispute whether § 922(g) (8) is reasonably adapted to that interest. We hold that it is.”
The government’s petition points out that there are more than 1 million acts of domestic violence in the United States every year “and the presence of a gun in a house with a domestic abuser increases the risk of homicide sixfold.”
Will a fact like that matter to the Supreme Court? Do facts still matter at all? That may now be the most urgent question this case presents, not only to the court but to the country.