Supreme Court revisits the scope of the right to bear arms in the wake of latest mass shooting

By Ariane de Vogue, CNN

(CNN) — It was only a year ago that the Supreme Court issued a landmark Second Amendment opinion that expanded gun rights nationwide and established that firearms rules must be consistent with the nation’s “historical tradition.”

Majority opinion author Justice Clarence Thomas infuriated supporters of gun control and elated advocates of gun rights but also generated confusion among lower court judges who found themselves reconsidering thousands of firearms rules.

Now, on Tuesday, the justices are hearing oral arguments in the wake of the yet another mass shooting, in a case asking it to consider the scope of its 2022 decision in New York State Rifle & Pistol Association v. Bruen, this time in the context of domestic violence.

The Supreme Court is considering a section of federal law that bars an individual subject to a domestic violence restraining order from possessing a firearm.

The Supreme Court’s ultimate decision could impact almost every type of gun control law, including one that President Joe Biden’s own son is charged with violating.

“Rahimi offers a chance for the justices to clarify aspects of Bruen’s test that have divided lower courts – including how judges should assess the historical tradition of gun regulation and how closely modern laws must mirror those that existed during the Founding Era,” said Andrew M. Willinger of the Duke University School of Law.

Lower courts have cited Bruen in cases blocking laws restricting the use of concealed firearms, prohibiting guns in houses of worship and banning assault weapons.

Last month in California, for instance, a federal judge struck down an assault weapon ban the state argued was needed to prevent mass shooters from acquiring those weapons. Many of the banned guns, the judge said, are also commonly used by “law-abiding” citizens for self-defense.

“California’s answer to the criminal misuse of a few is to disarm its many good residents. That knee-jerk reaction is constitutionally untenable, just as it was 250 years ago,” Judge Roger Benitez wrote.

Protective order issued after threatening girlfriend

The dispute before the court arose in December 2019 when Zackey Rahimi and his girlfriend, with whom he shares a child, had an argument in a parking lot. The government claimed that Rahimi threatened to take the child away and then dragged his girlfriend back to the car, retrieved a gun and fired at a nearby witness.

In February 2020, the girlfriend was granted a protective order finding that Rahimi had committed family violence. The order also suspended his handgun license and prohibited him from possessing a firearm.

Beginning that December, Rahimi took part in five shootings in Texas, culminating on January 7, 2021, when he fired shots in the air at a Whataburger restaurant after his friend’s credit card was declined.

When the police ultimately obtained a search warrant for his home, they found a rifle and a pistol and Rahimi admitted that he was subject to the protective order that had been entered in the civil proceeding.

A federal grand jury indicted him, and Rahimi moved to dismiss the indictment arguing that the law was unconstitutional. He lost his court effort.

But then the Supreme Court issued its Second Amendment decision in Bruen.

After reviewing the decision, the 5th US Circuit Court of Appeals ruled in favor of Rahimi, saying that Bruen “fundamentally changed our analysis of laws that implicate the Second Amendment, rendering our prior precedent obsolete.”

The judges pointed to the holding that the government must justify a gun regulation as consistent with the nation’s “historical tradition.”

The statute, the 5th Circuit wrote, is an “outlier that our ancestors would never have accepted.”

Biden administration appeals

In its appeal to the Supreme Court, the Biden administration defends the law, arguing that the Second Amendment right to bear arms is “not unlimited” and it does not prohibit Congress from disarming Rahimi and other individuals subject to domestic-violence protective orders.

Pointing to history, Solicitor General Elizabeth Prelogar argued that history “before, during and after the Founding Era” allowed the government to disarm individuals who were dangerous.

“Individuals subject to domestic-violence protective orders pose an obvious danger to their intimate partners because guns often cause domestic violence to escalate to homicide and because abusers often use guns to threaten and injure their victims,” she wrote.

“Every month, an average of 70 women are shot and killed by an intimate partner,” lawyers for Everytown for Gun Safety told the justices in a friend of the court brief filed with the court supporting the law.

They argued that “access to a gun makes it five times more likely that a woman will die at the hands of her abuser,” noting that in 2019, nearly two-thirds of domestic homicides in the United States were committed with a gun.

J. Matthew Wright, a federal public defender in North Texas, says the justices should maintain their Bruen stance and therefore “the law is unconstitutional on its face.”

The federal government, Wright said, “has yet to find even a single American jurisdiction that adopted a similar ban while the founding generation walked the earth.”

He disputed some of the findings in the civil proceeding that produced the restraining order against his client and stressed that it arose from a “one-sided” process that included “boilerplate findings” over circumstances he questioned.

Wright said that the founding generation did respond to domestic violence in numerous ways, but never by banning possession of weapons.

“Whatever the founding generation believed about state and local legislatures’ power to restrict firearms they would have resisted a federal law purporting to say which citizens could, and which citizens could not, keep firearms,” Wright argued in court papers.

Justices to watch

At oral arguments, the groups will pay special attention to select justices.

The 6-3 Bruen decision broke along familiar conservative-liberal ideological lines.

But Justice Brett Kavanaugh, joined by Chief Justice John Roberts, wrote separately to stress that the Second Amendment right is not unlimited.

The Second Amendment is “neither a regulatory straitjacket nor a regulatory blank check,” Kavanaugh said.

He wrote that “properly interpreted” the Second Amendment “allows a variety of gun regulations.”

In addition, Justice Amy Coney Barrett, when she served on a lower court, dissented when her colleagues rejected a Second Amendment challenge from a man with a felony who was prohibited from possessing a firearm under both federal and Wisconsin law.

“History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns,” Barrett wrote in 2019.

But she emphasized that the power extends only to people who are “dangerous.”

She said that the fact that the law included all felons “both violent and nonviolent” made it unconstitutional as applied to the plaintiff in the case – suggesting she is interested in developing some kind of standard based on “dangerousness.”

“Questions and comments by Justices Barrett and Kavanaugh and the Chief Justice at oral arguments may be especially illuminating, given their past dissenting and concurring opinions in Second Amendment cases,” Willinger said.

The Hunter Biden tie-in

Tuesday’s case will also attract the attention of the political branches given the possible effect on the following charges filed against President Joe Biden’s son Hunter.

That’s because the Supreme Court’s ultimate decision in Rahimi will impact court decisions that relied upon Bruen to overturn other federal gun laws, including one Hunter Biden has been charged under.

One of those cases involves a law which prohibits the possession of firearms by a person who is an “unlawful user of or addicted to any controlled substance.” The 5th Circuit struck it down earlier this year, relying heavily on both Bruen and its Rahimi rulings.

Patrick Daniels was stopped in 2022 for driving without a license plate. A search of the car uncovered several marijuana cigarette butts, a loaded pistol and a loaded rifle. A federal grand jury indicted Daniels for possessing a firearm as an unlawful user of a controlled substance. The 5th Circuit held that the law is not “consistent with our tradition of gun regulation.”

Hunter Biden’s legal team has signaled that they plan to use the appeals court’s decision as part of their defense, with his attorney Abbe Lowell previously telling CNN that “the constitutionality of these charges are very much in doubt.”

Their posturing is notable given the fact that it’s at odds with the Biden administration’s position on the federal gun law.

In an op-ed published last week in USA Today, the younger Biden also criticized the nature of his case, writing that he had been charged for “possessing an unloaded gun for 11 days five years ago – charges that appear to be the first ever of their kind brought in the history of Delaware.”

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