The Supreme Court on Friday upheld the federallaw making it a crime for anyone subject to a domestic violence court order to possess a gun. The 8-to-1 decision was the first since the court in 2022 broke sharply with the way gun laws had previously been evaluated by the courts.
Back then the court’s conservative supermajority, led by Justice Clarence Thomas, declared for the first time that for a gun law to be constitutional, it had to be analogous to a law that existed at the nation’s founding in the late 1700s.
But on Friday, over Thomas’ lone dissent, the court seemed to draw that line more flexibly. Writing for the eight justice court majority, Chief Justice John Roberts said, “We have no trouble” concluding that the federal law banning firearms for domestic abusers, subject to court order, is constitutional. Not only does the accused abuser have a right to be heard before there is any court order, he said, but that order is temporary, not open-ended.
Roberts said that a gun restriction need not be a “dead ringer” or a “historical twin” of gun restrictions that harken back to the time of the nation’s founding.
Some courts, he said, “have misunderstood the methodology of our recent decisions,” adding that were the court to adopt an approach that required such a close match, it’s rule would apply “only to muskets and sabers.” The court, he said, did not mean to suggest “a law trapped in amber.”
“This is a major win for gun safety reform advocates,” said UCLA law professor Adam Winkler, who has written extensively about guns and gun rights.
“Because of the very imperfect fit between history and tradition of gun laws and this particular prohibition, we’re likely to see lower courts use this ruling to justify upholding a wide range of gun law,” he said.
But Joseph Blocher, co-director of the Duke Center for Firearms Law, disagreed. “I think what we got here is a slight revision. This is about the narrowest possible win I think the gov’t could have gotten.”
As Blocher noted, the case before the court was, by everyone’s reckoning an “easy case.”
The defendant, Zackey Rahimi, assaulted his girlfriend in a parking lot, threatened to shoot her if she told anyone, and fired a gun at a witness. The girlfriend went to court and a judge, after finding that Rahimi posed a credible threat of future violence, issued a court order banning him for two years from contact with the girlfriend or her family. Rahimi repeatedly violated the court order, , threatened another woman with a gun, and fired a gun in five different locations in a period of one month—incidents that ranged from shooting a gun repeatedly at another driver after a collision, to firing multiple shots in the air after a restaurant declined a friend’s credit card.
When police finally searched his residence, they found a pistol, a rifle, ammunition, and a copy of the restraining order. Rahimi pleaded guilty to charges of violating the federal gun law and was sentenced to six years in prison. But he continued to press his legal challenge, and ultimately the Fifth Circuit Court of Appeals ruled that the law unconstitutional because there was no law like it in the late 1700s. On Friday the U.S. Supreme Court reversed that decision.
Easy case or not, Friday’s ruling involved well over 100 pages of writing, only 18 pages of which were the Chief Justice’s majority opinion. Three of the court’s conservatives—Justices Gorsuch, Barrett, and Kavanaugh, who joined Roberts’ opinion, still spilled over 40 pages of ink explaining their views of originalism, the doctrine that they all adhere to, based upon the notion that constitutional questions should be resolved based on the constitution’s meaning at the time the nation was founded.
“This case highlights that even justices claiming to do originalism are products of the generation they come from,” observed UCLA’s Winkler. Although, “Americans in the 17 and 1800s didn’t regularly disarm people who were thought to be dangerous,” he said, conservative originalist justices still “recognize that we have to ban dangerous people from possessing firearms today and so they jump through hoops to try to say this is still originalism.”
UCLA’s Eugene Volokh, has a different view. “It may be a difficult approach at times, but it’s the right approach,” he said.
Just how the court will rule in future cases is unclear. Volokh and other gun law experts note there are lots of gun issues headed for the Supreme Court—everything from gun bans for convicted felons to laws banning guns for people with a mental health history, gun bans for 18-to-20 year olds, and bans on certain types of ammunition and weapons. And that just scratches the surface.
But for now groups that work with the victims of domestic violence are thrilled. “These protection orders exist for a reason,” observes Melina Melazzo, of the National Network to End Domestic Violence. “Because we know, for survivors of domestic violence, when a male abuser has access to a firearm, the risk that he will choose to shoot and kill a female intimate partner increases by one thousand percent."
Other supporters of the ban on guns for domestic abusers noted that women aren’t the only victims in these cases. Domestic violence with a gun is a leading cause of death for children. More than half of all mass shootings are perpetrated by people with a record of domestic violence. And domestic violence calls result in the highest number of police fatalities, almost all of them involving guns.
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